Union of Construction, Allied Trades and Technicians v Dooley

A dismissal may be unfair because of serious procedural defects even where the employer had reasonable grounds to investigate and believed the employee guilty of misconduct. A disciplinary panel should ordinarily retain the same composition throughout, although it may proceed with fewer members where the circumstances justify that course and the employee suffers no material or reasonably perceived prejudice. Excessive hearing length may constitute procedural unfairness where it materially affects the alertness and participation of those involved. A fair internal appeal may cure procedural defects, but an appeal confined to reviewing the original decision will not necessarily cure exclusion of panel members or a materially compromised hearing. Where unfairness is procedural, a Polkey assessment is required before calculating any reduction for contributory conduct.

Mr Dooley, an official employed by UCATT, was summarily dismissed for gross misconduct concerning fictitious membership forms and his dealings with Hudson Contract Services Ltd. An Employment Tribunal found the dismissal unfair under section 98(4) of the Employment Rights Act 1996, relying on procedural defects, the involvement of the Union’s General Secretary, unequal treatment compared with another employee, and the absence of two disciplinary panel members. It made no Polkey reduction but reduced compensation by 50% for contributory conduct.

UCATT appealed. Mr Dooley cross-appealed on trade union activities, protected disclosures and contributory conduct, and separately challenged pension loss and car allowance. The central issues were which reasons for unfairness were sustainable, whether the internal appeal cured them, and what consequences followed for remedy.

1. Liability. The appeal against the finding of unfair dismissal was dismissed, but the finding was upheld only on procedural grounds. The Tribunal was entitled to regard the first day’s prolonged hearing, with members becoming inattentive, as materially unfair. It was also entitled to find unfairness in the decision being taken in the absence of two of the nine members who had participated in the hearing.
2. The Tribunal was not entitled to rely on the involvement of the General Secretary merely because of his history of animosity with the claimant. Nor did the failure to discipline the claimant’s line manager make the dismissal unfair: the charges against the two employees were materially different. The Tribunal’s observations about dishonesty were treated as directed to contributory conduct, not liability.
3. The internal appeal did not cure the procedural defects. Although a fairly conducted appeal may cure defects in an initial hearing, this appeal was expressly not a rehearing. It could not remedy the exclusion of panel members at the essential decision-making stage or the effects of the prolonged hearing.
4. Because the surviving unfairness was procedural, the Tribunal should assess the chance that the claimant would have been fairly dismissed had the panel remained alert and complete. That assessment was factual and was remitted to a different Tribunal. The Tribunal should then reconsider contributory conduct, applying its own assessment of the claimant’s conduct. The reduction could not exceed 50%, since UCATT had not appealed that figure.
5. The cross-appeal was dismissed. The Tribunal was entitled to find that the principal reason for dismissal was the alleged misconduct, not trade union activities or protected disclosures. The pension-loss calculation was remitted for a fresh hearing. The appeal concerning the car allowance was dismissed.

• Employment Appeal Tribunal: upheld the finding that the dismissal was unfair, on narrower procedural grounds; remitted the Polkey and contributory-conduct issues and the pension-loss calculation to a different Tribunal; dismissed the cross-appeal and the car-allowance challenge.
• Employment Tribunal: found the dismissal unfair under section 98(4) of the Employment Rights Act 1996, made no Polkey reduction, and assessed contributory conduct at 50%.