he Employment Act 1980
Page 59
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Later information
by Douglas Ainley HE FAIRNESS of a dismissal nd the reasonableness of an mployer's action must be idged on the basis of the in)rmation which the employer ad, at the time he took the decion to dismiss (Devis & Sons v tkins 1977).
If an employer is not aware of ?.rtain facts when he dismisses -1 employee, he cannot use inirmation he discovers later to stify his dismissal decision. A 3ulier who dismisses a driver consistently poor time-keepg but then discovers that the -iver had been stealing cornmy property, cannot use that 'formation to justify the iginal dismissal decision.
But information discovered ter is relevant. It can affect any impensation awarded to a smissed employee. Moreover, e Employment Appeals Tribu)1 in two important deci3ns has now decided that facts Iming to light during internal peals procedures should be nsidered both by employers -len reviewing their dismissal ,cision and by tribunals when sessing the fairness of that de;ion.
In the Board of Governors, the &anal Heart and Chest Hosv Nambiar, EAT ruled that e fairness of dismissal should judged by industrial tribunals the light of all the information .ailable to the employer at the id of the appeals procedure. ) information which surfaces iring the appeals procedure ust be considered as well.
Mr Nambiar, a senior medical poratory scientific officer at rompton Hospital, was smissed for refusing to carry it an urgent blood-matching quest. He appealed under the ternal appeals procedure -iere he claimed his actions tre caused by his medical con:ion as a diabetic coupled with rmful side effects of his medition.
The internal appeals body en obtained independent 3clical evidence which largely bstantiated Mr Nambiar's lims. Suitable alternative em)yment was offered to him but because Mr Nambiar insisted on full re-instatement, he was finally dismissed.
EAT rejected the view that the reasonableness of the employer's action should be decided only on the basis of the information available at the time of the original dismissal decision. Otherwise the hospital board, which originally knew nothing about Mr Nambiar's medical condition, could have totally ignored it.
EAT decided that all the information available once the internal appeals procedure waS completed, should be considered. So, in the more usual case where internal appeals procedures confirm dismissal decisions the whole procedure is relevant. Taking this broad view, EAT nonetheless found Mr Nambiar's dismissal was fair.
In Rowe v Radio Rentals Ltd, EAT ruled that industrial tribunals are entitled to take into account defects in internal appeals procedures and where such procedures are not properly followed, dismissal may be rendered unfair.
Mr Rowe was a TV field service engineer who was legitimately dismissed by his manager for doing "private" repair work. His appeal under internal procedures was heard by a regional controller and rejected.
One of the reasons why Mr Rowe claimed unfair dismissal was because the person who made the original dismissal decision was party to the appeals procedure. EAT rejected his employer's argument that any faults in their post-dismissal procedures were irrelevant and that only the situation at the date of dismissal was relevant.
EAT found that how the appeals procedure is conducted is a material consideration, otherwise employers could conduct internal appeals unfairly regardless of the consequences.
All employers should provide some form of appeal against dismissal. These important decisions confirm the need to ensure that all the facts are considered and procedures fairly operated.