National Express Ltd

Case Summary

The claimant, a coach driver, was dismissed for failing an alcohol test. The tribunal found the dismissal to be unfair due to a flawed appeal process, but made reductions to the compensation for contributory fault and the likelihood of a fair dismissal. The calculation of the underlying loss for the compensatory award was remitted for fresh consideration.

The tribunal found the dismissal unfair due to procedural defects in the appeal process, but reduced compensation for the claimant's contributory conduct and the prospect that a fair procedure might have led to dismissal anyway.

• •The claimant, a coach driver, was dismissed because she failed an alcohol test.
• •The tribunal found her dismissal to be unfair because (but only because) she did not receive a fair appeal.
• •The tribunal made (separately) a Polkey reduction to the compensatory award of 75% and a contributory-conduct reduction to both the basic and compensatory awards of 75%. It also applied an ACAS-Code uplift to the compensatory award of 10%.
• •The tribunal erred in its assessment of the underlying loss for the purposes of the compensatory award. The calculation of the underlying loss for the purposes of the compensatory award was accordingly remitted to the tribunal for fresh consideration.

Judgment approved by the court for handing down Davidson v National Express Limited © EAT 2025 Page 1 [2025] EAT 151 Neutral Citation Number: [2025] EAT 151 Case No: EA-2024-000081-OO EMPLOYMENT APPEAL TRIBUNAL Rolls Building Fetter Lane, London, EC4A 1NL Date: 21 October 2025 Before : HIS HONOUR JUDGE AUERBACH - - - - - - - - - - - - - - - - - - - - - Between : MS J DAVIDSON Appellant - and – NATIONAL EXPRESS LIMITED Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Saul Margo (instructed by Ronald Fletcher Baker LLP) for the Appellant Steve Peacock (of Weightmans LLP) for the Respondent Hearing date: 18 September 2025 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Judgment approved by the court for handing down Davidson v National Express Limited © EAT 2025 Page 2 [2025] EAT 151 SUMMARY UNFAIR DISMISSAL The claimant, a coach driver, was dismissed because she failed an alcohol test. The tribunal found her dismissal to be unfair because (but only because) she did not receive a fair appeal. A complaint of wrongful dismissal failed. The tribunal made (separately) a Polkey reduction to the compensatory award of 75% and a contributory-conduct reduction to both the basic and compensatory awards of 75%. It also applied an ACAS-Code uplift to the compensatory award of 10%. Upon appeal, a number of Meek challenges to the tribunal’s reasoning, said to have a bearing on Polkey, contributory conduct and/or wrongful dismissed, all failed. However, the tribunal erred in its assessment of the underlying loss for the purposes of the compensatory award. The claimant, who was 61 at the time of dismissal, and 63 at the time of the tribunal’s hearing, was in another job at a lower rate of pay. She claimed future loss up to age 70 on the basis that, of necessity, she intended to work up to that age. The tri…