The fact that the Tribunal did not consider whether the internal appeal had cured a previous wrong in the process was not a ground for appeal. The Tribunal did not have to consider it as the actual basis for the decision was not considered in the internal appeal.

The claimant was a senior underwriter and his employment was transferred to the respondent.  The claimant stated that he believed the respondent had deliberately ignored or had been complicit in fraud vis-à-vis a fraudulent insurance claim. As a result, the claimant believed that he had been set unreasonable objectives and unjustifiable concerns about his performance had been raised. He believed this was in response to a protected disclosure.

Via his solicitors the claimant raised a grievance. This was dismissed initially and then by the CEO who heard the appeal.  As part of the process it was found that the allegations of fraud had been investigated and there was no evidence to support it. A disciplinary process followed in relation to the claimant in which he was dismissed with the respondent citing a complete breakdown of trust and confidence between him, the company and senior management. The claimant brought a claim for unfair dismissal.

At first instance, the Tribunal found the respondent failed to properly investigate the issue of the performance objectives and found the claimant had been unfairly dismissed.  On appeal to the EAT, an appeal from the respondent was upheld as they held the Tribunal had only considered fairness in relation to the initial decision and did not consider whether any procedural failings were cured through the appeal.  The claimant appealed to the Court of Appeal.

The Court of Appeal stated that unless there was an express misdirection of the law the EAT had to assume that the Tribunal had understood and applied the relevant law.   The reasons for the decision had to be read as a whole and the Tribunal did not have to spell out what would be obvious to a person who had read the reasons against the background of the pleaded issues.   In terms of the internal appeal the Court of Appeal stated that even if the claimant was not dismissed for making a protected disclosure he might have still been unfairly dismissed.  To this end, the respondent and to some extent the EAT had been keen to confront the issue of the protected disclosure rather than the wider picture.   The internal appeal had not touched on the point relating to the performance and the reasonableness of the performance objectives.  As it did not touch on those issues it would be surprising for the Tribunal to have referred to it in its conclusions.

This case demonstrates that an internal appeal can cure the wrongs with an initial dismissal decision but it has to consider and cure the actual issue.  In this the appeal process was undertaken because the Tribunal had not outlined the internal appeal and how it may have cured the initial decision.  However, the internal appeal did not deal with the matter of the performance objectives which was the reason for the unfair dismissal as decided by the Tribunal.  Accordingly, it would be surprising for the Tribunal to even consider it in the judgment.  Employers should be cognisant that the internal appeal can cure an issue that has gone wrong initially but the appeal would have to actually and properly consider it and demonstrate how it has cured the issue.

You can read the case in full here.