Employment Law Digest November 2025 – Case law update

Unfair dismissal and the importance of the appeal process

In Davidson v National Express Limited:

The claimant was a PCV coach driver, air side, at Stansted airport. In her role she was required to take a breath test on arrival at work each day.

When tests taken by the claimant exceeded the alcohol limit in the respondent’s drugs and alcohol policy, the claimant was taken through an investigation, followed by a disciplinary hearing, which resulted in the claimant’s summary dismissal.

The claimant’s suggestion that the reasons for the failed tests were the Listerine, and antibiotics which she had started the night before, having been diagnosed with a kidney infection, were rejected by the respondent. The respondent found that her evidence had changed during the disciplinary process as she had separately admitted to drinking alcohol the night before the test.

Her internal appeal was unsuccessful.

The claimant pursued complaints of unfair and wrongful dismissal.

The Employment Tribunal (ET) upheld the complaint of unfair dismissal, because (but only because) it concluded that the manager who heard the appeal had not fully considered the claimant’s grounds of appeal, and the appeal meeting was flawed. The complaint of wrongful dismissal failed.

In relation to compensation, the tribunal decided that:

• The compensatory award should be calculated by reference to the period until the claimant reached age 65 (she was aged 61 when dismissed).
• There was a 75% chance that had a fair appeal been conducted by the respondent, the claimant’s appeal would have been unsuccessful, so that there should be a Polkey reduction of her compensatory award of 75%.
• She had caused or contributed to her dismissal by her conduct, such that the compensatory award should be reduced by a further 75%, and the basic award reduced by 75%.
• The respondent had unreasonably failed to comply with the ACAS Code of Practice in respect of the appeal, and so the compensatory award should be increased by 10%.

The claimant appealed to the Employment Appeal Tribunal (EAT) on various grounds including the fact that compensation had been limited to age 65 but she had referred to evidence that financial and personal commitments meant she could not afford to retire before age 70.

All grounds for appeal were dismissed except for the ET’s assessment of the claimant’s loss of earnings. Although the ET limited the underlying calculation of future loss to age 65, considering that to be just and equitable in all the circumstances, the EAT said that the ET was required, as best it could, to assess the future loss sustained by the claimant in consequence of the dismissal, and attributable to the action of the respondent. The ET had failed to engage with the claimant’s case that she intended to work until age 70. The EAT sent the calculation of the underlying loss for the purposes of the compensatory award back to the ET for fresh consideration.

As well as being a reminder of the risk of lengthy loss of earnings claims from claimants who are closer to retiring age, this case is a reminder for employers of the importance of following a fair and reasonable process all the way through, up to and including the appeal stage. A fair dismissal can be undermined by an unfair appeal.

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Take Me There

Using scripts in disciplinary hearings

In Alom v The Financial Conduct Authority:

The claimant was investigated in relation to various misconduct allegations. Only two of the allegations proceeded to a disciplinary hearing, and he was dismissed for gross misconduct.

He was found to have sent an anonymous email to a colleague – which he denied having sent – which was considered, in view of its content, to amount to harassment.

A further email, sent by him, was found to have breached confidence in relation to the report of an unsuccessful complaint he had made about the alleged conduct of the same colleague.

The tribunal dismissed his complaints of unfair dismissal and race discrimination.

His appeal on various grounds to the EAT failed:

