Employment Law Advocates

The judgment of the Court of Appeal in Sarkar v West London Mental Health NHS Trust is interesting in that it agrees with the decision of the Employment Appeal Tribunal as to the law but disagrees as to the outcome of the case. The employer had initially treated the misconduct of the claimant as being minor and had tried to conciliate the matter accordingly but it later changed its position and dismissed him summarily. The tribunal found that the dismissal was unfair but was overruled by a panel led by Judge McMullen. However, the Court of Appeal allowed the appeal and so restored the decision of the tribunal.

The agreement about the law is twofold. Firstly, an employer who intially characterises misconduct as being less than gross is not bound by this and is entitled, in some circumstances, to escalate one form of disciplinary procedure into one in which more severe sanctions are available. On the other hand, all of the circumstances can be taken into account in assessing the fairness of a dismissal,¬†including the fact that some managers regard the behaviour of the employee as being less serious than others and have given this impression by their choice of disciplinary procedure. This follows from the decision of the Court of¬†Appeal¬†in Airbus v Webb, in which it was held that relevant ‘circumstances’ in section 98(4) of the Employment Rights Act¬†should¬†be given¬†a wide meaning including, in that case, expired warnings.

However, having concluded that the initial¬†stance of the employer¬†can be taken into account, the issue then arises as to how¬†the original decision of the tribunal can be challenged. It was submitted for the claimant that the weight to be attached to a relevant factor is a matter for the tribunal. I would agree. It¬†is a permissible ground of appeal to say that a tribunal has given weight to an irrelevant factor but it is not possible to argue that a tribunal has given too much weight to a factor that it is entitled to consider. Therefore, Lord Justice Mummery could not agree with the Employment Appeal Tribunal ruling that the disciplinary procedure point had “taken on a disproportionate aspect” of the tribunal decision.