The claimant had brought various claims against the respondent which most notably included a claim for unfair dismissal.  All of these claims were rejected by the Employment Tribunal at first instance when the claimant had represented himself.   This case was an appeal on the grounds that the Employment Tribunal had failed to adjourn the case as a result of the claimant’s health concerns at the hearing itself.  A second ground of appeal was that there was an error in law by stating the procedural defects in the dismissal had been remedied due to the substantial merits of the respondent’s case.

In terms of the first ground of appeal, it was directly relating to the Employment Tribunal’s position in ensuring a fair trial.  The EAT outlined that in Shui v Manchester University there is a duty on an appellate body to ensure that the body below has followed a fair process.  The EAT examined the decision from the ET where it was clear that the claimant despite showing some health concerns stated his willingness to continue with the trial citing that he did not want to have it delayed any longer.   For this reason, it was held that the Tribunal had not erred in allowing the case to proceed despite the health concerns of the claimant.

The other ground of appeal related to the procedure adopted in the dismissal.  The ET outlined that they had ‘serious reservations’ about the process that had been adopted relating to the dismissal.  This was on the basis that the individual carrying out the investigation had been involved in the initial complaints that had been made and had also prepared a disciplinary letter if the claimant’s grievance failed (which it did).

There were also issues with the appeal process where Ms Pedersen (who carried out the appeal) stated that she could only look at the allegations of gross misconduct with a view to remitting it back to the original decision maker rather than making a new and fresh binding decision.  The ET did not find any procedural unfair dismissal stating that the substantive reasons which were four grounds of gross misconduct which had been admitted meant that the procedural grounds should be put to one side.  The EAT outlined that whilst a Polkey reduction may be made to any award or even extinguish an award it is not for them to complete that process. They stated that where there are procedural irregularities then it would mean the dismissal is unfair at which point Polkey could then be considered.  For this reason, the case was remitted back to the ET.

Practical Lessons

This case demonstrates that even where there has been clear gross misconduct that has led to dismissal it does not mean that the procedure can be thrown out the window.   Instead, the procedure must still be followed otherwise a finding of unfair dismissal will still be found.  There may be a reduction in award as is likely in this case but the failure to follow the procedure following an error in law from the Tribunal has lengthened the process in this case significantly.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-n-a-chowdhury-v-marsh-farm-futures-ukeat-0205-19-da