Contract of employment - transfer of employee to different job following internal inquiry into employee's misconduct - tribunal's finding as to dismissal at preliminary hearing error of law

Donlon v City of Wakefield Metropolitan District Council:CA (Lords Justice Kennedy, Brooke and Mr Justice Holman):23 July 2003

The local authority, the employer, decided to dismiss the claimant, an area housing manager, for misconduct on 31 August 2000, but an appeal board allowed the claimant's appeal.

At a meeting on 18 October 2000 with the claimant, the employer proposed to transfer him to a different managerial post and, on 1 March 2001, the claimant accepted that proposal.

On 15 May 2001, the employee presented an originating application complaining that a letter from the authority, dated 2 March, indicated that he had been dismissed, which the employer denied.

The employment tribunal, at a preliminary hearing, held that the claimant had been unfairly dismissed in October, contrary to a term of his employment which did not permit any change in his employment status, but dismissed the application because it had not been filed until three months after the dismissal.

The Employment Appeal Tribunal remitted the case for full hearing to find whether there had been a dismissal.

The local authority appealed.

Raphael Cohen (instructed by Legal Services of Wakefield Metropolitan District Council) for the local authority; David Bean QC (instructed by the Unison Employment Unit) for the claimant.

Held, dismissing the appeal, that when the claimant did not claim that he had been dismissed on the date, and the employer denied that he had been dismissed at all, it was an error of law for the tribunal to conclude at a preliminary hearing that the claimant had been dismissed in October; and that in a case where the variation of the employment status was claimed to be a dismissal of the employment, the tribunal should hear the whole case with oral evidence to decide whether there had been an actual or constructive dismissal and whether it was unfair and contrary to section 97 of the Employment Protection Act 1996.