Employer's justice - the worker had his hours cut and suffered racial discrimination yet the Court of Appeal finds his dismissal 'equitable' and 'fair'

Although the approach as to whether a dismissal had been fair was non-technical ( Phillips J in Grundy v Wills [1976] ICR 323 & Earl v Slater and Wheeler (Airlyne) Ltd [1972] ICR 508 )the Wednesbury rationality test was adopted after the EAT decision in British Home Stores v Burchell [1980] ICR 303. At the hearing of Burchell the employee was unrepresented and failed to appear whereas the employer was represented by a distinguished barrister. Burchell however became authoritative after its approval by the Court of Appeal in Weddel and Co v Tepper [1980] ICR 286, and Foley v Post Office [2000] ICR 1283.

Sedley LJ's view that the line manager could be held to be of a sufficient level of authority in the institution for the institution itself to be considered as having knowledge of what really transpired, and to make the decision-maker's decision void. Sedley argued that the decision maker appointed by the employer should be expected to know all the relevant facts already available to the employer. According to Sedley LJ it should be possible that, "a bona fide decision can be undone through no fault of the decision-maker, but that is a price which both equity and the substantial merits of the case make it fair for an organisation to pay." The Court of Appeal majority decision rejected this approach.

Lord Sedley cites the paradox of dismissal being a matter for the employer (so long as procedures were carried out properly) whilst discrimination may be pursued at tribunal.

For Lord Sedley what is important is, "the totality of information which the employer holds when deciding whether or not to dismiss an employee. No corporation, and certainly not a public law body such as the respondent, can ordinarily plead that its left hand did not know what its right hand was doing", and s.98(4)(b) should be treated as "a requirement for a final look". Caselaw however prevents this.

This is surely a sad state of affairs where the second highest court in the land feels itself bound to make what it sees as a patently unjust decision, where a worker was dismissed on the basis of lies and discrimination. It is maybe time for the Supreme Court to be given an oversight role in cases that are not the subject of appeal to it, but nevertheless bring up important matters of caselaw. The Devis v Atkins based application of s.98(4)(b)is overdue for this treatment. Maybe the Court of Appeal would be able to put questions to it for rulings on specific points of law, in the same way as happens with regard to the ECJ on points of european law.

Campion v Hamworthy Engineering Ltd [1987] I.C.R. 966;     Enable Care and Home Support Ltd [2010] UKEAT/0366/09/SM;     Foley v Post Office [2000] I.C.R. 1284;     Gilham v Kent County Council (No. 2) [1985] I.C.R. 233;     Hadden v Van Den Bergh Foods Ltd [1999] ICR 1150      Hampshire Land [1896];     Iceland Frozen Foods Ltd. v. Jones [1983] I.C.R. 17;      Lindford Cash & Carry Ltd v Thompson [1989] ICR 518      London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220, [2009] IRLR 563('range of reasonable responses' where an employment tribunal may not substitute itself for the employer);     Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 A.C. 500;      Monie v Coral Racing Ltd [1981] I.C.R. 109;      Morgan v Electrolux Ltd [1991] I.C.R. 369;     Neale v Hereford and Worcester County Council [1986] I.C.R. 471;     Weddel v Tepper [1980] I.C.R. 286;     West Midlands Co-operative Society Ltd v Tipton [1986] 1 A.C. 536;