Unfair disciplinary hearing

Case 6: The facts

Mr Waters was dismissed by his two fellow directors for failing to renew the licence for the nightclub that they ran. They went through dismissal procedures, but only after they had decided to dismiss him.

A tribunal held that this amounted to a purely procedural defect, and that Waters would have been dismissed even if a fair procedure had been followed. Under the new section 98A of the Employment Rights Act 1996, this did not make his dismissal unfair, so the tribunal rejected his unfair dismissal claim.

The ruling

The Employment Appeal Tribunal said that holding a disciplinary procedure after a decision has been made amounts to substantive rather than procedural unfairness.

But the main point in the case, it said, was that the tribunal had not properly considered section 98A: it was for the employer to show that this applied, but neither party had raised the point at the hearing so the tribunal could not rely on it.

The case was sent to be heard again by a different tribunal.

Waters v Bankside Leisure Ltd UKEAT/0175/06