Hesham Elhalabi v Avis Budget UK Ltd

In a conduct dismissal case, an Employment Tribunal is not generally required to identify and decide every possible procedural defect that the parties have not raised. The limited duty to take an issue as a matter of course applies only to well-established and obvious matters. Procedural questions in conduct cases are often fact-sensitive and varied.

Under section 98(4) of the Employment Rights Act 1996, fairness requires assessment of the disciplinary process as a whole. That includes the dismissal and appeal stages. An employee’s knowledge of an allegation at appeal may therefore be relevant to whether an earlier failure to put it before dismissal makes the overall process unfair.

For race discrimination, unreasonable or different treatment alone does not justify an inference of discrimination. Background evidence need only be addressed where it is material to that issue.

The claimant appealed from an Employment Tribunal decision dismissing his claims of unfair dismissal and race discrimination.

He had been dismissed following allegations concerning an unattended outlet and his obtaining of CCTV footage. The respondent also found that his account of how the footage was obtained was dishonest. The invitation to the disciplinary hearing did not expressly state that dishonesty allegation. The claimant maintained his account at the internal appeal, which upheld his dismissal.

His race-discrimination claim relied in part on earlier allegations which had been held out of time. The central issues were whether the Tribunal had failed to consider that background evidence and whether it ought, despite the point not having been raised below, to have addressed the alleged procedural unfairness arising from the unnotified dishonesty allegation.

1. Appeal dismissed. The Tribunal gave sufficient reasons for rejecting the race-discrimination claim. Its conclusion that the earlier, out-of-time complaints were not materially probative of the live allegations was open to it. They concerned different events, times and individuals. The Tribunal had also correctly identified that unfair or different treatment alone could not support an inference of race discrimination.

2. The complaint that the claimant had not been told before dismissal that the respondent would find him dishonest was a new procedural point. Although a person accused in disciplinary proceedings should ordinarily know the case to meet, the Tribunal was not obliged to raise every potential procedural defect of its own motion. Conduct-dismissal procedures may raise many variable issues, including investigation, disclosure, opportunity to respond and the identity of the decision-maker.

3. The limited exception for points which an Employment Tribunal should consider as a matter of course applies only to sufficiently settled and obvious issues. It did not require this Tribunal, even though the claimant was unrepresented, to formulate this particular procedural complaint. It would have been unjust to allow the new point on appeal because the Tribunal had not considered it as part of the overall process.

4. In any event, the point would not have succeeded. Fairness under section 98(4) of the Employment Rights Act 1996 required consideration of the whole disciplinary process, including the appeal. By the appeal the claimant knew that dishonesty concerning the CCTV footage formed part of the dismissal decision and maintained his explanation. The Tribunal had itself found that explanation dishonest and had considered procedural matters. Viewed as a whole, the process did not make the dismissal unfair.

• Employment Appeal Tribunal: appeal dismissed: [2025] EAT 11.
• Employment Tribunal: Employment Judge Anstis and members dismissed the claimant’s claims of race discrimination, unfair dismissal and wrongful dismissal. No citation is stated.