In this article we’re going to take a look at the recent Employment Appeal Tribunal case of DSG Retail Ltd v Mackey  UKEAT 0054_13_0807, a case which entailed an examination of whether an Employment Tribunal had erred in making a finding of unfair dismissal.
The facts in DSG Retail Ltd v Mackey
Mr Mackey, the Claimant, was employed by DSG Retail Ltd, the Respondent, for a period of 26 years between 1986 and 2012 and was at the time of his dismissal a store manager. Boxing Day was one of DSG Retail’s busiest days of the year and all staff were expected to work in the store on that day. The Claimant’s rugby team, the Scarlets, were playing on Boxing Day and it was noted by management at the Respondent that the Claimant could be seen leaving the store for a period of 2 hours that afternoon. The Claimant claimed that he was actually at the store at the time in question but the Respondent carried out a full investigation and summarily dismissed him.
The Employment Tribunal found that the dismissal was unfair, principally for the reason that the Respondent had stated that it had dismissed for a conduct reason but that the real reason was a breakdown of mutual trust and confidence between the parties.
The Respondent appealed the judgment.
The law relating to unfair dismissal
Under s.94 of the Employment Rights Act 1996 an employer must first identify a potentially fair reason for the dismissal of the employee and then be able to demonstrate that it made a decision that was within the range of reasonable responses in dismissing the employee (as well as taking steps to ensure procedural fairness in the dismissal).
The issues at hand in the appeal in this case were that the Employment Tribunal contended that the Respondent hadn’t identified the correct potentially fair reason for dismissal and that the Respondent had also failed to dismiss fairly in both the substantive and procedural senses.
The Employment Appeal Tribunal’s decision in DSG Retail Ltd v Mackey
The Employment Appeal Tribunal allowed the Respondent’s appeal. It found that the Employment Tribunal’s reason for its finding on the point relating to the potentially fair reason for dismissal was “unsupportable” and that Employment Tribunal had considered irrelevant points and/or overlooked important considerations and/or substituted its own view for that of the employer in a number of its findings.
Our view on the EAT’s judgment in DSG Retail Ltd v Mackey
The Employment Appeal Tribunal’s decision in DSG Retail Ltd v Mackey was undoubtedly the correct one, both legally and from a common-sense perspective. The point relating to identifying the potentially fair reason for dismissal can sometimes be a valid one in judging whether a Respondent has made a fair decision to dismiss (i.e. if it’s clearly confused competence with conduct) but this will rarely be a determining factor. Whether viewed as a “SOSR” potentially fair reason or a conduct issue the Employment Appeal Tribunal found that the Respondent was – after having undertaken what was acknowledged by the Tribunal to be a fair and thorough investigation – entitled to dismiss Mr Mackey for gross misconduct.