Employment Judge BaranMs L Whittington (instructed by Counsel) for respondentDate 30 October 2025
JUDGMENT
The complaint of unfair dismissal under Part X Employment Rights Act 1996 is well- founded. The Claimant was unfairly dismissed.
REASONS
[1]By ET1 dated 21st July 2023, the Claimant Mr Adrian Albu brought a complaint of unfair dismissal arising out of the termination of his employment effective from 17th March 2023. By ET3 dated 17th October 2023 the Respondent, London Underground, resisted Mr Albu’s claims.[2]The claim was listed for final hearing and determination on 24th – 26th March 2025. Mr Albu attended to give evidence in support of his claim. He was represented by Ms Hindley of the Free Representation Unit. London Underground was represented by Miss Whittington of Counsel. Miss Janine Lewis, Depot Maintenance Unit Area Manager, and Mr Jonathan Elliott, Programme Delivery Manager gave evidence for London Underground. Mr Elliott gave his evidence from Malaysia, pursuant to permission granted by Employment Judge Quill on 19th March 2025. B. PRELIMINARY MATTERS[3]This case was before Employment Judge Partington for case management on 29th July 2024. At the hearing, Mr Albu, via his representative Ms Hindley, confirmed that his case was one of ordinary unfair dismissal only. This has also been confirmed in writing. Following further discussion, the issues arising were identified. The case was set down for this hearing with a proposed timetable covering the 3 days.[4]At the outset of this hearing, I took the parties to the case management order made. The parties confirmed that the issues for determination are listed at paragraph 43. Further, it was confirmed that in respect of issue 1.5.2, Mr Albu agreed that at the time of his dismissal by Miss Lewis he had not satisfied the ‘Experienced Worker Route’ to formal qualification as an approved electrician. The status of his qualifications and whether he was sufficiently qualified for the role he had with London Underground remained in issue between the parties. In particular, the situation at the time of the appeal against dismissal would need to be considered on the evidence.[5]I determined to deal with issues of liability first, leaving questions of any remedy to follow as required. I indicated that I proposed to deal with findings in relation to the ‘no difference’ or Polkey rule and contributory fault when considering my judgment on liability. I proposed to reserve evidence, submissions and findings on other remedy issues until I had given my decision on liability. Both parties agreed to that approach.[6]A preliminary issue was raised as to the admissibility of text redacted from an email dated 6th April 2022. I was not required to make a ruling on this, as by the time evidence started London Underground had pragmatically acknowledged that I could see what was behind the redaction in another document elsewhere.[7]After hearing detailed evidence, which was complex and took longer than expected, I indicated to the parties that I would be reserving judgment. I also observed that now I was fully appraised of the issues in relation to Mr Albu’s qualifications I had reflected on whether I could properly make findings in relation to the ‘no difference’/Polkey point at this stage. I heard submissions from the parties as to whether I should do so. My conclusions in this regard will be evident from the judgment below. C. THE EVIDENCE AND THE DOCUMENTATION[8]In terms of evidence, I was provided with an agreed bundle of documents running to 751 pages. In addition, witness statements were provided by Mr Albu, Miss Lewis and Mr Elliott. I read and considered the statements and the documents they referred to before the hearing started.[9]I was also provided with a Claimant’s List of Key Documents, List of Key People and Skeleton Argument. I received a document containing the Respondent’s Closing Submissions prior to hearing oral submissions from both parties on day 3.[10]I heard oral evidence from Miss Lewis, Mr Elliott and Mr Albu on oath over the course of days 1 to 3. All witnesses confirmed that the witness statements that they had submitted were true. I took this evidence as their evidence in chief. The witnesses were then questioned. D. THE TRIBUNAL’S FINDINGS OF FACT[11]I make the following findings of fact based on the documentary and witness evidence. I apply the civil standard of proof, namely on the balance of probabilities, considering in relation to matters in dispute what likely happened. I have confined these findings as far as possible to matters that are relevant to the legal issues that must be determined to decide the claim, as agreed and set out in EJ Partington’s order.[12]It is not in dispute that Mr Albu accepted an offer of employment with Tube Lines Limited as a Depot Plant Maintenance Fitter in March 2017. He worked at the Northfields depot. His employment was transferred to London Underground under a TUPE transfer shortly afterwards. Later on in 2017 Mr Albu expressed a wish to be transferred to work at the Cockfosters depot, which was nearer to his home.[13]By September 2019, no transfer had taken place. Mr Albu then applied for a job as a grade AT12 Depot Maintenance Unit Plant Fitter based at the Ruislip depot. He responded to a job advert. The job advert contained a list of essential experience criteria to be required of a successful applicant. The criteria included a qualification requirement that the applicant ‘…Must hold formal qualifications (minimum of City & Guilds) in an electrical, electronic or mechanical discipline’.[14]Miss Lewis confirmed in evidence that a job description would be attached to the job advert. The job description for the role in the bundle cites a different qualification requirement to that in the advert. It reads ‘Must hold formal qualifications (minimum of City & Guilds Part 1 & 2) in an electrical or mechanical discipline’.[15]Under cross-examination, Miss Lewis initially maintained that the job description in the bundle was the same one that was sent out with the job advert that Mr Albu applied for. She went on to concede however that she could not be certain it was exactly the same. She accepted that there was a change to it at some point. She told the Tribunal that the word ‘electronic’, found in the job advert, was removed from the job description following Mr Albu’s dismissal. She maintained however that a City & Guilds level 1 and 2 was always a minimum requirement in the job description.[16]Mr Albu told the Tribunal under cross-examination that he accepted that a job description was attached to the advert, but that he did not have access to it. He has not seen the job description so was unable to say if minimum City & Guilds level 1 and 2 was on it.[17]I consider it unlikely that the job advert reflected the job description essential requirements as they were at the time in some respects but not all. It is more likely that the job description circulated with the job advert simply reproduced the requirements as they stood, and that all differences between the advert and the job description provided are because of later changes to the job description to address the issues arising in Mr Albu’s case. These include removing the word ‘electronic’ and adding ‘Part 1 & 2’. This is consistent with the way that the job description is recorded in the appeal outcome letter, which is the same as the original job advert. I find as a fact that both aspects of the job description were amended after the appeal outcome of August 2023.[18]I accept Miss Lewis’ evidence that other employees in this Plant Fitter role had the ‘minimum City & Guilds Part 1 & 2’ qualifications or their equivalent as set out in paragraph 26 of her witness statement. Whilst she was challenged on this in cross-examination, in particular in relation to employee D, I accept her explanation that they were qualified, and any apparent lack of documentation was because they had subsequently left employment.[19]In making his application for the Plant Fitter role Mr Albu provided his CV and details of his formal qualifications as required by London Underground’s ‘Taleo’ application portal system. He listed 4 relevant qualifications as follows:a. Degree in Electrical and Electronic Engineering – this being his university degree awarded by the Universitatea “Dunarea de Jos” din Galati, Romania in September 1999. I will refer to this as ‘the Romanian degree’b. NVQ City & Guilds 2391 Inspection and Testing Level 3 pass – awarded in April 2007. I will refer to this as ‘the 2391’c. NVQ BS 7671:2018, 18th ed of the IET Wiring Regulations Level 3 pass – awarded in April 2019. I will refer to this as ‘the 7671’d. NVQ City & Guilds 2377 Inspection and Testing Level 3 pass – awarded in December 2007. I will refer to this as ‘the 2377’.[20]Mr Albu told the Tribunal that he believed he had the necessary formal qualifications for the Plant Fitter role, by reference to his academic qualifications.[21]Miss Lewis told the Tribunal that she was the Depot Maintenance Unit Area Manager. She oversaw managers and team leaders who in turn managed the Plant Fitters. She was on the interview panel involved in the appointment of Mr Albu. She accepted that Mr Albu was employed in the role at Ruislip by London Underground in full knowledge of his qualifications, although she observed that aside from the CV documents were not requested for review at interview. This was in line with Mr Albu's evidence that he was not asked to bring his qualifications to the interview. Miss Lewis accepted that his application was reviewed by recruitment staff who confirmed he satisfied the qualification requirements and put him forwards for interview.[22]I find as a fact that Mr Albu presented an accurate account of his paper qualifications and his work experience to London Underground. In reliance on his CV and job application, and following interview, London Underground offered the Plant Fitter job to Mr Albu. However, I also find that upon appointment Mr Albu did not hold formal qualifications minimum City & Guilds Part 1 & 2 in an electrical or mechanical discipline, in line with London Underground’s approach to the job description requirements.[23]Mr Albu was offered the DMU Plant Fitter role in November 2019. He accepted the offer by signing a contract of employment in June 2020. He was deployed to work at the Ruislip depot. He maintained however a wish to work instead at the Cockfosters depot. He was not transferred. Frustrated, he lodged grievances in June 2020. Miss Lewis accepted that she was part of the management team involved in the transfer request and about whom Mr Albu lodged the grievances.[24]The grievances were considered and ultimately rejected. Following appeal, however, it was proposed on 25th February 2021 to transfer Mr Albu to Cockfosters on a temporary basis from 7th June 2021 until a full-time permanent position became available.[25]At this point Mr Albu had been in post at Ruislip for over a year. As Miss Lewis pointed out under cross-examination, this period coincided with COVID-19 restrictions and lockdown where work was ‘minimal’ with a skeleton staff. No shortcomings in Mr Albu’s work were brought to his attention during that period. No action was taken against him for failing to meet necessary competence or capability standards. Indeed, I find as a fact that at no point during Mr Albu’s employment were capability issues ever formally raised with him. He did however fail a practical assessment for a City & Guilds 2391-52 qualification that he had been asked to undertake by London Underground. This was despite him holding an earlier version of the qualification – the 2391 – dating back to April 2007.[26]In preparation for the transfer, Mr Neil Clark, the Cockfosters Depot Facilities Manager, requested sight of Mr Albu’s qualifications and training records in May 2021. It was this request that set in motion the chain of events that resulted in Mr Albu being dismissed around 21 months later.[27]Mr Albu started work at the Cockfosters depot on 7th June 2021. At this point, Mr Clark reiterated his request for Mr Albu to provide ‘any relevant trade qualifications’ by email. Mr Albu provided his 2391 and 2377 certificates and some other certificates. Mr Clark request was repeated on 7th July 2021, asking for formal copies of the City & Guilds certificates by 21st July 2021. Mr Albu was at this point doing duties presented to him by Mr Clark.