Chowdhury v Marsh Farm Futures

A tribunal must assess the fairness of a hearing as a whole objectively. Its individual case-management decisions remain subject to appellate intervention only for legal error or perversity. A fit note stating that a party is unfit for work does not, without more, establish inability to participate in a hearing.

Where an employer’s dismissal procedure is found to have serious defects, the tribunal cannot treat those defects as cured by the strength of the substantive case against the employee. The likely outcome of a fair procedure is instead relevant to remedy, including any Polkey reduction, and not to whether the dismissal was procedurally fair.

The claimant appealed against the Watford Employment Tribunal’s dismissal of his claims, including unfair dismissal.

He alleged that the hearing had been unfair because of his health, lack of preparation and disclosure difficulties; that an unlawful deduction claim concerning time off in lieu had not been determined; and that the Tribunal had wrongly treated procedural shortcomings in the dismissal process as redeemed by the merits.

The central issues were whether the conduct of the hearing was unfair and whether serious procedural defects in the disciplinary and appeal process could be outweighed when deciding whether the dismissal was fair.

1. Appeal allowed on the fourth ground only. The Employment Appeal Tribunal substituted a finding that the claimant had been unfairly dismissed and remitted remedy to the same Tribunal.

2. The Tribunal had not erred by continuing the hearing. The claimant had not sought an adjournment and was anxious to proceed despite the prospect of illness-related difficulty. The Tribunal repeatedly reviewed his position, allowed breaks and additional time, and had no material suggesting that he lacked capacity to make an informed decision. A medical certificate of unfitness for work did not itself show unfitness to take part in proceedings.

3. The EAT rejected the allegation that late or missing documents made the hearing unfair. The claimant had retained the principal bundles and the material not provided before the hearing was his own disclosure. The Tribunal was entitled to control cross-examination and time where the claimant had been given guidance and reasonable assistance but had not prepared or focused his case.

4. The Tribunal made no error concerning time off in lieu. The issue was not included in the definitive list of issues and, more importantly, there was no evidence or submission upon which it required determination.

5. However, the Tribunal’s findings disclosed serious, structural concerns in the disciplinary process, including Mr Davis’s overlapping involvement and the constrained appeal remit. Having made those findings, it erred by allowing the admitted misconduct and substantial merits to make the dismissal fair. The merits could bear on contribution and on a Polkey reduction, but could not cure procedural unfairness.

6. Remitted to the same Tribunal to determine remedy, contribution and Polkey issues.

• Employment Appeal Tribunal: allowed the appeal on the procedural-unfairness ground, substituted a finding of unfair dismissal, and remitted remedy.
• Employment Tribunal, Watford: rejected the claimant’s claims, including his unfair-dismissal claim.