The claimant had been dismissed from his job as a driving test examiner after he drove home the car of a student who he had failed and considered unsafe, contrary to the Respondent's examiner guidance. The claimant also did not tell his manager about the incident who only found out by chance 7 weeks later. After an investigation, the claimant was dismissed because trust had been irreparably damaged. The judge in the ET found that the investigation process had been flawed and the dismissal was unfair. However he found that the claimant was ‘wholly the author of his own misfortune” partly because as a former police officer he knew the importance of following the rules and because he had kept quiet. It would therefore be inequitable to make any compensatory award.
The Hon Lord Fairley allows the appeal partly because he agrees with the submission that to reduce the award by 100% was perverse when the investigation had been flawed, though he did find that it was open to the judge to make such a reduction. He therefore remitted the case back to the same employment judge for reconsideration of the awards.