A manager said 'he is done at the business', but the dismissal was fair

In Lamb v Teva UK Ltd, the Employment Appeal Tribunal 'EAT' has refused to overturn an Employment Tribunal's finding that a dismissal for misconduct was fair despite four complaints from the employee that:

1. The investigating manager was a witness.
2. The note-taker at the disciplinary was a witness.
3. CCTV footage was only provided 24 hours before the disciplinary meeting.
4. A manager not involved in the hearing had said something like 'I don't think he's going to be back at the business' or 'He's done at the business' before the disciplinary meeting.

The case arose after the employee had wrongly signed off as safe an electrical fault, that led to someone getting an electric shock injury. The employee challenged the Tribunal's finding that the dismissal was fair despite all the issues he raised, but he failed to overturn the decision on appeal. The appeal was rejected in robust terms, the EAT warned against setting standards for disciplinary procedures as if an employer was investigating a crime or even dealing with a civil legal claim, in a key quote the EAT said:

'What is required is substantive industrial fairness, that takes account of the seriousness of the allegations and ensures that the allegations are investigated fairly, looking both for material that may support or undermine the allegation.'

Whilst the involvement of witnesses in a disciplinary investigation is not ideal, here the involvement was relatively minor and wasn't serious enough to affect the fairness of the process; the lateness of CCTV footage wasn't objected to at the time, and whilst a comment about the employee not coming back had been made, it was not said the manager who took the decision to dismiss, who the Employment Tribunal found had clearly made his own decision. Whilst the comment was 'unwise', it did not mean that the decision was unfair.

Takeaways

This case is a useful pointer for employers and employees as to the limited scope for challenging an Employment Tribunal's findings that a dismissal is fair (or unfair) by looking at particular points without considering the process overall, which is very much a matter of the impression made at the hearing. However, employers mindful of the forthcoming scrapping of the limits on unfair dismissal compensation under the Employment Rights Act 2025 would be well-advised to avoid procedural mishaps such as those in this case whenever possible in case a dismissal is found to be unfair as it could be an avoidable expensive mistake.

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