Nejjary v Aramark Ltd is a reminder that a tribunal is only entitled to take into account the reasons given by an employer when deciding whether a dismissal is within the reasonable range of responses to misconduct, and should not take into account other matters disregarded by the employer. In this case a hospitality manager who worked on events hosted by Goldman Sachs was sacked for three acts of gross misconduct following client complaints about problems at events he had managed. He already had two warnings on file for similar offences, but these were not referred to in the disciplinary procedure at all. He appealed, and his dismissal was upheld but on the basis of just one of the three offences.
He complained to an employment tribunal who found that there was a fair reason for dismissal (conduct) and that a fair procedure had been followed. They then considered whether the decision to dismiss was reasonable in the particular case. They held that on its own, the single allegation upheld at appeal would not have justified dismissal, but took into account two live warnings still extant for similar matters in concluding that the dismissal was fair. The Employment Appeal Tribunal held that the tribunal had been wrong to take any account of matters not considered by the employer in its consideration of whether the dismissal was a reasonable response, and moreover had been wrong to hold that as an alternative the claimant had contributed to his own dismissal by his conduct
Mr Recorder Luba QC summarised the position as follows:
The plain fact, as found by the Employment Tribunal and as confirmed by Ms Mellon [for Aramark] in her submissions before us, was that the reason and the only reason for the dismissal was the single matter that remained extant at the time of the appeal; that is to say, …an instance of failure to check a booking form. That was the reason for the dismissal and the reason for the dismissal was not anything else.
Having set out further grounds for concluding that the employer treated this as a single incident dismissal, he continued…
Yet despite all that, in determining whether the Respondent’s decision to dismiss for the single reason…was fair or not the Employment Tribunal built back into the equation matters which the Respondent had not had in mind as part of the reason for dismissal. Mr von Berg [for Mr Nejjary] reminded us in the course of submissions, as we have already indicated, of authority for the proposition that the reason for dismissal as referred to in section 98(4) is the reason which was extant and operative in the mind of the employer; that is to say, the reason for the purposes of the earlier sub-paragraphs of section 98. He relied in particular on the decision of the Court of Appeal in Orr v Milton Keynes Council  ICR 704 and that passage of the Judgment in which the court says:
"The reason for the dismissal of an employee is a set of facts known to the employer, or it may be a set of beliefs held by him, which causes him to dismiss an employee."
Applying section 98(4) properly in those circumstances, the Employment Tribunal had been driven to confine themselves to the employer’s reason and were not entitled to import or substitute their own reason for dismissal and then to apply the section 98(4) test to that substituted reason. In our judgment, that is precisely what they did. For those reasons, ground 1 of the grounds of appeal succeeds, and the appeal will be allowed on that ground.
The report of the case gives no hint of why it was that the employer had chosen to distance itself from the warnings it had given to its employee when making the decision whether or not to dismiss. Once it had done so, those warnings became wholly irrelevant to the question of fairness.