Can events that take place after dismissal be taken into account when assessing the overall fairness of the dismissal?

No, the Employment Appeal Tribunal has held.

Citizens Advice Merton and Lambeth Ltd v Mefful

Mefful, then a manager within Merton and Lambeth’s Citizen’s Advice Bureau (CAB), was made redundant in 2012.  He brought claims in the ET for unfair dismissal, whistleblowing, disability discrimination and victimisation.

Some months prior to his redundancy, in February 2021, the CAB began a restructure process.  As part of these discussions, unbeknown to Mefful, the decision was taken to dismiss him on or around 19 March 2012.  The Tribunal was referred to correspondence from the CAB’s interim CEO to one of their trustees which stated that ‘we lose PM (Mr Mefful) in April’. 

The ET and EAT considered that following this email on 19 March 2012 there was no possibility of Mefful being retained.

As a result, the EAT considered that the redundancy process which followed was a sham and that Mefful’s redundancy was a ‘done deal’ from 19 March 2012 onwards.

Mefful was then absent from work between April 2012 and July 2012.  It was accepted that Mefful became disabled (as a matter of law) in April 2012. However the ET found that the CAB did not have knowledge of this until 14 August 2012.

At the ET, it was found that whilst the real primary reason for Mefful’s dismissal was a lack of capability and engagement which the CAB did not wish to manage, the ET also found that the decision was ‘tainted’ by discrimination.

The EAT held that the ET had erred in reaching this view.  As Mefful did not become disabled until April 2012 and the decision to dismiss took place in March 2012, it was simply not possible that Mefful’s disability had contributed to the decision to dismiss him.

Mefful’s victimisation claim was, however, capable of being successful under the Equality Act 2012, as a protected act need only have been a ‘significant influence’ on the Claimant’s treatment.

The matter was remitted to the ET for reconsideration of this point and various others.