[Thanks to Neil Addison of Palmyra Chambers for preparing this case summary]
Is an employer considering an appeal against dismissal entitled to find that the dismissal was fair on entirely different grounds from the original decision to dismiss? Yes and no, according to the EAT in the case of Perry v Imperial College Healthcare NHS Trust.
The employee in this case worked for two different NHS Trusts, in different jobs, working different hours. In the Imperial College job she was required to travel whilst the other job was clinic based. Due to medical problems with her mobility she was signed off sick by Imperial but continued with her other job.
When Imperial found out that she was doing the other job she was dismissed for gross misconduct on the basis that she had defrauded Imperial by receiving sick pay. When she appealed it was realised that that decision was unsupportable but nevertheless the appeal panel confirmed her dismissal on completely different grounds, namely that she should have informed Imperial that she was capable of doing other work to which they could have redeployed her.
Despite the indication in the summary at the head of the decision, the EAT did not decide that the appeal panel was not entitled to find other reasons for dismissal but held that the finding made by the panel did not justify summary dismissal. They also found that the tribunal itself did not properly address itself to the fundamental test laid down in British Home Stores Ltd v Burchell, was the decision to dismiss within the range of responses available to an employer acting reasonably. Since, on the facts, the decision was not within the range of reasonable responses the dismissal was held to be unfair.
This case is very factually based and so does not lay down any new principles. It does however emphasise that appeal panels and tribunals must concentrate on whether the facts as found justify dismissal as being a reasonable response. Where the original decision to dismiss was based on facts which cannot be supported at appeal or tribunal level it is likely that the decision to dismiss was unreasonable.