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In the case of Hawkes v Ausin Group (UK) Ltd UKEAT/0070/18/BA, the Employment Appeal Tribunal (“EAT”) upheld the decision of the Employment Tribunal (“ET”) when they agreed that a meeting prior to dismissal of the employee would have been futile as it would have made no difference to the decision to dismiss.  They also upheld the ET’s finding of fact that the employee was committed to undertaking a seven-week exercise as a Reservist in the Marines and it was because of this commitment that the meeting, even if held, would have made no difference to the decision to dismiss.

The facts in Hawkes v Ausin Group (UK) Ltd

The Claimant was a Reservist in the Marines and commenced employment with the Respondent, a small employer, on 7 September 2015 as Business Development Manager.  In June 2016 the Claimant put his name down to be considered for a 7-week training exercise with the Marines.  He was not obliged to undertake the exercise, but volunteered to do it.  However, if he was accepted onto the course, he would be required to sign an additional duties commitment form after which he would be obliged to do it.  The Claimant was accepted onto the course and signed the additional duties form in July 2016.  He did not tell the Respondent that he had volunteered for the exercise and that it was not mandatory, but this became clear to the Respondent when they completed their own enquiries.

When the Respondent expressed their concern about the Claimant going on the exercise and the way he had presented it to them, the Claimant denied that he had inferred previously that the course was mandatory, but said it was part of the training he needed to undertake during the year.

On 5 August the Respondent invited the Claimant to a meeting where he was told that he was being made redundant.  He was also told that they had not expected his commitment as a Reservist to be a significant as it was and that they could not accommodate his request to be away from the business for seven weeks.

The Claimant brought a claim in the ET for unfair dismissal.

The decision of the Employment Tribunal

The ET concluded that the Claimant was dismissed because he was going to be absent from work for a period of seven weeks and the Respondent could not sustain such an absence.  Accordingly, they found that the Claimant was dismissed for some other substantial reason (“SOSR”).  They also found that the reason for his dismissal was connected to the fact that he was a Reservist.  Pursuant to section 108(5) of the Employment Rights Act (“ERA”), the ET found they did therefore have jurisdiction to hear his complaint, notwithstanding the fact that he did not have two years’ service.

The ET then went on to consider whether or not the dismissal was fair on unfair.  They concluded that there was a potentially fair reason for dismissal and that the Respondent’s decision to dismiss was reasonable in all the circumstances, despite the fact that the Respondent had failed to hold a meeting with the Claimant before the decision was made.

The decision of the Employment Appeal Tribunal

The Claimant appealed the ET’s decision on two grounds.  His first ground was that the ET had erred by taking matters only relevant to whether or not there should be a Polkey reduction into account when considering substantive unfairness.  In particular, by considering whether the failure to hold a meeting before the decision to dismiss was made.  The Claimant also challenged the ET’s findings of fact that there was nothing in the evidence to indicate that the Claimant would have changed his mind about going on the exercise if there had been a meeting and that the Respondent’s position had been made clear to him prior to dismissal.

The Law

Section 98 of the Employment Rights Act states that it is for an employer to show that the reason (or principal reason, if more than one) for the dismissal: (i) relates to the capability or qualifications of the employee (ii) relates to conduct (iii) is that the employee is redundant (iv) that the employee could not continue to be employed without contravening the law or (vi) where it is none of the above, it is for SOSR of a kind such as to justify dismissal.  If an employer is able to show that the dismissal is for one of the reasons stated above, whether or not the dismissal is fair or unfair will depend on whether in the circumstances (including their size and administrative resources) the employer acted reasonably or unreasonably in treating it as a sufficient reason to dismiss the employee.

A Polkey reduction

Following the case of Polkey v A E Dayton Services Ltd [1988] 1 AC 344, if a dismissal is procedurally unfair, the ET will consider whether the Claimant would have been dismissed anyway if a proper procedure had been followed and has the power to adjust compensation accordingly.

With regards to the first ground of appeal, the EAT held that the ET had simply focussed on whether the failure to hold a meeting before the decision to dismiss was made rendered the dismissal unfair.  As the Claimant had made it clear that he was going on the exercise and had committed himself to it, they were entitled to conclude that the failure to hold a meeting in advance was not unfair because, based on the facts of the case, it would not have changed anything.

With regards to the second ground of appeal, the EAT disagreed that there was evidence that was presented to the ET that the Claimant may have been prepared not to go on the exercise if he had been given an ultimatum that going on it could result in his dismissal.  The EAT found that there was substantial evidence to support the ET’s finding of fact that the Claimant was committed to going on the exercise regardless of what the Respondent thought about it and as such that ground of appeal failed as well and his appeal was dismissed.

Our solicitors’ views on the case of Hawkes v Ausin Group (UK) Ltd Ltd

Sacha Barrett, a Senior Associates in the employment department at Redmans, made the following comment on the case: “This case demonstrates that, in very limited circumstances, it is possible to fairly dismiss an employee without holding a meeting with the employee prior to making that decision.  However, this case is very fact specific and employers should generally err on the side of caution and hold a meeting with an employee before dismissing wherever possible.

The decision of the Employment Appeal Tribunal in Hawkes v Ausin Group (UK) Ltd Ltd/0070/18/BA can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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