“It’s fine, she failed the test, dismissal was inevitable…”

 

Not quite, said the Employment Appeal Tribunal.

 

That assumption didn’t hold up in Ms J Davidson v National Express Ltd

Even where misconduct seems clear-cut, employers still need to show how they assessed fairness and loss and not just why they dismissed an employee.

 

What happened?

 

Ms Davidson, a coach driver at Stansted Airport, was dismissed after failing three alcohol tests (13mg, 10mg, 8mg).

 

She said it was down to Listerine and hand sanitiser, not alcohol.

The Tribunal found her dismissal to be unfair because (but only because) she did not receive a fair appeal.

 

The EAT disagreed.

 

The Employment Appeal Tribunal upheld most of the decision but said the tribunal got the compensation calculation wrong.

Why?

Because the Tribunal:

  • Didn’t properly assess what future loss Ms Davidson would actually suffer;
  • Ignored her evidence that she’d work beyond 65; and
  • Used “just and equitable” as a substitute for analysis.

Why this matters for HR and managers

Even where dismissal looks justified, tribunals expect:

  • A fair appeal process transparent reasoning on compensation
  • Evidence for any limits on loss or mitigation

Structured reasoning matters as much as structured process.

The takeaway

Process shows structure but reasoning shows fairness.

Ask yourself:

Could we justify every part of our process and reasoning if a Tribunal looked line by line?