The claim can go on…even if it’s not worth anything…

In Evans v. London Borough of Brent [2020] UKEAT/0290/19, the Employment Appeal Tribunal (EAT) has ruled that an unfair dismissal claim should not be struck out, even though there was no prospect of a monetary award. 

This case is a stark warning to employers of the importance of ticking all the procedural boxes, even where they have a slam dunk gross misconduct case.  Otherwise, they could find themselves in the galling position of having to expend legal fees and losing an unfair dismissal claim…

Background

Dr Evans was deputy head teacher at a Borough of Brent school for 12 years.  Another teacher alleged misconduct and financial mismanagement by members of the senior management team, including Dr Evans.  He was suspended and a formal investigation commenced.

Dr Evans was invited to a disciplinary hearing. He was given less than three weeks’ notice and an investigation report that ran to more than 800 pages. He asked to postpone the disciplinary hearing to give him more time to prepare and to enable his sister to accompany him.

The school refused and held the hearing in Dr Evans’ absence.  At the hearing it was concluded that Dr Evans received unauthorised overpayments from the school and he enabled unauthorised overpayments to be made to another member of staff.  Dr Evans was dismissed for gross misconduct.

Dr Evans brought a claim in the Employment Tribunal (ET) against the Borough of Brent for unfair dismissal.

The claim was stayed pending a separate High Court action.  The Borough of Brent issued a claim against Dr Evans and five others for repayment of sums.  The Council won and the High Court ordered Dr Evans to repay over £46,000 to the school.

The ET found that, procedurally, there was a question as to fairness owing to the school’s refusal to postpone the disciplinary hearing.  Therefore, despite clear gross misconduct, it could not be said that Dr Evans’ claim of unfair dismissal had no reasonable prospect of success. 

However, due to the High Court’s finding, the ET believed that there was no prospect of Dr Evans being awarded any compensation and therefore struck out the unfair dismissal claim. 

Dr Evans appealed to the EAT.

The EAT’s decision

The EAT upheld Dr Evans’ appeal after considering two questions:

  1. Was there value in a finding of unfair dismissal, even without a financial award?  Yes.  It is in the interests of justice to hold an employer to account for procedural unfairness, even if there is no financial award.
  2. Was such a claim an abuse of process?  No.  There had been, for example, no express finding of bad faith.

So even when misconduct is clear, employers can be required to defend claims against them.

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Rebecca Jorgensen

About Rebecca Jorgensen