Employment Law Advocates

Happy New Year everyone. For my first post of 2010, I would like to make my selection for the most important unreported case of last year. There are always significant cases that slip under the radar of the law reporters, especially if their practical usefulness outweighs their academic interest or where novel points arise about an issue peripheral to the main case. Chondol v Liverpool City Council qualifies on both counts. It generated a frisson of excitement in the media because it is yet another case that distinguishes between treatment on the grounds of a religious belief and treatment on the grounds of acts related to that belief. There was no need to report it for that reason but what is really interesting is what it says about unfair dismissal where a person is dismissed after multiple charges of misconduct.

Such cases are surprisingly common, often because evidence of earlier acts of misconduct will emerge during the investigation of another charge, but also because some employers will reopen issues which had been resolved or overlooked in order to try to justify a dismissal, especially where the evidence about the main charge is rather shaky. It may have been concerns about the latter which led the House of Lords in to conclude, in Smith v Glasgow District Council, that a dismissal is necessarily unfair if an employer has failed to establish the truth of any one of the charges that forms an important part of the reason for dismissal. This harsh conclusion can only be avoided by an express finding that the charge is not central to the dismissal. Of course, Polkey and contributory fault could reduce the compensation.

Chondol ameliorates the effect of Smith somewhat by stating that a failure to establish the truth of even a key allegation is not always fatal, on the basis that the overall reasonableness of the procedure is the issue, rather than the reasonableness of any individual element. This is established from cases such as Taylor v OCS Group although this was not cited by Justice Underhill in his decision. Indeed, it might be said that the result in Chondol follows so clearly from the decision in Taylor that there was no need to report it at all. I disagree. The problem with Taylor is that it leaves unclear which procedural flaws will be forgiven and which will not and, in the light of Smith in particular, it might be assumed that a failure to establish the truth of a charge still would not be. Chondol provides welcome clarification.