K Taak v DPD Group UK Limited

In assessing fairness under section 98(4) of the Employment Rights Act 1996, long and previously unblemished service may be a relevant mitigating factor. Its significance is fact-sensitive. Serious misconduct may properly outweigh it, but a tribunal must address a material contention that the employer failed to consider it.

Where the evidence of the dismissing officer may conflict with a witness statement asserting that long service was considered, adequate reasons must explain the finding made. A fairness conclusion founded on consideration of long service cannot determine the different question whether dismissal was fair if it was not considered. Later internal appeals may be relevant, but their effect on overall fairness must be assessed rather than assumed.

The claimant, employed from 1997, was summarily dismissed for gross misconduct after failing to disclose a driving disqualification affecting his company car. He had received a first and final written warning earlier that year. Two internal appeals failed.

An Employment Tribunal dismissed his complaints of unfair dismissal and wrongful dismissal. It found that the dismissing officer, Mr Silvestri, had considered the claimant’s lengthy service, although it did not weigh heavily given the finding of dishonesty and breakdown of trust and confidence.

The claimant appealed on the sole permitted ground that the Tribunal had failed properly to address evidence given in cross-examination which arguably conflicted with Mr Silvestri’s witness statement on whether he had considered long service. The central issue was whether the Tribunal had given adequate reasons for its factual finding and whether that deficiency affected the fairness determination.

1. Appeal allowed. The Employment Tribunal’s decision was deficient on a material issue and the unfair-dismissal complaint was remitted for limited reconsideration before a different judge.

2. Under section 98(4) of the Employment Rights Act 1996, the relevance and weight of length of service are fact-sensitive. [2004] EWCA Civ 402 establishes that a long and clean record may properly be considered when judging whether dismissal was an appropriate response. Some misconduct may nevertheless be so serious that dismissal is appropriate regardless of service.

3. The claimant had expressly relied on his 25 years’ service as mitigation. Mr Silvestri’s witness statement said he had considered it, but his cross-examination answers could reasonably be read as saying that he did not need to consider it. The dismissal letter did not mention the point. In those circumstances, the Tribunal had to explain why it accepted the witness-statement evidence despite the potentially conflicting or ambiguous oral evidence.

4. The EAT could not make that factual finding afresh. Nor could it uphold the decision on the basis that dismissal would have been reasonable had long service been considered. That conclusion did not answer whether it was fair if the dismissing officer had failed to consider it altogether. Likewise, the EAT could not be sure that the Tribunal would have regarded the subsequent appeals as curing that potential defect.

5. The matter was remitted to determine afresh whether Mr Silvestri considered length of service and, in light of that finding and the undisturbed findings, whether the dismissal was fair. If unfair, remedy issues, including Polkey and contributory conduct, could then arise. Mr Silvestri may give evidence afresh and be cross-examined on that limited issue.

• Employment Appeal Tribunal: allowed the appeal and remitted the unfair-dismissal issue for a fresh factual finding and consequential fairness determination: [2025] EAT 174.
• Employment Tribunal, West Midlands: dismissed the claimant’s complaints of unfair dismissal and wrongful dismissal. The citation and decision date were not stated in the judgment.