Driving home the importance of proper procedure and careful calculations.
The facts
On arriving at work on the 26 June 2021, 61-year-old coach driver Ms Davidson failed a routine alcohol breath test. A reading equal to or above 8mg per 100ml would have been unacceptable under the employer’s policy; Ms Davidson’s first test reading was 13mg, a second test 20 minutes later showed 10mg, and by her third test, over half an hour after the first reading, it had reduced to 8mg.
Between each of the three tests, Ms Davidson went to the toilet, the first time she came back drinking water and the next time returned eating a mint.
Ms Davidson told her supervisor, Mr Fisher, that she had a kidney infection and before leaving home that day had used Listerine and hand sanitiser.
Mr Fisher sent Ms Davidson home and prepared a statement in which he said she had told him she had had three or four drinks the night before.
The employer carried out an internal investigation. Ms Davidson suggested that the Listerine and antibiotics she was taking for her kidney infection could have caused the high alcohol readings. She denied having told Mr Fisher that she had been drinking the night before and said that she could not drink due to taking antibiotics. Tests were carried out to assess the impact of Listerine and hand gel on alcohol readings, which returned results of 0mg and 6mg respectively.
A disciplinary hearing took place and Ms Davidson admitted that she had had a couple of drinks the night before. She was summarily dismissed (i.e. without notice) for gross misconduct.
Ms Davidson appealed, however the decision to dismiss her was upheld. She brought claims at the Employment Tribunal for unfair dismissal and wrongful dismissal.
Decision of the Employment Tribunal (ET)
The ET dismissed Ms Davidson’s complaint of wrongful dismissal as it found that National Express’ policies were reasonable and clear and that she was aware of the risk of dismissal if she breached them.
It did, however, uphold her complaint of unfair dismissal, finding that she was unfairly dismissed because, and only because, the appeal procedure was unfair. Specifically, the appeal meeting was deemed to be flawed, as the employer only addressed three of the six grounds of appeal that Ms Davidson relied upon.
In determining the compensation to be awarded, the ET had to assess Ms Davidson’s potential future loss of earnings. Although she had obtained alternative employment by the time of the hearing, this was at a lower rate of pay and therefore it was necessary for the ET to consider what age she was expected to carry on working until.
Although Ms Davidson was 63 at the time of the hearing and had subsequently provided evidence that she didn’t intend to retire until she was 70, the ET decided to limit any future loss of earnings to her 65th birthday, the assumed retirement age.
The ET then made a 75% reduction to the overall compensation awarded as it found that there was a significant chance that even if the employer’s appeal process had been fair, the decision to dismiss would likely have been upheld (i.e. it would not have made any difference), and secondly, that Ms Davidson had caused or contributed to her dismissal.
Appeal to the Employment Appeal Tribunal (EAT)
Ms Davidson appealed to the EAT on several grounds relating to the calculation of compensation and the decision to rely on her 65th birthday to calculate her future loss of earnings, as well as the failure of the ET to provide sufficient reasons for its decisions.
The EAT found that the ET had sufficiently explained its reasons for applying the reductions to the compensation awarded, and this was not overturned. However, the EAT was not satisfied that the ET’s decision to limit her future loss of earnings to Ms Davidson’s 65th birthday was sufficiently well-reasoned.
Although calculating future loss naturally contains a degree of uncertainty as it is necessary to try and predict what will happen in the future, the EAT found that this was not a reason for failing to consider the evidence provided by Ms Davidson regarding her expectation to work until she was 70.
The matter was sent back to ET to re-assess the calculations of past and future loss of earnings.