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Unfair Dismissal

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Was it wrong for a tribunal to consider events after a decision to dismiss had been taken, when considering an unfair dismissal claim?

Yes, held the EAT in Citizens Advice Merton and Lambeth Ltd v Mefful.

The Claimant was a CAB manager who was made redundant in August 2012. He brought claims for unfair dismissal (including for a protected disclosure), disability discrimination and victimisation. The Respondent started a restructure process in February 2012. The tribunal found that the decision to dismiss the Claimant had been taken (without his knowledge) on 19th March 2012, that the Claimant lacked capability and engagement, it was a 'done deal', and everything after that date in the redundancy process had been a sham. The Claimant became disabled in April 2012. The tribunal held that the dismissal was tainted by disability discrimination, relying on incidents from April 2012 onwards.

The EAT held that the tribunal had been wrong to consider events that took place after the decision to dismiss had been taken and so find that the dismissal was disability related, since in this case disability could not have affected the reason for dismissal.

In relation to the public interest disclosure claim, since the tribunal had found that the Claimant's dismissal was because of his lack of capability and engagement, a protected disclosure could not be the principal reason for dismissal, so that claim could not succeed. However, a victimisation claim under the Equality Act 2010 could succeed, as a protected act need only have been a significant influence on the Claimant's treatment, a point which had to be reconsidered.

The case was remitted for reconsideration of various points, after its fourth appeal to the EAT.

Thanks to Ed McFarlane of Worknest LAW for preparing this case summary.