In a recent Scottish case, the Court of Session has held that an Employment Tribunal (ET) was entitled to re-label the potentially fair reason for an employee's dismissal ascribed to it by her employer.

In Logan v. Future Technology Devices International Limited the claimant was dismissed after she refused to work with a key contractor who was important to Future's success.  Her refusal led to a production stoppage which cost Future in the region of US$300,000.

Future, incorrectly, believed that she had less than one year's service and terminated her employment without going through any procedure.  This was in April 2008, when the statutory dismissal procedures were still in place and the qualifying period to bring an unfair dismissal claim was one year.

The claimant brought a claim for unfair dismissal.  Future defended the claim and cited conduct and performance as the potentially fair reasons for dismissal.  The claimant contended that the reason she had been dismissed was because the managing director of Future was unhappy with her refusal to work with the contractor and a threat she had made to resign.  She argued that this was not a conduct or performance dismissal.

The ET disagreed with the potentially fair reasons cited by Future, but found that the dismissal was potentially fair on the grounds of some other substantial reason of the kind such as to justify the dismissal.  As the statutory procedures Future had been obliged to follow at the time had not been followed, the ET found that the dismissal was procedurally unfair.  However, the ET accepted Future's argument that, had a fair procedure been followed, the claimant would have been dismissed in any event (Polkey) and assessed there was an 85% chance of the outcome having been the same.  It also accepted arguments on contribution, and reduced the claimant's award by a further 10%.  The claimant's award was therefore substantially reduced.

The basis of the claimant's appeal was, essentially, that the ET had been incorrect to re-label her dismissal as it did, and this inhibited her right to a fair trial under Article 6 of the European Convention on Human Rights.  She also argued that this went against the principles of natural justice.  The Court of Session, considering the case some 11 years after the claimant's dismissal, found that in the circumstances the ET had been entitled to take the approach that it did.  This was not a case where there was a dispute over the facts which led to the dismissal.  The parties agreed on the facts, just not the label applied to those facts.  The Court of Session accepted that, had this possible outcome not been made known to the claimant during the hearing, the decision might have impeded her right to a fair trial.  However, in this case the possibility of an SOSR dismissal had been put forward by Future in submissions to the ET and the claimant had responded to it in her submissions.  Accordingly, the claimant had known it was a possible outcome and had been given, and took, an opportunity to respond to it in her arguments.

Whilst this case does not change the law, it is rare to get a decision of this type from a higher court.  This case may be helpful to respondents who may have applied the incorrect label to a dismissal and are seeking to argue that this does not, in itself, render the decision to dismiss unfair.

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