[28]Following further email exchanges, Mr Albu was invited to a meeting on 1st October 2021 to provide originals of the certificates and to discuss trade qualifications. Mr Albu attended and submitted originals of his Romanian degree, the 2391, the 7671 and the 2377.[29]Mr Clark was dissatisfied with the documents provided. In an email to Euan Taylor, HR, on 8th October 2021 copied to Miss Lewis, he expressed concerns around suspected irregularities on the certificates. He questioned whether the Romanian degree was UK verified and whether it was in the disciplines required by London Underground for Mr Albu’s post.[30]Miss Lewis and Mr Clark then suspended Mr Albu on full pay from 12th October 2021, whilst the qualifications issue was investigated. The suspension lasted over 6 months, until 25th April 2022. Mr Albu confirmed in cross-examination that he understood he was suspended because his certificates were ‘not good enough’. It took time for enquiries of the awarding bodies to be replied to.[31]During the investigation, it was concluded by Mr Clark that no fraudulent documents had been provided. He confirmed this to Mr Taylor by email on 30th March 2022. I find as a fact that no irregularities were identified by London Underground in respect of Mr Albu’s qualifications. Mr Albu was properly certified as having secured the qualifications he relied on when applying for and being appointed to the Plant Fitter role.[32]London Underground had continuing concerns, however, surrounding Mr Albu’s qualifications to carry out the Plant Fitter role. This was not around whether his paper qualifications were genuine, but whether they were sufficient for the role in question. In particular, Miss Lewis had questions as regards whether the Romanian degree was equivalent to a sufficient trade qualification in the United Kingdom to authorise Mr Albu to perform the work expected of him in the role.[33]At a meeting on 25th April 2022, Miss Lewis explained that enquiries had been made. London Underground and a vetting agent had not been able to ascertain whether the Romanian degree could be converted to City & Guilds or a fully licenced electrician qualification for work in the UK. Mr Albu explained that he felt he was qualified based on his higher degree and experience working on electrical assets in the UK. It was agreed that he would be returned to work on alternate supported duties back at Ruislip, a larger depot, whilst the matter was resolved and the degree was converted into a UK recognised qualification.[34]In an email dated 6th May 2022, Mr Albu provided a NARIC (National Academic Recognition Information Centre) letter dated 14th April 2004. This confirmed the status of the Romanian degree as being comparable to a British Batchelor degree. He also provided a further copy of an expired JIB Gold Card evidencing qualification as an Electrical Fitter. Miss Lewis responded on 20th May 2022 reiterating that there was a need to convert the Romanian degree into a UK accepted diploma.[35]Unbeknown to Miss Lewis, in the meantime on 17th May 2022 Mr Albu also applied to an organisation called XS Training to complete a UK qualification – City & Guilds Level 3 in Electrotechnical Experienced Worker Qualification 2346-03 in Electrical Installation. I shall refer to this qualification as ‘the 2346’.[36]On 9th July 2022, Mr Albu raised concerns about the handling of his situation by Mr Clark and Miss Lewis by email to Andrew Cunningham, Depot Plant and DMU Manager. Mr Cunningham referred the matter on to Mr Taylor in HR. Miss Lewis, copied into the email to Mr Taylor, asked that Mr Albu communicate with his own line managers over his concerns.[37]A further meeting took place on 2nd September 2022 to discuss further information in relation to Mr Albu’s qualifications. At the outset of the meeting Mr Albu asserted that he had the qualifications to do the Plant Fitter job. He presented a ‘Statement of Comparability’ from the United Kingdom National Information Centre for Qualifications and Skills (‘UKENIC’) dated 24th June 2022. This confirmed that the Romanian degree was equivalent to a Batchelor (Honours) degree in Applied Electronics: Engineer, at RQF Level 6. It was confirmed that the Romanian degree was not a City & Guilds equivalent or trade qualification. It did not make Mr Albu a UK paper qualified electrician or a mechanic.[38]Discussion then turned to alternative roles for Mr Albu, with Miss Lewis confirming that ‘The safety implications of not having this qualification to be a Plant Fitter is too great’. Miss Lewis put forwards a Train Maintainer role which could be offered for Mr Albu to be considered for. In evidence Miss Lewis confirmed that the role of the Train Maintainer was different to that of a Plant Fitter. It was more routine, and was performed as part of a team. It did not require fault finding abilities. At the meeting, she confirmed that redeployment could also be considered.[39]Mr Albu told the meeting that he had looked into alternative qualifications and courses. The note of the meeting does not specifically record that he mentioned the 2346 or his booking with XS Training. Miss Lewis expressed caution about the adequacy of the courses on offer. She confirmed that she was reluctant to give more time for retraining. Mr Albu requested further information about the bullying and harassment policy. The process was explained in the meeting.[40]Under Tribunal questioning, Miss Lewis confirmed that Mr Albu’s situation was unprecedented. There was no situation she could refer to where it had been found that an employee was not qualified for the job he had been employed to undertake. There was no specific HR process to follow as it had not happened before.[41]Following the meeting, Miss Lewis emailed Mr Albu on 6th September 2022 with a copy of the relevant policy and procedure to use in respect of bullying and harassment complaints. There is no evidence that Mr Albu used this procedure or lodged any formal complaint under it. Mr Albu accepted under crossexamination that he did not make a formal complaint, explaining that he had lost faith that it was going to be dealt with properly.[42]In addition, following the meeting Miss Lewis made enquiries about alternative qualifications and courses, as raised by Mr Albu. She contacted Mr Shahid Khan, Managing Director of Tesla Technical Training Limited (‘Tesla’). Tesla was London Underground’s preferred training provider. Following a telephone conversation, Mr Khan emailed Miss Lewis on 5th September 2022 to set out his understanding of the 4 potential routes to being recognised as an ‘approved electrician’. The relevant one in this case is the ‘2346 Experienced Worker Route’ – the 2346. This is what Mr Albu had signed up for in May 2022. According to Mr Khan this was for those with verifiable experience and part qualifications. The route required a candidate to present and demonstrate a portfolio of work. In Mr Khan’s view, ‘From experience, I am not sure plant fitters working on the underground would be exposed to the variety of installation jobs required to complete this’. Mr Khan stated that a candidate with a 2346 would also need a 7671 and an AM2S trade qualification.[43]Miss Lewis also stated in her witness statement that she considered the City & Guilds document setting out the requirements for obtaining the 2346, and that she contacted XS Training by telephone to ask for an explanation of the 2346 qualification. I accept this evidence, as it is consistent with the matters discussed at the following meeting on 16th September 2022.[44]In summarising her understanding of qualifications required to be a ‘fully qualified electrician in the UK’, at paragraphs 19 to 21 of her witness statement, Miss Lewis recognised that the 2346 was new, having only been introduced in 2020. She noted that the 2346 was one of the ‘…other ways by which an employee can demonstrate that they are a UK qualified electrician, meeting the industry standards and regulations required to work safely and competently as an electrician in the UK’. She also stated at paragraph 66 that Mr Khan told her that Tesla did not offer the 2346.[45]At a meeting on 16th September 2022 Mr Albu and Miss Lewis had further discussions about the requirements to start the 2346. Miss Lewis noted that ‘The trainer says you need level 1 and 2 so based on that we cannot wait for someone to do a 2-3 year course’. It was proposed that Mr Albu would go onto redeployment based on his qualifications. The Train Maintainer role discussed at the previous meeting was no longer available. Mr Albu asserted that he had enquired with colleges about the 2346. Based on his 10 years’ experience and body of work he said he could do the course in 3 – 8 months in college. Miss Lewis expressed concerns over XS Training, and recommended that Mr Albu should speak to Tesla. She confirmed under cross-examination that she had her own concerns about the timeframes being discussed, based on the 4 years it took people she worked with to obtain the necessary experience and qualifications.[46]Following the meeting, Mr Albu was referred for redeployment support on 30th September 2022. He confirmed in cross-examination that this was a voluntary process. I accept his evidence that he fully engaged with the redeployment team by telephone and text message.[47]During redeployment, dispensation was secured for a late application for the Train Maintainer role discussed previously on 6th October 2022 Mr Albu applied by email on 13th October 2022. He stated that he was not sure that the position would be suitable for him, because ‘…I do have a BEng (Hons) in Electronics and applying for a job where qualifications are not required might well be below the ones I have’. He ultimately withdrew from consideration for this role.[48]Over the course of the following months Mr Albu was referred to around 13 roles in total for application. He was offered a Train Maintainer role at Stratford Market Depot on 20th December 2022. By email dated 4th January 2023 he withdrew from consideration as he did ‘…not see how the Train Maintainer position would be beneficial for my career and I also fail to understand if I could be using my qualifications and experience should I accept it’.[49]In February 2023, with no alternative role having been secured for Mr Albu, Miss Lewis took steps to draw the redeployment process to a close. After a short extension for an outstanding application to be considered, a meeting was arranged for 23rd February 2023. Mr Albu was warned that ‘At the end of redeployment if you have not found alternative, suitable employment your employment at London Underground is terminated’.[50]Meanwhile, on 16th February 2023, Mr Albu emailed Miss Lewis to inform her that ‘…in parallel to the redeployment process I successfully completed C&G 2346, Electrotechnical Experienced Worker NVQ 3’. He had previously emailed the redeployment team on 19th January 2023 to confirm that he had ‘…passed 65% of my NVQ3’. Mr Albu was completing the qualification alongside his usual duties and whilst on redeployment. He was challenged over this in cross-examination. He asserted that he had informed the redeployment team of his retraining. He had been pursuing the 2346 on his own time at his own expense, working at various locations to enable him to complete the portfolio of work he was required to submit. He said that he managed to complete the 2346 in ‘record time’ because he had the experience to complete it.[51]On receipt of the email, Mr Clark and Miss Lewis contacted Mr Khan for further input. Mr Clark questioned whether it would be possible to complete the 2346 in 13 weeks in an email of 16th February 2023. Mr Khan responded that day, expressing that the likely real timeframe was 12-18 months, ‘…with the operative word being an individual who is experienced and not somebody with no formal electrical qualifications!’