London United Busways Limited v Steven Harry

The Employment Appeal Tribunal allowed the employer's appeal against an Employment Tribunal judgment of unfair dismissal and remitted the claim for rehearing. The EAT concluded that the Employment Judge's decision was materially affected by two issues that were not raised in evidence or argument at the tribunal hearing: (i) the precise scope of the disciplinary charge; and (ii) the adequacy of the claimant's training. Because those matters were relied on in the written reasons but were not put to the parties for response, the decision breached basic principles of procedural fairness.

The EAT treated the matter as appellate, applying the legal framework for unfair dismissal including the tests set out under section 98 of the Employment Rights Act 1996 and relevant authorities (for example Burchell and Polkey as referred to in the written reasons), but did not decide the substantive correctness of contested factual conclusions and instead ordered a rehearing before a different judge so that the parties may address the issues fairly.

Background and procedural posture:

• The claimant was an Operations Manager dismissed after disciplinary proceedings relating to discovery of a defective tyre on a bus and the claimant's investigation and actions. The Employment Tribunal (Employment Judge Cowen) found the dismissal unfair and awarded compensation including a basic and compensatory award.
• The employer appealed to the Employment Appeal Tribunal. Permission to appeal had been granted and the appeal proceeded to a full hearing before the EAT.

Nature of the claim and relief sought:

• The original claim to the Employment Tribunal was for unfair dismissal seeking remedy (basic and compensatory awards). On appeal the employer sought to overturn the ET finding of unfair dismissal and challenged aspects of the reasoning including findings on contributory fault and procedural fairness.

Issues framed by the EAT:

1. Whether the Employment Judge's decision was vitiated by reliance on matters that had not been raised in the disciplinary proceedings, the ET1, witness statements or oral hearing.
2. Whether the parties were given a fair opportunity to address the issues that the Employment Judge relied upon (in particular the scope of the disciplinary charge and the adequacy of training).
3. Whether, in light of any procedural unfairness, the Employment Tribunal's findings and remedy should stand or the matter should be remitted for rehearing.

Reasoning and conclusion:

The EAT examined the Employment Judge's written reasons and identified that key operative paragraphs relied on two matters which had not been raised in evidence or argument: (i) that the disciplinary charge was confined to the handling of the single 16 October incident rather than a wider allegation of general inaction; and (ii) that the respondent had not provided training, policies or procedures setting the standards by which the claimant was judged. The claimant confirmed those points had not been raised before judgment. The EAT applied basic principles of procedural fairness that parties must be given an opportunity to be heard on issues likely to affect the decision. The EAT concluded that it was not appropriate to decide contested factual questions or to determine alleged perversity of findings at that stage. Because the procedural defect was material to the fairness conclusion, the EAT allowed the appeal and remitted the claim for rehearing before a different Employment Judge. The EAT also set aside the ET findings on Polkey, contributory fault and the remedy, as those fall to be reconsidered at rehearing. The tribunal suggested the parties and the ET prepare a list of issues to assist the rehearing.

Appeal allowed. The EAT held that the Employment Judge's decision was materially affected by reliance on issues (the precise scope of the disciplinary charge and alleged inadequate training) that had not been raised in evidence or argument and which the parties were not given an opportunity to address. For that reason the ET judgment was set aside and the unfair dismissal claim remitted for rehearing before a different Employment Judge so that the contested matters can be dealt with fairly.

Appeal from the Employment Tribunal (Watford) where Employment Judge Cowen found unfair dismissal (Judgment signed 24 February 2021, sent 24 March 2021). Permission to appeal granted by HHJ James Tayler. Appeal heard and allowed by the Employment Appeal Tribunal, [2023] EAT 67, which remitted the claim for rehearing.