Argence-Lafon v Ark Syndicate Management Ltd

Factual and Procedural Background

The Appellant was employed by the Respondent after a TUPE transfer from his former employer. He brought claims in the ET for whistleblowing detriment, unfair dismissal, and automatically unfair dismissal. The ET dismissed the whistleblowing claims but upheld ordinary unfair dismissal. The Appellant appealed to the EAT against dismissal of the whistleblowing claim, and the Respondent cross-appealed on unfair dismissal; the EAT dismissed the Appellant’s appeal, allowed the cross-appeal, and remitted the unfair dismissal claim to the ET. The present appeal was limited, with permission, to the EAT’s cross-appeal decision and remittal order. [Para 24][Para 25]

The appeal was heard without the Respondent’s appearance or representation. [Para 26]

Legal Issues Presented

1. Whether the EAT erred in law by concluding that the ET had failed to factor the internal appeal into its unfair dismissal analysis. [Para 95][Para 96]
2. Whether the internal appeal could, as a matter of law, cure the earlier defects identified by the ET, including lack of advance notice of the trust-and-confidence allegation and lack of investigation into the disputed performance objectives. [Para 96][Para 106][Para 114]

Arguments of the Parties

Appellant's Arguments

• The ET had in fact considered the internal appeal, and the EAT wrongly said otherwise by misreading paragraphs 92-94 of the ET’s judgment. [Para 102][Para 104][Para 105]
• The internal appeal could not cure the fundamental defects in the dismissal process, including the absence of investigation into the disputed objectives and the lack of notice of the trust-and-confidence allegation. [Para 100][Para 101][Para 106]
• The EAT had impermissibly re-evaluated the merits and should have sought amplification from the ET before concluding that the ET had erred in law. [Para 106][Para 107]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began from the premise that this was an appeal on a point of law from an expert tribunal, so the ET’s reasoning should be approached on the footing that it understood and applied the law unless there was clear misdirection. [Para 109]

The Court held that the ET’s reasons had to be read as a whole, and that the ET was not obliged to spell out matters that were obvious from the pleaded issues and the hearing context. [Para 113]

On that basis, the Court concluded that the internal appeal was only potentially relevant to one part of the dismissal: the late-emerging allegation of a fundamental breakdown of trust and confidence. That issue had been sprung on the Appellant at the disciplinary hearing, so the appeal might have addressed the lack of advance notice. [Para 114]

However, the dismissal also rested on performance. The ET found that the protected disclosures played no part in setting the objectives, but that frustration with the Appellant’s conduct after the disclosures did play a part, and it also found that the Respondent had failed to carry out a reasonable investigation before dismissal. The internal appeal did not, and could not, cure that separate strand of the case. [Para 115][Para 116]

The Court therefore rejected the EAT’s view that the ET had ignored the appeal or that the appeal could have cured the defects identified by the ET. [Para 95][Para 96][Para 117]

Holding and Implications

Appeal allowed. The Court held that the ET had not erred in law in its unfair dismissal analysis, so the EAT was wrong to allow the Respondent’s cross-appeal and remit the claim. The direct effect was to restore the ET’s unfair dismissal decision in the Appellant’s favour; no broader new precedent was created beyond the application of established unfair dismissal principles. [Para 118][Para 119][Para 121]