Buzolli v Food Partners Ltd

Procedural defects in a disciplinary process do not of themselves make a dismissal unfair. The question under section 98(4) of the Employment Rights Act 1996 is whether, viewed overall, the employer's procedure and sanction were within the range of reasonable responses.

An Employment Tribunal may take account of what occurred on an internal appeal when assessing fairness. A failure to comply precisely with the ACAS Code does not necessarily require appellate intervention where the Tribunal identified the defects, took the Code into account, and was entitled to find the dismissal fair overall.

The claimant, a multi-drop driver, had received a final written warning after an alcohol-related absence. He was later dismissed following a preventable collision causing substantial damage to a company vehicle.

The Reading Employment Tribunal dismissed his unfair-dismissal complaint by a judgment with reasons dated 2 August 2011. The claimant appealed, contending that the employer's disciplinary procedure breached the ACAS Code because the warning and hearing correspondence did not adequately identify dismissal as a possible consequence, and because reliance on the warning emerged on appeal.

The central issue was whether the Tribunal's conclusion that the dismissal was fair despite procedural flaws disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the dismissal was fair. Its inaccurate description of the procedure as compliant with the ACAS Code did not vitiate its decision when the reasons were read as a whole.
2. The Tribunal had identified the material flaws: the final-warning letter did not expressly state that further misconduct could lead to dismissal; the hearing invitation did not warn of dismissal; and the dismissal letter incorrectly described summary dismissal for gross misconduct. It nevertheless found that the claimant understood the warning to be final, knew dismissal was a possibility, and suffered no procedural objection at either internal hearing.
3. The applicable question was whether the employer's procedure and sanction were within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996. On the facts found, the Tribunal could conclude that the procedural shortcomings did not render the dismissal unfair.
4. The Tribunal could properly consider the internal appeal. The claimant's appeal letter showed that he knew the live final warning had contributed to dismissal, and the appeal outcome acknowledged that contribution.
5. Section 207 of the Trade Union and Labour Relations Consolidation Act 1992 required the Tribunal to take the relevant ACAS Code into account. It had done so. The Appeal Tribunal emphasised that Tribunal reasons must be read in the round, without pernickety criticism or appellate substitution of judgment.

• Employment Appeal Tribunal: Dismissed the claimant's appeal and upheld the Employment Tribunal's dismissal of the unfair-dismissal complaint.
• Reading Employment Tribunal: Dismissed the claimant's unfair-dismissal complaint by a judgment with reasons dated 2 August 2011.