• The fact that the claimant had not been provided with transcripts of the investigation interviews with the complainant did not make the dismissal unfair. The claimant claimed he did not fairly know the case he has to answer. However, the complainant’s original allegations had been wide-ranging, but the disciplinary charges related only to the two emails. The claimant had been provided with sufficient information about the two emails to defend himself, as required by the Acas Code of Practice.
• A “script” had been prepared by HR for the disciplinary hearing. The claimant did not complain of the use of such a document, or the general content. His challenge focussed on two questions in it which he claimed showed that the outcome of the disciplinary process had been “predetermined” or “premeditated”. Whilst the EAT considered there was some force in the claimant’s argument, the script provided for the claimant’s responses to be invited, and the overall script did not presume any particular outcome of the process. The ET heard evidence from the dismissing manager and had been satisfied that he had come to his own view, and that he had come to his decision only after hearing from the claimant. The ET was entitled, having heard the dismissing manager’s evidence, to accept that the decision to dismiss was his alone, and that he took into account the claimant’s representations when reaching it.
• A search of the claimant’s work computer, as part of the initial investigation, did not make his subsequent dismissal unfair. Even if the way the search was conducted amounted to a disproportionate infringement of the claimant’s Article 8 rights (right to privacy), the respondent did not rely upon any aspect of that investigation in support of the actual disciplinary charges or its decision to dismiss.

Guidance ‘scripts’ for managers to use at disciplinary hearings can be very helpful, particularly to help focus the case and what needs to be covered in the hearing – but they must not suggest the outcome is pre-determined and the manager must carefully consider what the employee’s has to say in response to the allegations before reaching a decision on the outcome.

Whistleblowing

In Henderson v GCRM Limited and Others:

• The claimant was employed as an embryologist. Over a period of almost two years between August 2019 and August 2021, she made a number of disclosures about staffing issues to managers.
• In or about August 2021, the claimant’s line manager appointed an investigating officer to investigate allegations about the claimant’s conduct.
• A meeting took place with the claimant during which, an attempt was made to negotiate a termination of her employment.
• No agreement was reached about termination of the claimant’s employment. A letter was sent to her about the conduct allegations that were to be investigated. The claimant was suspended on full pay in the meantime.
• An investigation was completed, and a report produced. This led to a disciplinary process being commenced.
• The manager appointed to conduct the disciplinary hearing was employed by a different company in the group and was not aware of the history of the claimant’s disclosures.
• Following a disciplinary hearing, the claimant was dismissed. The reasons given for the dismissal all related to the claimant’s conduct and not to any protected disclosure made by her. The dismissing manager was genuine in her belief that the claimant was guilty of misconduct.

Following her dismissal, the claimant brought a complaint of “ordinary” unfair dismissal as well as complaints under whistleblowing provisions of automatic unfair dismissal against her employer and a complaint for the detriment of dismissal against her employer, her line manager and the dismissing manager.

The ET found that the line manager had been a “key influence” upon the dismissing manager. It found that the line manager and investigating officer were motivated to initiate and conduct a disciplinary investigation against the claimant, and to interact with the dismissing manager in a way which was driven by the claimant making protected disclosures.

The complaint of ordinary unfair dismissal succeeded against the employer. Whilst the belief of the dismissing manager that the claimant was guilty of gross misconduct / negligence was genuinely held, it was not held on reasonable grounds or after reasonable inquiry, and further, the decision to dismiss was not within the band of reasonable responses.

The ET found that the claimant had made protected disclosures and that these had a “material influence” upon her dismissal. The ET found the dismissing manager liable for whistleblowing detriment as well as the employer, but not the line manager. As the line manager had not personally taken the decision to dismiss the claimant, the ET found that he could not be liable for the detriment of dismissal. The claim for automatic unfair dismissal was dismissed on the basis that the disclosures were not the sole or principal reason for the dismissal.

On appeal, the EAT found that:

• It cannot have been the intention of Parliament to impose unlimited liability upon innocent individuals who have not personally been motivated by a proscribed reason. That part of the ET’s judgment was set aside, and a decision substituted, dismissing the detriment complaints against the dismissing manager and employer.
• The ET should have made clear findings about whether or not the line manager had improperly manipulated the dismissing manager through his involvement in the disciplinary process or created a false pretext for dismissal which he induced the dismissing manager to adopt in order to hide a proscribed reason. The ET had not done so. The complaint of automatic unfair dismissal against the employer was sent back to the ET for reconsideration.