Craig Waites v Bilfinger Salamis UK Ltd

The Employment Appeal Tribunal dismissed the appellant's challenge to an Employment Tribunal's finding that his dismissal for gross misconduct was fair. The appellant argued (i) that the tribunal impermissibly substituted its own view for that of the employer when assessing misconduct and sanction, and (ii) that the appeal decision maker relied on additional technical material without giving the claimant an opportunity to respond. The EAT concluded there was no substitution of the employer's view by the tribunal and that the appeal decision maker already had the claimant's submissions so any further material did not produce a prejudicial consequence. The tribunal's factual findings (paras 11–97) were not challenged and the Employment Rights Act 1996 s.98(4) was referenced in framing the procedural fairness issue.

Background and parties. The claimant, employed since 2005 as a level 3 rope access technician, was dismissed in September 2019 after a safety incident on an offshore platform in which a level 1 technician under his supervision was observed working without an anchor. The respondent is a contractor in the offshore energy sector. After an investigation and disciplinary hearing the claimant was dismissed for breach of the respondent's Golden Rules (including "Always attached while working at height") and working at height procedures. An appeal was lodged and refused; the claimant's unfair dismissal claim was dismissed by an Employment Tribunal in a judgment of 27 August 2021 (Employment Judge M.A. Macleod). The claimant then appealed to the Employment Appeal Tribunal.

Nature of the appeal and issues. The appeal raised two central issues: (i) whether the tribunal had unlawfully substituted its own reasoning for that of the employer when determining that gross misconduct occurred and the severity of the sanction (the "substitution mindset" complaint), and (ii) whether the appeal decision maker relied on new technical views from the respondent's technical authority without giving the claimant an opportunity to respond, thereby denying fair participation at the appeal stage. The appellant relied on the principle of procedural fairness and specifically invoked the relevance of s.98(4) of the Employment Rights Act 1996 in assessing fairness at appeal.

Court's reasoning and conclusion. The EAT reviewed the Employment Tribunal's reasoning, particularly paragraphs 191–202, and found those paragraphs describe and uphold the employer's conclusions rather than substitute the tribunal's own view for that of the employer. The tribunal repeatedly identified that the respondent was entitled to form the conclusions it reached on the evidence. Regarding the second complaint, the EAT accepted that the appeal decision maker sought further views from the respondent's technical authority but held that the appeal decision maker already had the claimant's responses to the allegations and that the technical authority's input did not add materially different matters on which the claimant had not already commented. Even if there had been a procedural lapse, it produced no consequential unfairness. The EAT therefore refused the appeal.

Procedural history. A rule 3(10) hearing on 29 March 2023 permitted two amended grounds to proceed. The EAT heard the appeal on 2 May 2024 and handed down judgment on 10 May 2024.

Appeal dismissed. The Employment Appeal Tribunal found no impermissible substitution by the tribunal of its own views for those of the employer when assessing misconduct and sanction, and held that any further technical material obtained during the respondent's internal appeal did not introduce new matters on which the claimant had no opportunity to comment or, if there was any procedural lapse, it caused no prejudice. The tribunal's factual findings were not disturbed.

The claimant's unfair dismissal claim was heard by the Employment Tribunal (Employment Judge M.A. Macleod); judgment dated 27 August 2021 (sent to parties 1 September 2021) dismissed the claim. A rule 3(10) hearing on 29 March 2023 allowed two amended grounds to proceed. The Employment Appeal Tribunal heard the appeal on 2 May 2024 and delivered judgment on 10 May 2024 ([2024] EAT 74).