Smith Knight Fay -v- McCoy

10 Oct 2008

Area(s) of Law : Employment Law
Court : Employment Appeal Tribunal
Source :

Case Summary By : David Lewis


Procedural fairness/automatically unfair dismissal
S.98A(2) ERA
Polkey deduction

The employee was told at a meeting that he or his post would be made redundant at a meeting; but he was not then made redundant; further meetings followed before he was given notice of dismissal. The Employment Tribunal found (1) that the dismissal was automatically unfair because that meeting did not comply with the Step 2 requirements and there had not been a Step 1 complaint letter (2) that the dismissal was substantively unfair (3) that there was no evidence and only assertion that the employer would have been dismissed anyway.

Held on appeal:

1. (i)        The ET erred in law in failing to consider the subsequent meetings prior to the dismissal in deciding that Step 2 was not complied with; no action was taken before these meetings; the Employment Tribunal was bound to pay heed to them. The meaning of “action taken” discussed and decided.

(ii)        The ET erred in setting too high a standard for the requirements of a Step 1 letter; they failed to consider the guidance on that topic in Alexander v Bridgen.

2. The Employment Tribunal were entitled to find the dismissal substantively unfair; there was no error of law.

3. There was evidence, oral and documentary to support the employer’s case that the employee was not suitable for the only post in which he was interested. The Tribunal erred in law in concluding to the contrary.

Claim remitted on issues (1) and (3) to a fresh Employment Tribunal.

For Full Report:

EAT Link:

Bailii Link:


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