. Mr Khan also confirmed that a 7671, 2391 and AM2E assessment would be require along with the 2346 ‘…to be deemed an approved electrician’ and ‘…to be eligible to apply for a gold card and be recognised by industry as competent electricians’.[52]At the meeting of 23rd February 2023, it was confirmed that the redeployment process could be extended for 4 weeks to accommodate some more ongoing application outcomes. Mr Albu confirmed that had achieved the 2346. Miss Lewis confirmed her understanding of the need for the additional qualifications (up to date wiring regulations 7671, test and inspect qualification 2391 and the AM2E assessment). Mr Albu was asked if he was saying that he had the electrical qualification. He replied that ‘I am not saying that, I am not saying anything at the moment’. Mr Albu did not provide any certificate or portfolio relating to the 2346 to Miss Lewis for consideration at this point or at all.[53]Mr Albu’s 2346 certificate is dated 24th February 2023. He received his authorisation from XS Training to commence the AM2E assessment, upon completion of the 2346, on 26th February 2023. On 13th March 2023 he received confirmation of his booking to attend the AM2E 2 day assessment centre at Woodford Green on 5th – 7th May 2023. Miss Lewis was not informed about these matters.[54]The final applications for redeployment roles were unsuccessful. On 10th March 2023, Mr Alba was invited to a ‘Case Conference’ meeting. He was warned that consideration would be given to termination of his employment at the meeting. He was given the opportunity to be accompanied by a Trade Union Representative or Colleague.[55]Mr Albu sought postponement of the meeting by email on 15th March 2023. He suggested that he didn’t have enough time to prepare. Miss Lewis wrote to refuse the postponement request shortly afterwards. She noted that Mr Albu had called the previous day to inform her that he had ‘…nothing different or new to share with me and therefore didn’t feel meeting me was going to make much difference’. Miss Lewis accepted in cross-examination that she had not requested that Mr Albu provide his portfolio of evidence for qualifications purposes in advance of the meeting.[56]The meeting went ahead on 16th March 2023. Mr Albu attended with his trade union representative Mr Walsh. They did not request any further postponement of the meeting. Miss Lewis attended with Warren McVeigh of HR and a note taker.[57]At the meeting, the unsuccessful redeployment process was noted. Mr Albu confirmed that he had not pursued the Train Maintainer roles because they were ‘beneath my qualifications’. Under cross-examination Mr Albu said that this was not the only reason for refusing to be considered for such roles. He told the Tribunal that he thought that if he accepted the role without having an apprenticeship or equivalent this would give London Underground a reason to dismiss him.[58]At the meeting, Mr Albu was further questioned about his qualifications. His 2391 qualification was discussed. Miss Lewis asserted that it would have to post-date 2020 because the 2346 was introduced in the year 2020. ‘You did sit an inspect and test a couple of years ago and you failed it with Tesla. This cannot be accepted as part of the 2346 validation. Doesn’t matter how many times we go through it; you are unable to show me the AM2E assessment pass out and gold card’. Mr Albu agreed that he had not completed the AM2E. He did not mention that he was booked to undergo the AM2E assessment. He confirmed that he had a portfolio of work for the 2346 and had been observed by an assessor. He was asked by Miss Lewis to give details of the college that he had done the 2346 with. His answers were not forthcoming on the point – ‘I will need to check’ – before conversation circled back to XS Training who had been discussed previously.[59]Miss Lewis considered the matter and concluded in the meeting that Mr Albu’s employment should be terminated. She referenced safety concerns and the support given during redeployment in applications for alternative roles. She concluded that there was ‘not enough evidence that you are an electrician’.[60]Mr Albu was issued with a letter on 17th March 2023 confirming the outcome of the meeting The reasons for termination of employment were given as follows: You are not qualified to the required standard for the role that you were employed to undertake The options for you becoming qualified, with the required knowledge and experience, to that standard have been explained to you and they are not viable for reasons of time We cannot permit you to continue in that role due to the nature of the role being safety critical in a safety critical environment with health and safety risks for yourself, others and the business being potentially severe You have been in the redeployment pool for 17 weeks during that time you were offered the role of a Fleet Heavy Overhaul Train Maintainer, but you refused it. You were unsuccessful in obtaining any other role. The business is not able to continue to sustain the current situation and therefore has no choice but to dismiss you because you are not able to perform the role you were appointed to because you are not properly qualified for that role, you have rejected other roles that were available to you and that you have not found any position that you felt appropriate for you to accept.[61]I find as facts that, at the time of Mr Albu’s dismissal by Miss Lewis on 16th March 2023:a. Miss Lewis considered that the formal qualifications required for the Plant Fitter role, described in the job advert and job description as ‘minimum of City & Guilds’, were a minimum of City & Guilds Part 1 & 2 or the equivalent;b. Mr Albu did not hold City & Guilds Part 1 & 2 or an equivalent trade qualification based on experience or time served;c. despite being given the Plant Fitter job by London Underground in November 2019, and his experience and capacity to do the electrical work required of him by his employer (evidenced by the absence of any formal capability or other concerns being raised against him during his time in the role), Mr Albu did not at this time have the formal paper qualifications for the Plant Fitter role that London Underground required of him;d. Mr Albu had embarked upon the route of obtaining equivalent experience or time served trade qualifications to City & Guilds Part 1 & 2 by obtaining the 2346 in February 2023. He did not however hold all of the other qualifications required for equivalence, notably the AM2E assessment which he was not scheduled to undertake until May 2023;e. Mr Albu had not presented his 2346 to Miss Lewis for consideration, nor had he informed her that he was due to undertake his AM2E in May 2023.[62]The dismissal letter confirmed Mr Albu’s right of appeal against the decision. He exercised it by email dated 23rd April 2023 with grounds. He raised points in relation to the process adopted, his qualifications for the Plant Fitter role and bullying and harassment. The appeal was referred to Mr Elliott to determine.[63]Mr Albu submitted documents for consideration at the appeal as attachments with his email. These included the qualifications that he had previously put forwards to Miss Lewis – the Romanian degree, the 7671, the 2391 and the 2377. He also included the 2346 that he had not sent to Miss Lewis, and a document described as an ‘ECS (JIB Gold Card) – Approved Electrical Fitter JIB grade’.[64]Subsequent to lodging his appeal, on 7th May 2023 Mr Albu achieved his AM2E: Assessment of Occupational Competence Electrotechnical – ‘the AM2E’. On 22nd May 2023 he received a new ECS JIB Gold Card. This recognised that Mr Albu was a registered approved installation electrician holding the 7671 and the 2391. It is not entirely clear when these documents were submitted for consideration. They could not have been submitted with the appeal, as it was lodged before the documents were available. There is an undated email that contains attachments in the bundle. Mr Albu submitted folders of documents to Mr Elliott on 22nd June 2023 which he asserts in paragraph 148 of his witness statement contained all of the certificates and qualifications evidence.[65]I find as a fact that Mr Elliott was sent these documents to consider before meeting with Mr Albu to discuss the appeal. This was before having his discussions with Mr Khan of Tesla about qualifications that followed the appeal meeting, as Mr Elliott sets out in paragraph 22 of his witness statement.[66]An appeal meeting took place on 26th June 2023. Mr Albu attended with his trade union representative Paul Jackson. Mr Elliott chaired the meeting and was assisted by Mr McVeigh. During the meeting Mr Elliott confirmed that he had seen the AM2E document dated May 2022 and the new JIB Gold Card expiring on 21st September 2025 [503]. Mr Jackson asserted that Mr Albu’s qualifications were higher than City & Guilds 1 and 2. The various other appeal points were explored.[67]Following the meeting, on 5th July 2023 Mr Elliott exchanged emails with Miss Lewis on the issues arising. He also contacted Mr Khan of Tesla to discuss the qualifications issues on a date unknown.[68]There is no note of what was discussed between Mr Elliott and Mr Khan. There is no email following the meeting to confirm what advice Mr Khan gave with regards to qualifications. It is wholly unclear what Mr Khan was presented with by way of Mr Albu’s qualifications documents, what he saw, what was discussed and what he advised. This is very unfortunate. Under cross-examination Mr Elliott quite fairly conceded that he himself was confused over some of the matters relied on in his witness statement and the appeal outcome. He confirmed that the appeal outcome was based on Mr Khan’s advice.[69]In his witness statement at paragraph 20, Mr Elliott stated that he had ‘… a fairly lengthy telephone discussion’ with Mr Khan. Under cross-examination, he stated that he had had 2 discussions with Mr Khan – one lasting 40 minutes, and a second one lasting in the region of 5 – 10 minutes ‘…to clarify my understanding ahead of writing the appeal outcome’. Despite these apparently extensive discussions, there is uncertainty over why Mr Khan advised as he did, in the absence of notes or evidence from him.[70]In addition, Mr Elliott suggested under cross-examination that (contrary to his witness statement) he was ‘quite confident’ that the discussions took place on a Microsoft Teams call, with documents in relation to qualifications being shared on screen. He did however concede that there was a ‘possibility’ that the discussion was on the telephone with document titles being read through for discussion.[71]In his witness statement at paragraph 22, Mr Elliott confirmed that for the purposes of discussions Mr Khan sent him a copy of the Electrotechnical Assessment Specification (EAS) Qualifications Guide. This is a document that sets out guidance on whether a person has acceptable qualifications to be a UK electrician.[72]Mr Elliott was clear under cross-examination that Mr Khan took him through the Guide, and told him that Mr Albu would need to satisfy the requirements under Tables 4C, 4D, 4E and 4F of the Guide to satisfy the experienced workers route requirements. At paragraph 23 of his witness statement, Mr Elliott confirmed that after going through documents with Mr Khan, he concluded that Mr Albu had not evidenced the requirements of Table 4E and 4F. He further confirmed that a JIB Gold Card that listed the holder as having the occupation of ‘Installation or Maintenance Electrician’ could evidence compliance with the requirements of Tables 4B to 4E. If the holder is listed as an ‘Approved Electrician’, that may be sufficient to satisfy Table 4F.[73]As found above, Mr Albu had submitted to the appeal the new JIB Gold Card. This gave his occupation as ‘Installation Electrician, Electrical Fitter, JIB Grade Approved Electrician, Registered Electrician’. He held his 2391 and the AM2E. Mr Elliott accepted under cross-examination that on the face of the Guide Mr Albu satisfied the requirements of Tables 4B to 4F. Mr Elliott’s evidence, however, in paragraphs 24 and 27 of his witness statement and under cross-examination was that he and Mr Khan concluded that the requirements of Table 4E and 4F were not met by Mr Albu.