Dooley v Union of Construction Allied Trades and Technicians (UCATT)

A dismissal may be unfair because of serious procedural defects even where there were proper grounds to investigate misconduct. An employee may legitimately expect a disciplinary panel to retain its composition throughout. Proceeding without members at the decisive stage may be unfair where the reasons for their absence and the actual or perceived prejudice justify that conclusion.

A fair appeal can cure procedural defects, but an appeal confined to reviewing the original decision cannot cure the fundamental unfairness of excluding panel members from the original decision-making. Where unfairness is procedural only, the tribunal must assess the chance of a fair dismissal and make any Polkey reduction before separately considering contributory conduct.

The claimant, a regional organiser employed by the respondent trade union, was summarily dismissed for gross misconduct after allegations concerning fictitious membership forms connected with Hudson Contract Services Ltd. The Employment Tribunal found the dismissal ordinarily unfair under Employment Rights Act 1996, made a 50% reduction for contributory conduct, and made no Polkey reduction.

The Union appealed against unfair dismissal and remedy. The claimant cross-appealed on alleged dismissal for trade union activities, the treatment of a protected-disclosure claim, contributory conduct, pension loss and car benefit. The central issues were whether the Tribunal's grounds for procedural and substantive unfairness could stand, whether the internal appeal cured any defect, and the consequences for compensation.

1. The Union's appeal succeeded in part. The finding that the original dismissal was unfair was upheld, but only on procedural grounds. The Tribunal was entitled to find unfairness in the excessively prolonged first day of the disciplinary hearing and in the panel deciding the case without two of the nine members who had heard it.

2. An employee facing a disciplinary panel normally has a legitimate expectation that its composition will remain unchanged. It may nevertheless be fair to proceed with fewer members. The relevant matters are the reason for the members' absence and the real or reasonably perceived prejudice to the employee. On the facts, the Tribunal was entitled to find prejudice from proceeding without Mr Gamble and Mr Doody.

3. The other grounds could not stand. The General Secretary's role as prosecutor did not itself establish unfairness without a finding that the decision-making panel lacked impartiality. The treatment of a manager was not a valid disparity comparison because the allegations against him were materially different.

4. Although a fairly conducted appeal may cure procedural defects, following [2006] ICR 1602, this appeal was not a rehearing and could not cure the fundamental defect at the original decision-making stage.

5. Because the sustainable unfairness was procedural only, a Polkey assessment was required. The case was remitted to a different tribunal to assess the chance of a fair dismissal and then to reconsider contributory conduct. The latter reduction could not exceed 50%, since the Union had not appealed that figure. Pension loss was also remitted for fresh determination. The claimant's cross-appeal, including the claims under sections 152 and 103A, and the car-benefit appeal were dismissed.

• Employment Appeal Tribunal: upheld the finding of ordinary unfair dismissal on a narrower procedural basis; remitted Polkey, contributory-conduct and pension-loss issues to a different tribunal; dismissed the cross-appeal and the car-benefit challenge: [2013] UKEAT 0346_12_0305.

• Employment Tribunal, London South: by a judgment sent on 4 November 2011, dismissed the claims concerning unlawful detriment and held that the claimant had been ordinarily unfairly dismissed. It applied a 50% contributory-conduct reduction and made no Polkey reduction. A remedy judgment sent on 27 February 2012 dealt with compensation.