Biggin Hill Airport Ltd v Derwich

In determining fairness under section 98(4) of the Employment Rights Act 1996, an Employment Tribunal must assess the dismissal process as a whole. This includes a subsequent internal appeal and whether it cured procedural defects at the original hearing. The distinction between an appeal by rehearing and one by review is not determinative.

The Tribunal must also avoid substituting its assessment of the seriousness of misconduct for that of a reasonable employer. Where its findings do not address the effect of the appeal, and its reasoning on wrongful dismissal does not explain why wrongful conduct was not repudiatory, its conclusions cannot stand.

The claimant, a handling agent, was summarily dismissed for conduct treated by her employer as gross misconduct. She brought claims for ordinary and whistleblowing unfair dismissal, and wrongful dismissal.

The Employment Tribunal dismissed the claim under section 103A of the Employment Rights Act 1996, but upheld the ordinary unfair-dismissal and wrongful-dismissal claims. It found 60% contributory conduct and made no Polkey reduction.

The employer appealed against the findings of ordinary unfair dismissal and wrongful dismissal. The central issue was whether the Tribunal had failed to consider whether the claimant’s internal appeal, for which she had received the relevant witness material and against whose conduct she made no complaint, cured procedural defects in the original disciplinary process.

1. Appeal allowed. The findings of ordinary unfair dismissal and wrongful dismissal were set aside and both claims were remitted to a freshly constituted Employment Tribunal. The unappealed finding that the reason for dismissal was conduct, rather than protected disclosure, remained in force.

2. On the fairness issue, the Employment Judge had identified defects in the original disciplinary hearing, including inadequate specification of charges, non-disclosure of material and further undisclosed investigations. However, having referred to Taylor v OCS Group Ltd [2006] IRLR 613, the Judge failed to consider whether the internal appeal cured those defects.

3. That omission was material. By the appeal hearing, the claimant knew the charges from the dismissal letter, had been supplied with the witness material, had time to prepare, and knew of the further investigation. Whether those circumstances cured earlier deficiencies was a factual question for the Tribunal. Under section 98(4) of the Employment Rights Act 1996, fairness required consideration of both the original dismissal and the subsequent appeal.

4. The reconsideration must also address whether the decision-maker on appeal had reasonable grounds, after a reasonable investigation, for believing the claimant guilty of the charges. The Tribunal must not substitute its own view for that of a reasonable employer as to the seriousness with which the conduct could be regarded.

5. The wrongful-dismissal conclusion was inadequately reasoned. The Judge had not explained how conduct sufficiently blameworthy to justify a 60% contribution finding could nevertheless be wrongful but not repudiatory. That claim was therefore also remitted. Fairness, contribution, Polkey and remedy could all be reconsidered if unfair dismissal were again found.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the ordinary unfair-dismissal and wrongful-dismissal claims to a fresh Employment Tribunal.

• Employment Tribunal, Ashford: by reasons promulgated on 25 September 2014, dismissed the section 103A claim under the Employment Rights Act 1996, upheld ordinary unfair dismissal and wrongful dismissal, found 60% contributory conduct, and made no Polkey reduction. A remedy judgment dated 22 December 2014 awarded compensation and costs.