[74]Under cross-examination, Mr Elliott was unable to explain this apparent discrepancy. He could not recall the specifics of why Mr Khan had advised that the Table 4E and 4F requirements was not satisfied by Mr Albu’s 2391. He recalled taking Mr Khan through the Gold Card. Mr Khan made the clear point to him that this was an electrical fitter card, not an electrician card. Mr Elliott could not explain why Mr Khan would have done this if the new Gold Card had been sent. He accepted that on the face of it the requirements were satisfied by the 2391 which was held by Mr Albu in any event.[75]With Mr Elliott being unable to assist the Tribunal on this point, I have no evidence at all as to why Mr Khan rejected Mr Albu’s 2346 and Gold Card as satisfying the Table 4E and 4F requirements. I have not heard evidence from Mr Khan. There is no note or email of the reasons why he took the view he did, or of the advice he gave to Mr Elliott. Tesla did not offer the 2346, which may explain why Mr Khan was not convinced as to whether it was a sufficient qualification. However, I find as facts, in the absence of evidence to the contrary and upon considering the certificates presented in the documents, that the 2346 that Mr Albu was certified as having achieved, along with the AM2E, were recognised and valid qualifications. There is no evidence that XS Training was not a recognised training supplier or that the award of the qualifications to Mr Albu was in any way improper or inadequate.[76]It is however unlikely that Mr Khan would have given the clear advice to Mr Elliott that Mr Albu did not satisfy the Table 4E and 4F requirements if he had seen the May 2023 JIB Gold Card. For this reason, I find as a fact that he did not see it. I consider it likely that when giving his views to Mr Elliott, Mr Khan was presented with, and was referring to, Mr Albu’s expired May 2011 JIB Gold Card. This would have been the only Gold Card available for submission with Mr Albu’s appeal email on 23rd April 2023. I find that the old Gold Card was the one sent in with the appeal. Mr Elliott probably sent the old Gold Card document to Mr Khan, rather than the new one sent in subsequently. This would explain why Mr Khan was clear in his view that the card was an Electrical Fitter card, not an Electrician card. Mr Elliott, however, had the new Gold Card available to him to consider, when discussing the appeal with Mr Albu and subsequently when discussing matters with Mr Khan.[77]I am unable however to say why Mr Khan concluded that Mr Albu did not satisfy the requirements of Table 4E and 4F. The old Gold Card confirmed that Mr Albu possessed his 2391. According to the Qualifications Guide, Mr Albu’s 2391 satisfied both the Table 4E and 4F requirements. No explanation has been given to me in evidence as to why Mr Khan considered the 2391 inadequate in this regard. Mr Elliott makes no reference to any discussions of the 2391 with Mr Khan at all in his witness statement paragraph 23.[78]Following the advice from Mr Khan, Mr Elliott made his decision on the appeal without further reference to Mr Albu. Mr Albu was issued with a letter on 9th August 2023 confirming the outcome of the appeal. Mr Elliott dismissed the appeal. His reasons included the following: As part of my investigation, I spoke with a Subject Matter Expert at ‘Tesla Technical Training Ltd’ to determine whether the above qualifications gave you the necessary credentials to meet the following bullet point listed as ‘essential’ on the Job Description: - Experience in a time served apprenticeship environment: Must hold formal qualifications (minimum of City & Guilds) in an electrical, electronic or mechanical discipline. It is noted that you had not evidenced City & Guilds Part 1 & 2 which would demonstrate evidence of a time served apprenticeship. However, I was advised that an equivalent route is available for experienced workers, and directed to the below guidance document (see Appendix B): Electrotechnical Assessment Specification (EAS) Qualifications Guide -Qualifications Guide for EAS Appendix 4 - Requirements for Qualified Supervisors and persons carrying out Electrical Inspection and Testing – December 2022’ Whilst you have now evidenced the ‘AM2E Assessment of Occupational Competence Electrotechnical’ (achieved in May 2023, after your termination date), you have not evidenced the requirements of Table 4E and Table 4F which are required to support the experienced worker’s route. As such, with the support of the Subject Matter Expert, I concluded that you had not met this requirement of the job description and therefore did not have the required qualifications. Additionally, I also noted the following which compounded my decision: - Your ECS JIB card recognises you as an Approved ‘Electrical Fitter’ and not an Approved ‘Electrician’ Mr Elliott also dismissed Mr Albu’s appeal in relation to unfair process and the allegations of bullying and harassment.[79]I find as facts that at the time of the dismissal of Mr Albu’s appeal by Mr Elliott in the letter of 9th August 2023:a. Mr Albu held, on paper, a valid 2346 and an AM2E. He presented these to Mr Elliott.b. On the face of it, Mr Albu held equivalent qualifications to the City & Guilds Level 1 and 2 required by London Underground for the Plant Fitter role, obtained via the experienced worker route.c. By reference to the new 2023 JIB Gold Card (Installation Electrician, Electrical Fitter, JIB Grade Approved Electrician, Registered Electrician), his 7671, his 2391 and his 2377, Mr Albu had on the face of it satisfied the requirements of Table 4E and 4F to support the experienced worker’s route to qualification. He had presented this Gold Card to Mr Elliott.d. Going back to Mr Khan’s email of 16th February 2023, these qualifications on paper were sufficient ‘…to be deemed an approved electrician’.[80]In view of these findings, there are 2 clearly apparent and unexplained errors in the letter dismissing the appeal – first in relation to satisfying Table 4E and Table 4F, and second in relation to the Gold Card being an Electrical Fitter one rather than an Electrician one.[81]I also find that Mr Albu was presented with rejection of his ‘new’ qualifications (i.e. the 2346 and the AM2E obtained after Miss Lewis had decided to dismiss him), and the decision that they were not good enough to satisfy the job requirements for the Plant Fitter role, for the very first time in the appeal outcome letter. This is because Mr Elliott had not at any point discussed with Mr Albu either Miss Lewis’ observations on the appeal or Mr Khan’s advice on to the qualifications that Mr Albu now held. In particular, Mr Elliott never discussed the EAS Qualification Guide with Mr Albu, or Mr Khan’s assessment of whether the new qualifications satisfied the Table requirements.[82]I find as a matter of fact that at the time of the dismissal of the appeal Mr Albu held qualifications equivalent to those required by London Underground for the Plant Fitter role. I find however that Mr Elliott dismissed Mr Albu’s appeal on the qualifications point because based upon Mr Khan’s advice he believed that Mr Albu did not hold qualifications to satisfy the EAS Qualifications Tables to be a qualified electrician. I accept Mr Elliott’s evidence that he relied on Mr Khan. In turn, I find that Mr Khan’s advice was given on a mistaken basis in part because he could not have considered Mr Albu’s up-to-date JIB Gold Card. E. THE LAW[83]In relation to unfair dismissal, the relevant statutory provisions are s94, 98 Employment Rights Act (‘ERA’) 1996. I have reminded myself of the potentially fair reasons for dismissal under s98(2), and the definition of qualifications under s98(3).[84]Further, in considering the correct approach to s98(4) ERA I have borne in mind the approach set out in Iceland Frozen Food v Jones [1982] IRLR 439 and Post Office v Foley [2000] ICR 1283. I have reminded myself that the role of the Tribunal in an unfair dismissal claim is not to substitute its view for that of a reasonable employer acting reasonably in all the circumstances. I must instead approach s98(4) by assessing the employer’s actions in dismissing an employee by reference to a hypothetical range or band of reasonable conduct and responses open to a reasonable employer in the circumstances. If the dismissal falls within the band, it is fair. If the dismissal falls outside the band, it is unfair.[85]In submissions, representatives for the parties pointed out various authorities in relation to the reason for dismissal. I have considered them all, but note in particular:a. Abernethy v Mott, Hay and Anderson [1974] IRLR 213: a reason for the dismissal of an employee is a set of facts known to the employer, or it may be a set of beliefs held by him, which cause him to dismiss the employee;b. West Midlands Co-Operative Society Limited v Tipton [1986] IRLR 112: when assessing the reasonableness of an employer’s decision to treat a particular reason as a ground for dismissal, the matters which come to the employer’s knowledge through the process of operating an internal procedure must be considered. Account must be taken of information coming to the employer’s knowledge at the hearing of the appeal (see too O’Brien v Bolton St Catherine’s Academy [2017] ICR 737);c. Cobley v Forward Technology Industries plc [2003] ICR 1056: identification of the reason for dismissal does not require consideration of the fairness of the dismissal, which falls to be considered under s98(4) rather than at the prior stage of identifying the reason for dismissal.[86]On contributory conduct, the relevant statutory provisions are s122(2), 123(6) ERA 1996. I have reminded myself of the principles behind a finding of contributory fault and reductions to compensation set out in Optikinetics Ltd v Whooley [1999] ICR 984 and Steen v ASP Packaging Ltd [2014] ICR 56. I note that for a finding of contribution an employee must be found guilty of culpable or blameworthy conduct. This conduct must be known to the employer at the time of the dismissal and must have been a cause of the dismissal.[87]In relation to any alleged failure to comply with a relevant ACAS Code, I have reminded myself of the provisions of s207A Trade Union & Labour Relations (Consolidation) Act 1992. F. THE ISSUES[88]It is not in dispute that Mr Albu was an employee of London Underground who was dismissed effective on 17th March 2023. In line with the case management order, the issues that I must determine are as follows:a. What was the reason or principal reason for Mr Albu’s dismissal? London Underground says the reason was capability (qualifications) or some other substantial reason. That substantial reason is said to be that Mr Albu was dismissed because he could not demonstrate he was an approved electrician, and that he had the necessary formal qualifications as reasonably required by London Underground in order to undertake the DMU Plant Fitter role. The burden is on London Underground to establish a potentially fair reason for dismissal.b. If the reason was capability, or indeed some other substantial reason, did London Underground act reasonably or unreasonably in all the circumstances of the case, including their size and administrative resources, in treating that as a sufficient reason for dismissal? EJ Partington’s order notes that 9 matters that the Tribunal will consider in this regard. I shall consider them below, in no particular order.c. Is there a chance that Mr Albu would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason – and if so, should his compensation be reduced? This is the so-called ‘no difference’ or Polkey rule;d. If Mr Albu was unfairly dismissed, would it be just and equitable to reduce any compensatory award on the basis that he caused or contributed to his own dismissal by his own blameworthy conduct? If so by how much?e. Did the ACAS Code on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant? If so by what proportion? G. THE TRIBUNAL’S CONCLUSIONS ON THE ISSUES a. The reason for dismissal[89]Based on the evidence of Miss Lewis and Mr Elliott, taken with the letter of dismissal and the letter dismissing Mr Albu’s appeal, in my judgment London Underground has established that the reason for Mr Albu’s decision was capability (qualifications).