The Court of Appeal has considered the extent to which an employment tribunal may take into account the mental processes of anyone besides the decision-maker when establishing the reason for dismissal in an unfair dismissal claim.
The case is important as it reverses the EAT’s decision and holds that, in an unfair dismissal claim, it is the person who is designated by the employer to take a decision to dismiss whose state of mind needs to be considered when assessing what was the reason for the dismissal.
The judgement in the case can be summarised as follows:
• the reason for dismissal is the set of facts known to the employer, or of beliefs held by him, which cause him to dismiss the employee;
• for the purpose of determining ‘the reason for the dismissal’, the tribunal is obliged generally to consider only the mental processes of the person(s) who was (or were) authorised to, and did, take the decision to dismiss; and
• it is unlawful to consider the mental processes of anyone besides the decision-taker, but it may be possible to bring a claim where the decision-taker has been manipulated and the manipulator is “a manager with some responsibility for the investigation’.
From a practical point of view, this emphasises the significance of the decision makers’ evidence in any claim for unfair dismissal, and employers will therefore want to make sure that they select the most suitable and credible person to make the decision and keep good records of how the decision was reached in case of a claim.