Veitch Penny LLP - Exeter | Crediton, Devon

Case

The Royal Veterinary College –v- Yerbury
Employment Appeal Tribunal - (29 June 2005)

Issues

1. Disciplinary procedure;
2. Unfair dismissal;
3. Category of reason for dismissal

Facts

Miss Yerbury had been employed as an administrative assistant for the college. Whilst still under a final written warning, she accepted a new role on the basis that all her work to that point was up to date and satisfactory. It soon became apparent that this was not the case. A further disciplinary meeting was finally convened after periods of holiday and sick leave on the part of Miss Yerbury. She was subsequently dismissed in March 2004.

She brought a claim of unfair dismissal against her employer.

When presented with such a claim, the tribunal must first determine whether the principal reason for the dismissal was for conduct, capability, redundancy, breach of an enactment or for “some other substantial reason”. In this case, the tribunal concluded that Miss Yerbury’s dismissal was on grounds of capability. On that basis, it concluded that she was unfairly dismissed because the college:

a)had not carried out sufficient investigation into her difficulties, and
b)had failed to give appropriate warning of dismissal (as the warnings Miss Yerbury had received had been in relation to her conduct).

The college appealed the decision, arguing that the tribunal had been wrong to find that the dismissal had solely been for capability as Miss Yerbury’s conduct was clearly an issue. It was wrong for the tribunal to have disregarding the formal warnings Miss Yerbury had received.

Decision

The Employment Appeal Tribunal (EAT) upheld the college’s appeal. The EAT acknowledged that conduct and capability are often closely interlinked. In this case, the proper categorisation of the reason for Miss Yerbury’s dismissal had been a combination of capability and conduct.

Comments

This case highlights how easy it can be to attach a label to a situation and act incorrectly. A tribunal will look at the substance which underlies a situation, rather than simply the label attached to it. An employer cannot change the factual basis upon which a dismissal is based after the event, but is permitted to correct the name given to it.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it