If an employer sets out the wrong reason for dismissal on a Tribunal Response Form (known as an ET3), can the tribunal overlook this and make up its own mind about what the reason for dismissal may be? In Screene v Seatwave, the reason for the summary dismissal of a financial controller who had failed to spot a fraud of £1.7 million was clearly misconduct but on the ET3 the company stated the reason to be “incapability”.
Mr Screene argued that the tribunal should not have departed from the reason actually put forward by the company, but the EAT disagreed. As long as the claimant has every opportunity to address the “change of tack” and is not prejudiced by it in any way, a tribunal can make up its own mind as to the real reason.
