Mr Saunders worked for OCS at Gatwick Airport, transporting passengers with limited mobility to and from aeroplanes. He was later dismissed after a BAA CCTV recording apparently showed him causing criminal damage to a lift.

BAA no longer wanted him on the site, and so removed his “air-side pass”. After carrying out the required disciplinary hearings, OCS eventually dismissed Mr Saunders.

Mr Saunders brought a claim for unfair dismissal.

The Tribunal found that the reason behind the dismissal was not the fact that Mr Saunders had had his air-side pass withdrawn (which meant that he was unable to carry out his duties at Gatwick) as OCS had claimed, but rather because they believed that Mr Saunders had actually damaged the lift. It was also found that the disciplinary process had been deeply flawed, and so the dismissal was automatically unfair.

Mr Saunders was awarded the basic award by the Tribunal, but no compensatory award was made. This was because the Tribunal felt that:

• OCS staff could only work on a BAA site with explicit permission from BAA.
• The loss of his air-side pass (and BAA’s refusal to return it) meant that Mr Saunders could not work on BAA sites.
• OCS were therefore unable to employ him either at Gatwick or Heathrow.

In the light of these facts, the Tribunal decided that the dismissal was not the sole cause of Mr Saunders’ loss of earnings. The substantial reason for his losses was the withdrawal of the pass, since this left him unable to work for his employers.

Mr Saunders appealed the compensation ruling, and won.

During the appeal at the Employment Appeal Tribunal (EAT), HHJ Hand set out the compensation requirements from the Employment Rights Act 1996 Sec 123:

• The amount has to be such as the Tribunal considers just and equitable in all the circumstances.
• It should be arrived at by having regard to the loss sustained by the complainant.
• That loss has to be in consequence of the dismissal.
• That loss has to be attributable to action taken by the employer.

The EAT found that the tribunal had not focussed on the loss Mr Saunders had suffered as a result of his employer’s actions, but had instead looked at “concurrent and competing causation” and determined that withdrawal of the air-side pass “trumped” the reason given by OCS for the dismissal.

In taking this approach, they had examined the relationship between BAA and OCS but had neglected to explore the relationship between OCS and Mr Saunders, which was the relationship that should have been under scrutiny.

Since it had found that summary dismissal had not been a fair step to take, the tribunal should at least have taken Mr Saunders’ lost notice into account when determining compensation.

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