Employment lawBy Martin Edwards, Mace & Jones, LiverpoolThe reason for dismissalWilson v Post Office (2000) IRLR 834The Court of Appeal has emphasised that an employment tribunal is not merely a fact-finding body, it is an industrial jury.

The concept of the industrial jury should be taken seriously.

The case concerned an employee with a history of absence from work due to various medical conditions.

In their notice of appearance, the employers referred to the dismissal procedure and the decision to dismiss the employee 'by reason of his unsatisfactory attendance record'.

However, in the section of the notice of appearance which required the employer to state the reason for dismissal, they put 'incapability by reason of unsatisfactory attendance record'.

Because of the use of the word 'incapability', the tribunal found that the reason for the dismissal related to his capability on grounds of ill health.

That was a potentially fair reason, but the dismissal was held, on the facts, to be unreasonable.

The Employment Appeal Tribunal (EAT) allowed the employers' appeal on the ground that the tribunal had wrongly characterised the reason for dismissal.

The EAT held that the real reason was the employee's unsatisfactory attendance record and that amounted to 'some other substantial reason'.

The EAT went on to hold that the dismissal was fair.

The Court of Appeal accepted that the tribunal's characterisation of the reason for dismissal amounted to an error of law with which the EAT could interfere.

The tribunal's mistake was to think that because the word 'capability' had been used, the case had to be addressed under s.98(2)(a) of the Employment Rights Act when in fact, as the EAT said, it should have been addressed under s.98(1)(b).

However, the case should have been remitted to the employment tribunal.

According to the Court of Appeal, only in an extreme case that is very clear that an appellate body may properly say that a tribunal would inevitably have reached a particular conclusion when in the original case, albeit proceeding mistakenly, the tribunal came to the contrary conclusion.

On the facts, it could not confidently be said that it was inevitable that an industrial jury would consider the dismissal fair.Disciplinary proceduresR v Chief Constable of Merseyside Police, ex parte Bennion (2000) IRLR 821.The High Court decided that a chief constable acted unlawfully by hearing disciplinary charges against a police officer when he and the officer were also opposing parties in a pending case in which sex discrimination was alleged and which included a complaint in relation to the disciplinary charges.

The chief constable was in breach of the principle that no-one should be a judge in his own cause or act as a judge where there is a real possibility of partiality.

The principle is brought into play where someone in the position of a judge is head of an organisation being sued by the person whom he is called on to judge, and the outcome of the proceedings before him may have a material bearing on the outcome of the action brought by the person whom he is judging against the organisation of which he is head.In the present case the chief constable was making a judicial, rather than management, decision in deciding whether the police officer was guilty of the disciplinary charges against her.

He should have exercised his discretion to refer the hearing of the disciplinary proceedings to another chief constable.

An application for judicial review of his decision not to do so was therefore allowed.

The editor of IRLR points out that this ruling 'raises questions about disciplinary procedures in organisations where the chief executive takes disciplinary decisions'.