Van driver's appeal against dismissal of his claim for unfair dismissal where the industrial tribunal had found that even if the employer's decision to dismiss was not reasonable at the time of dismissal when judged in the light of circumstances known at the time of that dismissal it could nevertheless be found to be fair if the tribunal found on the facts before it that the employer would reasonably have decided to dismiss if he had followed a fair procedure.
HELD: Although the employer had acted contrary to the statutory code of practice such action did not necessarily render a dismissal unfair. It depended on the circumstances. British Labour Pump Co v Byrne (1979) ICR 347 and all cases following it, particularly W & J Wass Ltd v Binns (1982) ICR 486 should be overruled because they were inconsistent with the Employment Protection (Consolidation) Act 1978. Under the 1978 Act it was necessary to take into account some aspects of the manner of dismissal as well as the reason for dismissal when considering whether dismissal was unfair. The Court of Appeal had wrongly relied on matters which occurred after the decision to dismiss had been taken and confused unreasonable conduct by the employer, an element of unfair dismissal, with injustice to the employee which was not an element of unfair dismissal although it would be relevant in assessing the compensatory award.
Appeal allowed and case remitted to a new tribunal for rehearing.
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