Was the tribunal wrong in identifying a reason for dismissal which neither party had raised and without telling the parties prior to making a decision?
Yes, held the EAT in Stone v Burflex (Scaffolding) Ltd.
Mr Stone raised a grievance about his level of pay. Following a meeting with management he was summarily dismissed. The appellant brought a claim for unfair dismissal under s104 Employment Rights Act 1996. Despite the employer's assertions that Stone was not dismissed but had resigned, the employment judge found that the appellant had been dismissed.
However, the employment judge decided that he had not asserted a statutory right (namely the right not to suffer unauthorised deductions from pay) and that the principal reason for his dismissal was not such an assertion but was related to the availability of work and was the withdrawal of a concession to provide him with alternative work and was therefore redundancy or some other substantial reason.
The EAT considered that, on all the evidence, the finding that the appellant had not asserted a statutory right was perverse and substituted a finding to the contrary. The finding as to the reason for dismissal involved an error of law in that the employment judge had identified a reason for dismissal which neither party had contended for without raising the matter with the parties before making a decision, so as to allow them to make submissions.
Thanks to Dr John McMullen of Spencer West LLP for preparing this case summary.