Employment Solicitors

When a claimant is successful in a claim of unfair dismissal, the Employment Tribunal (ET) must make a compensatory award that is just and equitable in all the circumstances, taking into account the economic loss sustained by the complainant as a result of his or her dismissal in so far as that loss is attributable to action taken by the employer (Employment Rights Act 1996, Section 123(1)).

In Saunders v OCS Group Ltd., Mr Saunders brought a claim of unfair dismissal after he was dismissed for causing criminal damage to a lift at Gatwick Airport, where he worked for OCS assisting passengers with mobility problems to and from aircraft. This often involved driving an electrically powered buggy and was one of several services provided by OCS under a contract for services with the airport operator, BAA. To perform this function, Mr Saunders required an airside pass issued by BAA.

On finding the lift out of action, Mr Saunders had employed a technique shown to him for forcing the doors back onto their rails. This involved kicking the lift and pushing the doors. He was seen doing this on CCTV by a member of BAA’s staff, who insisted he be removed from the airport and his airside pass be withdrawn at once. A later examination of the lift revealed that the damage to the doors had been caused by one of the airport buggies.

Mr Saunders was suspended and summoned to attend a disciplinary hearing. He denied damaging the lift but was told that BAA thought him guilty of criminal damage and wanted him off site. He was summarily dismissed.

The ET rejected OCS’s contention that the reason for Mr Saunders’ dismissal was BAA’s withdrawal of his pass and found that it was because OCS believed he had caused criminal damage to the lift. In the ET’s view, the dismissal was unfair. The disciplinary hearing was flawed and no proper attempt had been made to identify the true cause of the lift damage before Mr Saunders was dismissed. However, when assessing the level of his compensatory award, the ET found that the dismissal was only one of the causes of his loss of wages. The second and more substantive cause was the withdrawal of his airside pass, since he could not work at Gatwick or Heathrow without one. It therefore made a nil award for loss of wages incurred after the date of Mr Saunders’ dismissal.

Mr Saunders appealed against the nil compensatory award.

The Employment Appeal Tribunal (EAT) found that the ET had erred in not focusing on what loss was attributable to the action taken by the employer. Instead, when fixing the level of compensatory award it had considered the matter in terms of ‘competing and concurrent causation’ and had reintroduced by way of causation a reason for dismissal (withdrawal of the airside pass) which it had itself expressly rejected. In so doing, the ET had failed to consider the loss in terms of Mr Saunders’ relationship with his employer, losing sight of what loss had been caused by the dismissal and instead focusing on what the loss might have been had there been a dismissal on some other basis. Having found that there was no gross misconduct and so no grounds for summary dismissal, Mr Saunders was entitled either to be paid in lieu of notice or to work out his notice.

In addition, the ET had reached its decision without giving any consideration to the ‘alternative world’ scenario. What process a reasonable employer would undertake in the circumstances was at least worthy of consideration. What would have been the outcome if a reasonable employer had asked BAA to reinstate Mr Saunders’ pass rather than accepting the inevitability that any such request would be refused?

The appeal was therefore allowed and the case remitted to a fresh ET to re-examine the question of just and equitable compensation in the circumstances.

Dismissing an employee for misconduct without having first undertaken a proper review of the evidence can be unwise. Contact our Employment department for advice on any employment law matter.