[90]At the heart of the decisions by Miss Lewis and Mr Elliott, and indeed the very reason why events behind this claim began to unfold from May 2021 when Mr Clark was actioning Mr Albu’s transfer to the Cockfosters depot, were Mr Albu’s formal paper qualifications. In my judgment, the principal reason for dismissal was Mr Albu’s lack of qualifications. Had he held formal City & Guilds level 1 and 2 qualifications, or equivalent, on paper, and presented them to Mr Clark on request or Miss Lewis at the dismissal meeting, he is unlikely to have experienced any difficulties when transferring to Cockfosters at all. It is not of course in dispute that Mr Albu never held those specific qualifications on paper.[91]The belief held by Miss Lewis when terminating Mr Albu’s employment, and Mr Elliott when dismissing his appeal, was that Mr Albu lacked the necessary formal qualifications to undertake the role he had been employed to do. I accept the evidence of these witnesses on the point. This was the principal reason for Mr Albu’s dismissal.[92]I reject any suggestion that the decision made by Miss Lewis, or the dismissal of the appeal by Mr Elliott, was in any way motivated by animus or ill-will towards Mr Albu. In my judgment, this would run contrary to the facts I have found in relation to attempts to find Mr Albu alternative employment and a role to avoid his dismissal. Nothing in the records of any meetings between Mr Albu and Miss Lewis suggests that there was ill-will on her part. Miss Lewis put forward the Train Maintainer role option in September 2022. Miss Lewis extended the conclusion of the redeployment process to allow applications to be considered. Mr Elliott was an independent manager appointed to hear the appeal. All of these matters are inconsistent with there being any reason for dismissal related to animosity towards Mr Albu. I do not find that any emails referred to by Mr Albu’s representative in submissions are sufficient to cause me to depart from my conclusions based on Miss Lewis and Mr Elliott’s evidence as to the reason why they dismissed Mr Albu. b. Did London Underground act reasonably in all the circumstances in treating the reason for dismissal as a sufficient reason to dismiss Mr Albu?[93]I will address the issues highlighted in the list of issues and drawn to my attention by the parties in their submissions, insofar as I consider them to be relevant, as follows.94. 1.5.1 - Whether London Underground acted reasonably in suspending Mr Albu for 6 months. I find that the suspension was reasonable, was not part of any dismissal process and was unrelated to the reason for dismissal. Mr Albu accepted under cross-examination that he understood that the suspension was because his certificates ‘were not good enough’. He also accepted that it took time for London Underground to hear back from third parties including City & Guilds in relation to the certificates. In my judgment a reasonable employer is entitled to suspend an employee on full pay for investigations to be carried out if it suspects irregularities in the qualifications presented to secure a job role. This is particularly so where the qualifications relate to safety critical aspects of the employee’s ability to perform a job role. Further, in my judgment the duration of the suspension was not unreasonable as London Underground had no option but to await confirmation from third parties as to the status of the certificates in question.95. 1.5.3 - Whether London Underground can show that the role required an approved electrician, and that requirement was communicated to Mr Albu at a reasonable time prior to dismissal. In my judgment, London Underground was reasonably entitled to require Mr Albu to hold approved electrician qualifications to perform the Plant Fitter role. It is unfortunate that the job advert and description did not clearly set out requirements for ‘…minimum of City & Guilds Part 1 & 2’. In my judgment however an employer is reasonably entitled to set the standards for qualifications of its workforce as it sees fit, particularly where technical and safety critical matters are concerned as here. Regardless of whether the advert or job description included the additional words ‘…Part 1 & 2’ or not, London Underground were reasonably entitled to interpret it that way and insist on that requirement for those in Plant Fitter roles.96. 1.5.5 - Whether London Underground adequately warned Mr Albu and gave him a chance to improve prior to his dismissal, and 1.5.8 - Whether London Underground supported Mr Albu in requalifying as an approved electrician. In my judgment, the process adopted by London Underground was reasonable, and gave Mr Albu a fair opportunity to improve and demonstrate necessary qualifications for his role over the course of at least 10 months from April 2022 prior to dismissal.[97]Mr Albu knew from correspondence and meetings that his continued employment was at risk because his formal paper qualifications did not meet London Underground’s requirement for the Plant Fitter role. He knew that he needed equivalent or additional qualifications from this point, and enrolled on a course to obtain them in May 2022. By the time of dismissal of his appeal in August 2023 he had obtained the equivalent qualifications.[98]In respect of support and improvement I find that the process adopted by Miss Lewis to address the situation was a reasonable one in the absence of a formal procedure to fall back on in the unusual circumstances of Mr Albu’s case. It was similar to the approach a reasonable employer might take in any capability situation involving competence of an employee. It was of a reasonable duration. It was reasonable that Miss Lewis oversaw the process as being the Depot Maintenance Unit Area Manager. As I have already found, her conduct was not motivated by animus or ill-will towards Mr Albu.[99]Further, in my judgment, London Underground were not reasonably required to offer any additional support to Mr Albu with retraining to satisfy the basic qualification requirements of his role. There is no evidence that Mr Albu asked for any support or for assistance in arranging his portfolio assessments. It is to his credit that he did these on his own initiative. Miss Lewis was not told that he was undertaking the 2346 until it was completed. In my judgment, a reasonable employer would be entitled in the circumstances to look at redeployment rather than retraining to address the apparent lack of formal qualification of an employee for the role they were employed in.100. 1.5.9 - Whether London Underground reasonably considered alternative employment for Mr Albu. Mr Albu was able to apply for numerous roles appropriate to his qualifications as they stood at that time during the redeployment process that lasted a little over 5 months. He was offered Train Maintainer roles which he declined. In my judgment, the process adopted gave a more than adequate and reasonable opportunity for Mr Albu to take up alternative employment.101. 1.5.6 - Whether London Underground treated Mr Albu consistently compared with other colleagues doing the same role and where they were required to have the same qualifications. The same qualification requirements were required pursuant to the job description of all London Underground employees in the Plant Fitter role. London Underground did not apply a different qualification requirement to Mr Albu. Consistent treatment of qualifications was in the circumstances here a reasonable approach.102. 1.5.2 - Whether Mr Albu was ‘an approved electrician with a formal qualification from City & Guilds’ as required by London Underground, and 1.5.4 - whether London Underground adequately considered all the qualifications held by Mr Albu at the time of his dismissal and at the dismissal appeal stage – Mr Albu’s qualifications. Based on my findings above, Mr Albu did not have the formal qualifications reasonably required by London Underground for the Plant Fitter role at the time of his dismissal by Miss Lewis. Miss Lewis expressly relied in the dismissal meeting on the fact that Mr Albu did not have an AM2E and a Gold Card. But by the time of the appeal, he had the AM2E and a new Gold Card. He had the additional formal qualifications which were equivalent to those required for the role in line with London Underground’s interpretation of the job description requirements.[103]In my judgment, in the circumstances as they stood at the time of the rejection of the appeal against dismissal, no reasonable employer could fairly dismiss Mr Albu for lacking the required qualifications. London Underground failed to adequately consider all of Mr Albu’s qualifications at the time of the appeal, including the new qualifications he had obtained since the dismissal decision. Pursuant to West Midlands Co-Operative Society Limited v Tipton (above) it was obliged to consider these new matters at the appeal stage.[104]Mr Elliott knew that Mr Albu had a new 2023 JIB Gold Card (Installation Electrician, Electrical Fitter, JIB Grade Approved Electrician, Registered Electrician), a 7671, a 2391 and a 2377. He had seen the Gold Card. He either failed to share that new Gold Card with Mr Khan, or allowed Mr Khan to be mistaken on the status of the Gold Card, so that Mr Khan’s advice to him was erroneous. This may have been inadvertent, but why he did this is irrelevant. It was in my judgment incumbent on Mr Elliott, who was the manager appointed to deal with the appeal, to check the accuracy of the reasons he gave to dismiss the appeal. He clearly failed to do so, in particular in relation to the Gold Card. The assertion in the appeal outcome that ‘..I also noted the following which compounded my decision- Your ECS JIB card recognises you as an Approved ‘Electrical Fitter’ and not an Approved ‘Electrician’’ – was plainly wrong. In my judgment, Mr Elliott cannot reasonably rely upon any mistake by Mr Khan to justify as reasonable his own obvious error.[105]Further, in my judgment, it was unreasonable and unfair for Mr Elliott to rely on Mr Khan’s advice when dismissing the appeal without putting it back to Mr Albu for his comments. Mr Elliott never went through Mr Khan’s advice or evidence with Mr Albu. It was unreasonable for Mr Elliott to rely on Mr Khan’s rejection of Mr Albu’s other qualifications, in particular the ‘new’ ones obtained since Miss Lewis had dismissed him, without giving Mr Albu the opportunity to challenge these points.[106]In my judgment, basic natural justice requires that an employee be given the opportunity to consider and respond to the information presented against him before a decision is confirmed. Mr Albu was denied the chance to address the reasons given by Mr Khan that ultimately formed the basis upon which his appeal was dismissed. The appeal outcome, without explanation, was on the face of it wrong in 2 important respects – satisfying the Table 4E and 4F requirements, and the status of the Gold Card. Mr Albu would not have had any idea that these apparent errors would be reasons being considered as the basis on which to dismiss his appeal until he received the outcome. They were never discussed with him. In my judgment, this is unfair. No reasonable employer adopting a reasonable dismissal process could properly reject an appeal against dismissal based on relevant new information in this way. 107. 1.5.7 – Range of reasonable responses and conclusions. Overall, considering the equity and substantial merits of the case, I find that Mr Albu was unfairly dismissed. No reasonable employer could treat capability/qualifications as a sufficient reason to dismiss Mr Albu in all the circumstances of this case, where on the face of it by the time of his appeal he had presented equivalent qualifications sufficient to meet London Underground’s interpretation of the requirements of the job description for the role he was employed in, and without giving Mr Albu the opportunity to respond to the advice that his newly acquired equivalent qualifications were still inadequate. For these reasons, in my judgment and in the circumstances of this case, dismissal fell outside the range of reasonable responses open to a reasonable employer. c. Is there a chance that Mr Albu would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason – and if so, should his compensation be reduced?