Advance Security UK Ltd v Sheeba

An employer must give an employee sufficient information at the second statutory disciplinary step to understand and answer the case. Where the allegations depend on a small number of crucial written statements, failing to provide them before the meeting may breach Step 2, even if the employee can give an account and sees the documents at the meeting.

Employment Rights Act 1996, section 123(6), requires contributory fault to be considered separately from the Polkey assessment. A finding that dismissal would have occurred after a compliant procedure does not remove the need to decide whether, and to what extent, the employee’s conduct caused or contributed to the dismissal.

The employer appealed against findings that the claimant had been unfairly dismissed under sections 98 and 98A of the Employment Rights Act 1996. The Employment Tribunal found that two written accounts relied on in disciplinary proceedings had not been provided before the Step 2 meeting, although they were shown at the meeting. It nevertheless considered that the claimant would have been dismissed after a short delay for a proper procedure and awarded compensation based on three weeks’ pay, without making a further deduction for contribution.

The appeal concerned whether Step 2 had been breached and whether the Tribunal had adequately addressed the employer’s submission that the claimant was wholly responsible for her dismissal.

1. Appeal allowed in part. The Tribunal was entitled to find a breach of Step 2 of Part 1 of Schedule 2 to the Employment Act 2002. The two statements were crucial materials. Once the employer relied on them, the claimant should have had an opportunity to prepare her response with knowledge of their contents. The case was distinguishable from Ingram v Bristol Street Parts, where the employer was not required to provide the whole sequence of invoices. Here, the two statements were the only relevant materials.
2. The Tribunal’s finding was also sufficient for section 98(4), and that aspect of the unfair-dismissal decision was not challenged.
3. For compensation, paragraph 83 contained findings capable of amounting to blameworthy conduct for the purposes of section 123(6), but the Tribunal had not expressly decided whether the claimant’s conduct caused or contributed to the dismissal. Its brief statement that no further deduction was appropriate did not answer the employer’s submission.
4. The Polkey assessment and contribution are separate processes. A finding that dismissal would have occurred after a compliant procedure does not itself justify refusing a contribution deduction. Section 123(6) imposes a mandatory consideration within the broad discretion under section 123(1).
5. The contribution issue was remitted to the same Employment Tribunal. It was directed to decide whether there was contribution and, if so, to make the deduction it considered just and equitable.

• Employment Tribunal: upheld claims of ordinary and automatic unfair dismissal under sections 98 and 98A of the Employment Rights Act 1996, and awarded compensation of £1,680.17.
• Employment Appeal Tribunal: upheld the finding of a Step 2 breach and allowed the appeal on the adequacy of the reasons concerning contribution; that issue was remitted to the same Tribunal.