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The EAT in recounting the flawed investigation mentioned that after the claimant had been seen kicking the lift doors, all attempts to find the real cause of the damage and failure of the lift were abandoned (the ET exonerated the claimant from any responsibility for the lift damage).

The disciplinary hearing and appeal did not correct the appalling investigation and the dismissal was confirmed. The ET concluded that the claimant was dismissed for supposedly having damaged the lift. It found that the investigation was unfair as was the disciplinary procedure and rejected the withdrawal of the air side pass as the reason for the dismissal.

The ET found though that the dismissal was just one of the causes of the Claimant's loss of wages with the substantive cause being the withdrawal of his pass. In the light of this the ET decided “it would not be just and equitable to make an award of compensation for loss of wages incurred after the date of the Claimant's dismissal. The Claimant was paid up to the date of termination of his employment and the Tribunal therefore makes nil award of compensation in respect of his loss of wages."

Buxton LJ in Gover and Others v Property Care Ltd [2006] said, “all situations are to be judged by reference to the wording of section 123(1) of the ERA”. According to Lord Prosser at the Court of Session in King v Eton Ltd No 2 [1998] (approved by the Court of Appeal in Lambe v 186K Ltd [2005]),

"… the matter will be one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure made no difference, or whether the failure was such that one simply cannot sensibly reconstruct the world as it might have been."

The EAT criticised the ET's interpretation of Section 123(1) of the ERA:

"… the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

The EAT cited the sequential nature of S123:

1. the amount has to be such as the Tribunal considers just and equitable in all the circumstances.
2. it should be arrived at by having regard to the loss sustained by the complainant.
3. that loss has to be in consequence of the dismissal.
4. that loss has to be attributable to action taken by the employer.

“The Tribunal, in effect, thought that the withdrawal of the air side pass was some kind of "trumping" of the reason for dismissal. In our judgment that was not the right approach to section 123(1). The Tribunal misdirected themselves by failing to ask what was loss was consequent upon the dismissal and was that loss attributable to the action taken by the employer? “

Once the ET found that the dismissal on the grounds of gross misconduct was unfair it failed to consider the employee's contractual right regarding being dismissed. There being no gross misconduct and therefor no reason for summary dismissal the claimant was entitled to be paid in lieu of notice.

The employment tribunal shoud not have accepted the dismissal without notice in relation to section 123(1). The EAT found that the tribunal “misdirected themselves by looking at section 123 of the Act entirely from the point of view of the relationship between the employer and BAA; it was not looked at from the point of view of the consequences of the dismissal, vis a vis the relationship between the employee and the employer”.

The Employment Appeal Tribunal decided that the ET had made an error in law by not considering an alternative to the employer simply accepting an early decision of BAA to withdraw the claimant's pass.

The original ET decision on the basic award and loss of statutory rights were allowed to stand. The appeal was allowed. The case is therefore being remitted (sent) to a new tribunal to consider making an award for compensation under section 123 ERA.

The transcript of this case can be found  Here