London United Busways Limited v Steven Harry

An employment tribunal must give each party a fair opportunity to address any issue likely to affect its decision. A finding that a dismissal was unfair cannot safely rest on matters which were not raised in the disciplinary process, pleadings, evidence, submissions, or by the tribunal during the hearing, where the employer might have adduced evidence or argument in response.

Where such unventilated matters materially affect the fairness assessment, the decision must be set aside. A rehearing before a different tribunal may be appropriate, particularly where all issues must be determined afresh.

The claimant, an operations manager for a bus operator, was summarily dismissed following concerns about defective bus tyres, first-use checks, and his response to those concerns. The Employment Tribunal at Watford held that the dismissal was unfair and awarded compensation, subject to a 50% Polkey reduction.

The employer appealed. It contended that the tribunal had relied materially on two issues which neither party had raised at the hearing: that the disciplinary charge was confined to a single tyre incident, and that the claimant had not received adequate training for the standards imposed on him. The central issue was whether the tribunal could determine fairness on those bases without giving the employer an opportunity to address them.

1. Appeal allowed. The Employment Tribunal’s finding of unfair dismissal, its findings on Polkey and contributory conduct, and its remedy decision were set aside. The claim was remitted for a complete rehearing before a different Employment Judge.

2. It is a basic requirement of procedural fairness that parties have an opportunity to be heard on an issue likely to be relevant to the decision. The tribunal’s fairness assessment was materially affected by its view that the employer had dismissed the claimant on matters outside the disciplinary allegations, and by its view that the employer had imposed standards which had not been communicated through training, policies or procedures.

3. Neither issue had been raised in the disciplinary proceedings, the claim, witness statements, evidence, submissions, or by the tribunal for response during the hearing. The claimant accepted that both arose for the first time in the written reasons. The employer could potentially have advanced evidence and argument on both matters, including on the breadth of the disciplinary allegation, the claimant’s knowledge of it, and his qualifications and experience.

4. The points were not self-evidently incontrovertible. The disciplinary allegation was capable of a wider construction, and the claimant might have known the case he had to meet from the investigation report and the disciplinary and appeal material. The scope of a disciplinary allegation may be a matter of substance rather than form, as illustrated by [2014] EWCA Civ 1626.

5. It was unnecessary to decide the employer’s further perversity challenges because the claim would be heard afresh. The tribunal’s conclusions on compensation necessarily fell with the liability decision. Applying the remittal guidance in [2004] IRLR 763, rehearing before another judge was appropriate given the nature of the error.

• Employment Appeal Tribunal: Allowed the employer’s appeal and set aside the Employment Tribunal’s liability, Polkey, contributory-fault, and remedy decisions.
• Employment Tribunal, Watford: Found the claimant unfairly dismissed and awarded a basic award of £9,906 and a compensatory award of £20,368, after a 50% Polkey reduction.