Dark law between the lines – King v Eaton
02 Jun 2009
By James Medhurst
The decision of the Court of Session in King v Eaton is reported in the Industrial Relations Law Reports at [1996] IRLR 199, and is one of those cases that appears to say a lot more than is in the headnote. According to the IRLR, the tribunal at first instance was entitled to find the dismissals unfair for lack of consultation. However, in fact, the tribunal said something more interesting which is worth exploring.
The original finding was that the tribunal did not have enough evidence with which to decide upon the fairness of the dismissal because, firstly, there had been no consultation which would have provided documentary evidence, and, secondly, because the witness who appeared before it was not able to explain how the scores had been reached. This suggests that the purpose of a consultation is not only to ensure a fair process for the employee but also to create a paper trail which allows the fairness of a dismissal to be assessed. It is inappropriate for a tribunal to reassess the scores in detail but I submit, further to my previous dark law post, that it is entitled to look at the process for evidence of bad faith.
There are good reasons for this. If botched procedures are to be forgiven, it would be far too easy for employers to cover up an unfair dismissal by dispensing with formalities, making it difficult for tribunals to come to the correct conclusion. One way in which they will try to do this is to consider the size of the employer. For a small employer to fail to follow procedure is frequently a sign of ignorance rather than anything sinister and is much more easily discounted than a lapse by a large employer. Ironically, HR managers who appear as witnesses are often keen to emphasise their qualifications and experience but, if a consultation has clearly been mismanaged, they would increase their chances of success by giving evidence of their disorganisation and incompetence. Otherwise, the process looks suspicious.
A final twist is the hint from the tribunal that, had the witness been able to explain the scoring, the lack of consultation would have been of less import. This suggests that, at least as far as improper motives are concerned, evidence produced after the decision to dismiss has been made is admissible. This is not as heretical as it first seems. Indeed, the very reason why employers cannot rely on evidence of an employee’s guilt that was not available at the time is that, in doing so, they are showing that they did not have enough evidence when they took the decision so it was tainted by bad faith. The question is how far this extends to questions such as credibility for which, according to Linfood Cash & Carry v Thomson, a tribunal must not substitute its own view based on what happens before it. However, if an employer says that it had a genuine motive for dismissing an employee because he appeared evasive and inconsistent at the disciplinary hearing, this is supported if he performs equally poorly under oath.
“?>”