even one failure in performance may justify dismissal (see Taylor v Alidair CA 1978 ICR 445, Court of Appeal). A tribunal must take good industrial relations practice into account (see Payne v Spook Erection Ltd  IRLR 219 ).
Instant or summary dismissal is not automatically unfair ( Treganowan v Robert Knee & Co Ltd QBD 1975 ) although clearly if an employee is dismissed without notice in non-exceptional circumstances he is likely to have a good chance of winning an unfair dismissal claim. There is no general exemption for small employers but "the size and administrative resources of the employer's undertaking" must be taken into account ( ERA 1996 s.98 (4)(a)). Thus although smallness will not justify failure to consult over impending redundancies it can justify less formality than would be expected from a larger employer ( de Grasse v Stockwell Tools Ltd  IRLR 269, EAT ). Failure by small employers to have a formal disciplinary procedure may be treated less seriously than if the employer is a large company (for an example see Shiner Ltd v Raymond Hilton 2001 IRLR 727, EAT). A defective internal appeals procedure can make a potentially fair dismissal unfair (see Byrne v BOC Ltd EAT 1992 IRLR 505, EAT where the manager to whom a dismissed employee could appeal was involved in the dismissal process). However, this will depend on all the circumstances - thus a decision of an employer's appeal panel was upheld by the Court of Appeal in Westminster City Council v Cabaj 1996 ICR 960, CA even though the panel was improperly constituted. By the same token, a procedural defect which renders a dismissal potentially unfair can be corrected at a subsequent internal appeal if it is a genuine rehearing rather than merely a review of the original decision ( Lloyd v Taylor Woodrow Construction 1999 IRLR 782, EAT, and Whitbread & Co plc v Mills 1988 ICR 776).
In deciding questions of fairness in relation to procedure Tribunals consider the overall process of the termination of employment rather than get bogged down in the minutiae of, for example, whether an internal procedure was technically a "review" or a "rehearing" (see Whitbread & Co plc v Mills 1988 ICR 776 and Adivihalli v ECGD 1998 EAT, Appeal No. EAT/917/97, unreported. The proper test is whether the procedure adopted fell within the range of reasonable procedures a reasonable employer could adopt and a tribunal should not substitute its own judgment for that of the employer. That test applies "not only to the sanction of dismissal, but also to the reasonableness of the investigation carried out by the employer; the grounds for his belief in the misconduct alleged and the procedure followed." ( Makro self-service Wholesalers Ltd v Rees, EAT on 20th June 2008 and see Sainsbury (J.) Ltd v Hitt CA 2002 EWCA Civ 1588, reported at  ICR 111 CA). This is similar to the basic test adopted in considering whether a dismissal for misconduct was fair or unfair, as set out in Midland Bank plc v Madden CA 2000 ICR 1283.
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- Fall '16
- Farah Nabilla
- The Land, Tribunal, unfair dismissal, Eat, dismissal, Employment Appeal Tribunal