[108]There must in my judgment be a significant chance that had Mr Khan’s rejection of the JIB Gold Card as an ‘Electrical Fitter’ card been put to Mr Albu, he would have pointed out the error in that his new Gold Card left him more qualified and satisfied the Table 4E and 4F requirements. I am without evidence at present, however, as to what might have transpired had Mr Khan been presented with accurate facts. I have no evidence from Mr Khan or indeed any witness as to whether, notwithstanding that they appeared to satisfy the Guide requirements, Mr Albu’s qualifications were in fact adequate to meet London Underground’s requirements for a Plant Fitter role. Mr Albu did not present his portfolio for consideration by Mr Khan or London Underground, and has not presented it in evidence here. The Tribunal may not of course be placed to make such an assessment in any event.[109]I will invite further submissions from the parties as to how they argue that my findings of fact and the elements of unfairness that I have identified above should be applied when considering the Polkey/no difference points. This will now form an issue for me to decide at the remedy hearing. It may be that in evidence the parties look to address this point. Whether or not Mr Albu is now formally qualified for a Plant Fitter role, and London Underground’s view on his qualifications as they stand now, could also affect any decision on re-engagement or re-instatement as a remedy if the Tribunal is still invited to consider such matters. d. Contributory fault[110]London Underground submitted that Mr Albu should bear some contributory fault for failing to provide relevant documents and being obstructive during the process. I have found that he did not disclose to Miss Lewis that he was undertaking his 2346 until he had completed it. Whilst this may have affected the conduct of the process, it was not however a cause of the dismissal. Mr Albu was dismissed after he told Miss Lewis he held the 2346. He disclosed all relevant information to Mr Elliott. He was not obstructive during the appeal process. Absence of formal qualifications was the reason for the dismissal and for rejection of his appeal. I do not find that any culpable or blameworthy conduct by Mr Albu caused or contributed to his dismissal for that reason. e. ACAS Code[111]The ACAS Code of Practice on Disciplinary and Grievance Procedures (2015) applies to disciplinary and grievance situations in the workplace. In my judgment, the process that resulted in Mr Albu’s dismissal was neither a disciplinary or grievance situation. Mr Albu did not lodge a formal grievance at any point. There was no allegation of poor performance against him. He was not disciplined.[112]In my judgment this is not a case concerning a matter to which a relevant Code of Practice applies under s207A Trade Union & Labour Relations (Consolidation) Act 1992. There is no basis upon which an uplift to compensation can be considered. H.
Conclusions
[113]For the reasons given above I find that Mr Albu was unfairly dismissed by London Underground. Mr Albu did not cause or contribute to his dismissal, and no relevant ACAS Code applied to his dismissal. I remain open to further submissions at the remedy hearing as to whether the unfairness in relation to the dismissal that I have found made any difference to the outcome of the dismissal process. The case management directions that I gave on a provisional basis will now take effect, for a remedy hearing to take place as directed. Approved by:[114]Employment Rights Act 1996 is refused. 2. The Claimant’s application for an order for re-engagement pursuant to section 115 of the Employment Rights Act 1996 is refused. 3. It is just and equitable to reduce the Claimant’s compensatory award pursuant to section 123 of the Employment Rights Act 1996 by 100% to reflect the likelihood that the Claimant would have been dismissed in any event on the basis of the Polkey/no difference rule.[1]By reserved judgment with reasons sent to the parties on 24 April 2025 Mr Albu’s complaint of unfair dismissal was upheld.[2]The claim was listed for a remedy hearing on 17 September 2025. Mr Albu attended to give evidence. He was again represented by Ms Hindley of the Free Representation Unit. London Underground was again represented by Ms Whittington of Counsel. Miss Janine Lewis, Depot Maintenance Unit Area Manager, Mr Simon Reynolds, Principal Engineering Leader, Mr Ademola Owoeye, Principal Engineering Leader – Building Services and Mr Ian Rosevear, Technical Manager – High Voltage Power attended as witnesses. B. Preliminary matters[3]At the start of the hearing, the Claimant confirmed that he sought an order for reinstatement or re-engagement as his primary remedy. Following a discussion as to the scope of the remaining issues and the evidence, I case managed to hear the witness evidence in relation to reinstatement/re-engagement and the Polkey/no difference rule in the 1 day available to the Tribunal for the hearing. I reserved judgment and have subsequently received written submissions on these issues pursuant to further case management orders. Any remaining issues of quantification of compensation following this judgment will be dealt with at a further final hearing that has been listed. C. The Evidence and the Documentation[4]I was provided with an agreed bundle of documents for the remedy hearing running to 370 pages. This was in addition to the original 751 page bundle provided for the liability hearing. I also received witness statements on remedy from the witnesses referred to above. I read and considered the statements and the documents they referred to before the hearing started.[5]I heard oral evidence from Mr Rosevear, Mr Reynolds, Mr Owoeye, Miss Lewis and Mr Albu on oath and affirmation. All witnesses confirmed that the witness statements that they had submitted were true. I took this evidence as their evidence in chief. The witnesses were then questioned. D. The Tribunal’s Findings of Fact[6]I make the following findings of fact based on the documentary and witness evidence. I apply the civil standard of proof, namely on the balance of probabilities, considering in relation to matters in dispute what likely happened. I have confined these findings as far as possible to matters that are relevant to the legal issues that must be determined at this hearing.[7]I adopt and rely on the findings of fact I made in my previous judgment on liability in relation to the circumstances behind this dispute, leading to Mr Albu’s dismissal on 17 March 2023. I note in particular the following matters:a. Paragraph 22 – upon initial appointment to the Plant Fitter role, Mr Albu did not hold formal qualifications minimum City & Guilds Part 1 & 2 in an electrical or mechanical discipline, as required in the relevant job description at that time;b. Paragraphs 32-38 – Miss Lewis’ concerns around Mr Albu’s qualifications for the role of Plant Fitter as discussed in April – September 2022 related to safety implications;c. Paragraphs 39, 42-45 – Miss Lewis had reservations about the adequacy of some 2346 courses, which were shared by Mr Khan when he was asked about the 2346 Experienced Worker Route;d. Paragraph 51 – in an email of 16 February 2023, Mr Khan expressed scepticism about whether Mr Albu could have completed a 2346 qualification in just 13 weeks, suggesting that the likely real timeframe was 12-18 months;e. Paragraph 59-60 – Miss Lewis terminated Mr Albu’s employment at a meeting on 16 March 2023 referencing safety concerns and Mr Albu’s qualifications. The letter of dismissal stated explicitly that ‘We cannot permit you to continue in that role due to the nature of the role being safety critical in a safety critical environment with health and safety risks for yourself, others and the business being potentially severe’;f. Paragraphs 67-77 – in relation to Mr Albu’s appeal, Mr Elliott exchanged emails with Miss Lewis in relation to the issues arising, and took advice from Mr Khan about the adequacy of Mr Albu’s paper qualifications, in error presenting Mr Khan with Mr Albu’s expired May 2011 JIB Gold Card;g. Paragraph 81 – Mr Albu was presented with the rejection of his ‘new’ qualifications, and the decision that they were not good enough to satisfy the job requirements for the Plant Fitter role, for the very first time in the appeal outcome letter. Whether his new 2346 and AM2E qualifications were equivalent to satisfy the City & Guilds Part 1 & 2 in an electrical or mechanical discipline requirements for the role was never discussed with him;h. Paragraph 82 – at the time of the dismissal of his appeal, Mr Albu held qualifications equivalent to those required by London Underground for the Plant Fitter role in line with the job description as it was at that time.[8]I also refer to my observations in paragraphs 108 – 109 of the liability judgment. This Tribunal is still without evidence as to what view Mr Khan takes, or would have taken, in terms of satisfying the Table 4E and 4F requirements if the qualifications obtained by Mr Albu between dismissal and appeal, and his ‘new’ Gold Card, had been accurately presented to him. Mr Khan has not given any evidence at all to this hearing.[9]In addition, Mr Albu’s portfolio, prepared for completion of his 2346 and AM2E qualifications, was still not included in the documents presented to this Tribunal. I was told that this was not disclosed to London Underground until 11 September 2025. This was the week prior to this hearing, and over 2 years after his appeal against dismissal was rejected. I was told that it could not be accessed by London Underground until a few days later. No documents from the portfolio were included in the agreed bundle for the hearing.[10]At this hearing, the Tribunal has however received evidence from Miss Lewis as to what she would have done had she been involved at the appeal stage based on the 2346 and AM2E qualifications. She asserted in her witness statement, and I accept, that since Mr Albu’s dismissal, this ‘Experienced Worker Route’ to qualification has been considered by Power and Electrical (‘P&E’), who own the electrical assets that a Plant Fitter would work on. In September 2024, around a year after the rejection of Mr Albu’s appeal, the Plant Fitter job description was updated to accept the 2346 qualification route, but only where the candidate could demonstrate an additional 2 years of verifiable post-qualification experience. The DMU adopted this requirement in June 2025. It now explicitly forms part of the job description for the Plant Fitter role that Mr Albu occupied prior to his dismissal.[11]In her statement, Miss Lewis speculated that if she had been involved in the appeal ‘It may be that given the circumstances P&E could have brought their decision making regarding the 2346 qualification forward and the decision for acceptance of it made a lot sooner…as it was at the time of appeal, even with the 2346 and AM2E, Mr Albu would not have met the qualification requirements for the role as he lacked the two years of verifiable experience to validate the qualification’.[12]Under cross-examination, Miss Lewis maintained that the 2-year postqualification experience requirement was ‘not arbitrary at all’. She referred to the equivalent experience obtained by someone qualifying by the apprenticeship route. She considered the requirement to be a fair request as a demonstration of some form of competency.[13]Miss Lewis also asserted that Mr Albu had provided in evidence only 1 certificate in relation to the work he has performed following his AM2E qualification in the 2 years following his dismissal. This related to minor works completed on 22 September 2023. She maintained under cross-examination that there was very little evidence as to work undertaken by Mr Albu during those 2 years, save for invoices sent out by his company. There was little evidence as to the actual work he was doing to issue those invoices. Miss Lewis referenced the absence of test sheets, handover documents and electrical certificates. She remarked when questioned about reinstatement that questions remained around Mr Albu’s portfolio, how his qualification was obtained and his lack of demonstrable experience.