Russell Bailey’s successful appeal to the Employment Appeal Tribunal (“EAT”) in the case of London Central Bus Company Ltd v Manning UKEAT/0103/13/DM has now been reported on the EAT website.
The employment tribunal had decided that the employer, represented by Russell, had fairly dismissed the employee on grounds of incapacity. However, they went on to decide that the dismissal had been rendered unfair because, at the appeal stage, the employer had not discussed with the employee the extant vacancies, all of which they found, as a fact, to be unsuitable.
The employment tribunal decided that the procedural shortcoming made the dismissal unfair albeit with a finding of 100% Polkey. Since the employee had long service, the basic award alone was £10,000. Russell submitted that the employment tribunal’s approach was erroneous. He contended that a procedural shortcoming does not, of itself, render a dismissal unfair but, applying the test formulated by Morritt LJ in Westminster City Council v Cabaj [1996] IRLR 399, only does so where it denied to the employee the opportunity of showing that the employers reason for the dismissal, here capability, was an insufficient reason for the purpose of S.98(4).
Plainly, an omission to discuss unsuitable vacancies, did not deny anything to the employee. The EAT agreed and, allowing the appeal in its entirety, substituted a finding that the dismissal was fair.
