Employment Appeal Tribunal Victory

RFB’s Employment Law Team has secured a significant victory at the Employment Appeal Tribunal (‘EAT’), successfully appealing a case that reinforces the importance of fair and reasoned assessment in employment dismissal claims.

In October 2023, the Employment Department successfully represented Jacqueline Davidson, a PCV driver, in her unfair dismissal claim against National Express Limited. Ms. Davidson had failed a workplace breathalyser test due to the use of alcohol-based mouthwash registering over the company’s limit, but still three times below the national drink-driving limit.  The national drink-driving limit for drivers in England, Wales and Northern Ireland is 3.5 on a breathalyser. Ms. Davidson’s readings on the breathalyser were 1.3 then 1.0 and finally 0.8 on three successive attempts taken within a short period of time of each other. After failing the test National Express Limited nevertheless permitted Ms. Davidson to drive herself home and later dismissed her.

The London East Employment Tribunal (the ‘Tribunal’) found the dismissal unfair on the basis that the procedure adopted at the appeal stage was flawed and uplifted her compensatory award by 10% for non-compliance with the ACAS Code. However, the Tribunal applied a 75% reduction for Polkey and contributory conduct.

RFB’s Employment Department appealed to the EAT, challenging the significant compensatory reduction, the lack of reasoning for limiting compensation to age 65 as it was Ms. Davidson’s case she would have retired at 70. Ms Davidson also appealed the finding of wrongful dismissal.

The EAT found that the Tribunal had erred in its assessment of losses, for the purpose of the compensatory award. The Tribunal limited the underlying calculation of future loss of earnings to the period up to the age of 65 years old considering that to be just and equitable in all the circumstances. However, the EAT found the Tribunal was required as best it could to assess the future loss sustained by Ms. Davidson in consequence of the dismissal, and attributable to the actions of National Express Limited. The EAT also noted that the Tribunal failed to engage with Ms. Davidson’s position that she would have to work up to the age of 70 years old.

The matter has now been remitted to the Employment Tribunal for fresh consideration.

This decision is an important reminder that Tribunals are required to assess the period of loss through reference to all the evidence before it and cannot simply default to retirement age without justification.

Congratulations to Michael Michaeloudis and Tariro Carmel Nyoka, who represented the Claimant with Saul Margo of Outer Temple Chambers.