[14]In relation to work done post-dismissal, Mr Albu’s evidence was that ‘…since starting my company on 12 May 2023 I have been working as both an Electrical Engineer and an Electrician’. He referenced jobs he had undertaken as follows:a. Dalkia Facilities Ltd – work between July and October 2023 as a shift electrical engineer involved in maintaining and repairing electrical installations;b. Cleve Hill Solar Park – work between February and June 2024 as an electrical engineer involving the installation of DC and AC low voltage cables, inverters, substations and adjacent MV transformers;c. Elco Tech Ltd – from June 2023, work for his own company as an electrician for domestic and public clients. Invoices have been produced for work done in June 2023, September 2023, December 2023, March 2024, June 2024, July 2025 and August 2025. This included work for Solution Rail in June 2024.[15]Mr Albu also referred to his efforts to pursue Chartered Engineer status, and a university course at City University that he was undertaking to obtain a Master of Science in Renewable Energy and Power Systems Management qualification.[16]Under cross-examination, Mr Albu accepted that he had not worked the 2 years following his dismissal fully as an electrician. He stated that he had worked as an engineer at times, covering the role of an electrician. He accepted that it was for his employer to determine the requirements for any role. He maintained that he now satisfied the 2 years post-qualification experience working as an electrician required by the new, 2025 revised Plant Fitter job description for a candidate presenting with the Experienced Worker Route Qualification.[17]In summary, Miss Lewis was of the view, in relation to the post-dismissal work demonstrated by Mr Albu in his disclosure, that ‘The documentation provided by Mr Albu lacks sufficient detail and evidence to demonstrate the required level of experience and competence‘. I agree with that assessment. In my judgment, Mr Albu’s evidence is not comprehensive or complete. There are clearly missing invoices. There are gaps in the work history. There is no work diary or CV. There is limited documentary information to explain or to corroborate Mr Albu’s explanations as to the nature of the work he was undertaking. There are few, if any, technical details and examples from certificates or other documents by reference to which Mr Albu could demonstrate work experience relevant to his suitability for any role with London Underground. It is not possible, from the documents disclosed and the evidence given, to obtain a proper sense of what Mr Albu was doing in relation to work over the entire 2 year period from his dismissal to date.[18]As a result, I find as a fact that at the time of this hearing Mr Albu has not demonstrated that he has 2 years of verifiable post-qualification work experience as an electrician following the obtaining of his paper 2346 and AM2E qualifications in May 2023.[19]Mr Albu put forward in evidence 3 alternative roles that he believed he could undertake in employment with London Underground. These were Control Systems Test Room Inspector, Project Engineer (Band 3) and Engineer (Band 3) E&M. London Underground has provided job descriptions in relation to each of these roles.[20]In the absence of specific challenge, I accept Mr Rosevear’s evidence that the role of Control Systems Test Room Inspector is a highly specialised, safety critical engineering role. Errors in such a role could endanger staff safety, such as by energising a live track section that is believed to be isolated.[21]I accept Mr Rosevear’s analysis of Mr Albu’s qualifications and experience, and his assessment that Mr Albu would be unsuitable for such a role when assessed by reference to the job description. Mr Rosevear highlighted a lack of experience with London Underground High Voltage substations, or high voltage power systems, or control systems, including those used in London Underground substations. He also noted a limited understanding of substation automation protocols, and no relevant experience in commissioning safety critical systems. Mr Albu did not assert through questioning of Mr Rosevear that he had this specific experience. I accept Mr Rosevear’s evidence that the 1-2 years required to provide training of an employee who had not come through the apprentice scheme would not be sustainable in a small team and given the safety critical nature of the role.[22]I also accept Mr Rosevear’s evidence that, during Mr Albu’s redeployment period, he had unsuccessfully applied for a similar Test Room Inspector role. On 6th March 2023, Mr Rosevear provided feedback following an informal discussion about the role. ‘…for this role, there is a lack of knowledge and experience on the High Voltage part of the role which is crucial. This includes a lack of knowledge and experience on HV substations, industrial control systems and the interface between the two’. Whilst he was challenged in cross-examination as to whether Mr Albu’s experience elsewhere since dismissal from London Underground, in particular his work on the solar power project at Cleve Hill, might now satisfy such requirements, he explained that he did not consider such experience relevant to the role. Mr Rosevear maintained his position that Mr Albu was, and remained, unsuitable for recruitment into such a role.[23]In relation to the Project Engineer (Band 3) role, again in the absence of specific challenge I accept Mr Reynolds’ evidence that this is a safety critical role requiring a broad range of technical, regulatory and project management competencies. I accept his analysis of how Mr Albu’s qualifications and experience do not meet up to the requirements of the role set out in the job description. Mr Albu is not an Incorporated or Chartered member of the IET. He does not hold R-0046 accreditation and based on his experience he would be unlikely to pass assessment. He does not have the necessary breadth of multidisciplinary experience. He would not be considered suitable for fail-safe authority and legal accountability. He has not followed a project engineering career pathway.[24]Finally, I accept in the absence of specific challenge Mr Owoeye’s evidence as to the Engineer (Band 3) E&M role, and Mr Albu’s suitability for employment in such a role. I accept Mr Owoeye’s evidence that Mr Albu lacks experience in an electrical design or design assurance engineering role. He does not appear to have working knowledge of industry standards, legislation, or electrical modelling tools. His background does not provide the breadth or depth of engineering experience necessary for independent delivery of the activities required of his role. He does not possess skills required to be competent to work at Band 2 engineering level without supervision. Mr Owoeye maintained in evidence that at Band 3, London Underground would be looking for an employee to deliver work unsupervised on fairly complex activities, with a measure of experience in delivering such work. The extent of Mr Albu’s experience following dismissal from London Underground, for example in relation to Cleve Hill, is not immediately obvious.[25]Overall, I find as facts that Mr Albu’s present level of qualifications and the limited post-qualification experience that he can prove together mean that if he were to apply for such roles now he would be considered unsuitable for recruitment into a DMU Plant Fitter, Control Systems Test Room Inspector, Project Engineer (Band 3) or Engineer (Band 3) E&M role, by reference to the current job descriptions and in line with London Underground’s current requirements for such roles. I also accept as genuine the concerns expressed by the witnesses that the requirements for these roles are influenced by their safety critical nature. E. The Law[26]In relation to orders for reinstatement or re-engagement as a remedy following a finding of unfair dismissal, the relevant statutory provisions are s112 – s117 Employment Rights Act (‘ERA’) 1996. In particular, s116(1)-(3) provide that when considering such orders the Tribunal must in take into account:a. whether the claimant wishes to be reinstated/re-engaged,b. whether it is practicable for the employer to comply with such an order andc. whether the claimant caused or contributed to his dismissal.[27]When considering whether I should make either of these remedy orders, I have borne in mind the following principles from the case law:a. Coleman and Stephenson v Magnet Joinery Ltd [1974] IRLR 343, EAT: when deciding whether it is practicable to make a re-employment order, the Tribunal must consider whether, having regard to the employment relations realities of the situation, such an order is not merely possible, but is capable of being carried into effect with success;b. King v Royal Bank of Canada [2012] IRLR 280, EAT: the Tribunal should consider the issue of practicability of re-employment orders at the time of the remedies hearing;c. Lincolnshire County Council v Lupton [2016] IRLR 576, EAT: there is no statutory presumption of practicability that an employer is required to displace. An employer does not necessarily have a duty to create space for a dismissed employee to be re-engaged;d. Davies v DL Insurance Services Ltd [2020] IRLR 490, EAT: the fact that the employee might need additional training, or was not the best candidate for the roles available, was not necessarily a bar to re-engagement;e. Kelly v PGA European Tour [2021] IRLR 575, EAT: i. In considering whether it is practicable to order re-engagement in a case where the employer asserts that the claimant lacked the ability to perform the required role, the question is whether the employer genuinely believes that, if re-engaged, the employee would not be able to perform the role to the requisite standards and whether that belief is based on rational grounds; ii. Where a particular requirement is genuinely designated as essential to a particular job, and the claimant plainly does not meet it, it would usually be wrong for the Tribunal, based on its own view, to hold that re-engagement to the role is nevertheless practicable.[28]On the issue of the ‘no difference’ rule in relation to reductions to compensation, I have reminded myself of the principle in Polkey v AE Dayton Services Ltd [1987] IRLR 50, HL. An award of compensation for unfair dismissal can be reduced on a ‘just and equitable’ basis under s123(1) ERA 1996 to reflect the chance that an employee would have been dismissed fairly in any event in the absence of the unfairness found.[29]Once again, I have reflected on and borne in mind the principles evident from the case law where the Polkey issue has been discussed. I have considered in particular the following cases and propositions:a. Britool Ltd v Roberts [1993] IRLR 481, EAT: the burden of proving that an employee would have been dismissed in any event was on the employer. While it is for the employee to show what loss was suffered as a result of the dismissal, the burden is not great as there is an assumed loss following an unfair dismissal. So long as an employee can put forward an arguable case that he or she would have been retained were it not for the unfair procedure, the evidential burden shifts to the employer to show that the dismissal might have occurred even if a correct procedure had been followed;b. King v Eaton Ltd (No2) [1998] IRLR 686, Ct of Sess (Inner House): the determination of this issue is one of impression and judgment, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that a procedural failure makes no difference, or whether the failure was such that the tribunal cannot sensibly reconstruct the world as it might have been;c. O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615, CA: if the facts are such that a tribunal, whilst finding that an employee has been dismissed unfairly, whether substantively or procedurally, concludes that, but for the dismissal, the employee would be bound soon thereafter to be dismissed (fairly) by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis;d. Software 2000 Ltd v Andrews [2007] IRLR 568, EAT: i. In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal; ii. If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future); iii. However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made; iv. Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence. v. Having considered the evidence, the tribunal may determine: 1. that if fair procedures had been complied with, the employer has satisfied it (the onus being firmly on the employer) that on the balance of probabilities the dismissal would have occurred when it did in any event; 2. that there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly; 3. that employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself; 4. that employment would have continued indefinitely. However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored.e. Hill v Governing Body of Great Tey Primary School [2013] ICR 691, EAT: the question of a Polkey reduction requires a tribunal to consider both whether the employer could have dismissed fairly and whether it would have done so. The enquiry is directed at what the particular employer before the tribunal would have done, not what a hypothetical fair employer would have done.f. F. The Issues[30]In line with my case management rulings at the commencement of the remedy hearing, the issues that I must determine in this judgment are as follows:a. Should the Tribunal order reinstatement?b. Should the Tribunal order re-engagement? If so, what should the terms of the re-engagement order be?c. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason – and if so, should his compensation be reduced?[31]I remind myself that in my previous liability judgment I did not find that any culpable or blameworthy conduct by Mr Albu caused or contributed to his dismissal for absence of formal qualifications. G. The Tribunal’s Conclusions on the Issues a. Reinstatement[32]For Mr Albu it is submitted that he wishes to be reinstated. He would step down from the running of his own company if he was reinstated. There is no evidence of a breakdown in trust and confidence between the parties. He could work elsewhere in the Respondent’s DMU department, under a different Line Manager and Area Manager. Mr Albu submits that he satisfied the formal qualification requirements at the time of the dismissal of his appeal. He submits that he satisfies the revised requirements of the Plant Fitter role, as he has ‘…been using his electrician qualification to work in the electrotechnical industry since June 2023’. The role is substantively the same as the one he completed competently prior to his dismissal, where he was able to complete his duties. Even if it is found that he lacks a required qualification, he has proven able to suitably perform his role, so should be reinstated even if some retraining is found to be necessary: Davies v DL Insurance (above).[33]On behalf of London Underground, it is submitted that Mr Albu does not meet the essential requirements for reinstatement to the role of Plant Fitter under the job description of June 2025. There is an essential requirement for the role of 2 years post-qualification experience after completion of training. This is based on an assessment of the need for a level of expertise and experience due to the safety critical aspects of the role. An updated job description was introduced following Mr Albu’s dismissal once Miss Lewis became aware of the Experienced Worker Route to qualification. Mr Albu does not have the requisite experience and cannot demonstrate it. London Underground has remaining genuine concerns regarding the sufficiency of Mr Albu’s qualifications for the role of Plant Fitter. If Mr Albu was reinstated there would be significant difficulties in ensuring supervision.[34]Having considered these submissions, and by applying the law to the facts as I have found them above, I refuse Mr Albu’s application for an order for reinstatement. Whilst Mr Albu did not contribute to his dismissal, and wishes to be reinstated, in my judgment it is not practicable for London Underground to comply with such an order, for the following reasons.[35]I must make my assessment of practicability at the time of the hearing. Currently, the essential requirements for the Plant Fitter role require 2 years of relevant experience working as an electrician after completion of training. This is a rational requirement that has been arrived at by London Underground following consideration of the safety critical aspects of the Plant Fitter role and the expertise required to perform it.[36]I accept that London Underground, and Miss Lewis in particular, has genuine concerns about the adequacy of Mr Albu’s qualifications and experience for the Plant Fitter role, notwithstanding the qualifications acquired following his dismissal but before his appeal was concluded. I accept that Miss Lewis has genuine concerns about the Claimant’s ability to fulfil the role of Plant Fitter. I find that Mr Albu cannot demonstrate 2 years of verifiable post-qualification work experience as an electrician following the obtaining of his paper 2346 and AM2E qualifications in May 2023.[37]On this basis Mr Albu does not meet a genuine safety critical requirement for the Plant Fitter role. I do not therefore consider that a reinstatement order is capable of being carried into effect with success. It would be wrong in such circumstances for this Tribunal to hold that reinstatement is practicable, and impose upon London Underground an employee that it has genuinely concluded cannot satisfactorily demonstrate a requirement for experience that has been deemed necessary in the interests of safety. London Underground should not, in my judgment, be required by this Tribunal to put up with a potentially extremely unsafe system of work and state of affairs by being compelled to reinstate Mr Albu to a role that, based on genuine and properly adopted role requirements, he cannot prove that he is suitable for. b. Re-engagement[38]For Mr Albu, similar submissions are made in respect of re-engagement as are made for reinstatement. It is said that Mr Albu has the qualifications and suitability for the 3 roles he has identified in evidence as suitable alternatives, as required by the job descriptions. A need for retraining is no bar to an order.[39]London Underground submits that all 3 managers have considered his qualifications and consider that Mr Albu did not have the necessary qualifications or experience for the 3 roles identified.[40]I refuse Mr Albu’s application for a re-engagement order. Based on the submissions, the evidence and the law, I conclude that it is not practicable for London Underground to comply with such an order. My reasons are similar to those in respect of the reinstatement order above. I accept the evidence of Mr Reynolds, Mr Owoeye and Mr Rosevear that Mr Albu lacks the necessary experience or qualifications for the roles identified as set out in the respective job descriptions. I accept their evidence on the essential requirements and necessary qualifications for the roles as being genuine and rational. I approach my assessment not by deciding whether Mr Albu could potentially fulfil such roles, but by deciding whether it is practicable to require London Underground to re-engage him in such roles where he does not fulfil the requirements for an applicant for such a role. In my judgment, it is not, given the safety critical nature of the roles and regardless of any training that might be proposed. The time it would take for such training or experience to be acquired makes it not practicable to require London Underground to re-engage Mr Albu subject to retraining.[41]Further, in my judgment it would not be practicable for this Tribunal to ‘construct’ a role for Mr Albu to perform without evidence that such a role exists, and impose such a situation upon London Underground where the evidence is that Mr Albu genuinely does not meet the requirements for the proposed roles he has identified. c. Is there a chance that Mr Albu would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason – and if so, should his compensation be reduced?[42]On behalf of Mr Albu, it is submitted that no Polkey deduction should be applied, because if a fair process had been followed his appeal against dismissal would not have been rejected, and Mr Albu would not have been dismissed for any other reason at some point thereafter. On the other hand, London Underground contends for a 100% Polkey reduction to compensation, on the basis that if it had been found that Mr Albu had the requisite qualifications at the time of the appeal, the dismissal would have been upheld in any event. Steps would have been taken at that time to introduce the 2 years verifiable post-qualification experience requirement for Plant Fitters that was ultimately introduced in September 2024 and adopted by the DMU in June 2025.[43]On this issue, the starting point is that Mr Albu’s dismissal was unfair, pursuant to my previous liability decision, because London Underground based the dismissal of his appeal against dismissal on his lack of capability/qualifications. This was by reference explicitly to his paper qualifications. No reasonable employer could treat that as a sufficient reason to dismiss when, at the time of the appeal, his paper qualifications were on the face of it sufficient, and without giving him the opportunity to respond to Mr Khan’s advice that his newly obtained qualifications by the time of the appeal were still inadequate.[44]In my judgment, therefore, in approaching the ‘no difference’ exercise I must consider what is likely to have happened had Mr Khan been properly appraised of Mr Albu’s paper qualifications, in circumstances where Mr Albu was able to challenge and point out on appeal to Mr Elliott that Mr Khan’s previous advice as to the sufficiency of the paper qualifications was wrong.[45]Absent any evidence to the contrary from Mr Khan, I conclude that if he had been presented by Mr Elliott with the new Gold Card and Mr Albu’s AM2E (as he ought have been if Mr Albu had been given the opportunity to challenge Mr Khan’s advice), Mr Khan is likely to have revisited his position. Based on my reading of the Tables 4E and 4F, and in line with my previous findings, Mr Khan is likely to have advised Mr Elliott that Mr Albu’s paper qualifications were in fact equivalent to the City & Guilds Part 1 & 2 required in the version of the Plant Fitter job description applicable at that time. In my judgment it is likely that Mr Khan would have advised that Mr Albu’s new qualifications were on paper sufficient for the role, as they met the Plant Fitter job description requirements at that time.[46]Faced with such advice, it is in my judgment unlikely that Mr Elliott would have dismissed Mr Albu’s appeal for the reasons given at the time in his outcome letter. Because Mr Albu met the Plant Fitter job description requirements in terms of paper qualifications, the reasons for dismissal upheld by Mr Elliottt in the appeal letter would no longer be made out.[47]It would however in my judgment be overly simplistic to go on to find that Mr Albu’s appeal would have been successful, and that he would have remained in employment indefinitely thereafter. If I were to do this, I would fail to engage with Miss Lewis’ clear evidence on Mr Albu’s unsuitability to continue in the Plant Fitter role, for reasons of his experience and qualifications to carry out such a role quite apart from his paper qualifications. This is not a case where I consider that seeking to reconstruct what might have been by considering this evidence is so riddled with uncertainty that no sensible prediction can properly be made. It is a case where the evidence, in particular in relation to Miss Lewis’ views about whether Mr Albu was suitably qualified and experienced to remain in employment, is not so scant that it can be ignored. On the contrary, in my judgment Miss Lewis’ evidence is of substance. I am bound to account for it when assessing what is likely to have happened in the absence of any unfairness in Mr Albu’s appeal against his dismissal.[48]Although Mr Albu had, unbeknown to Miss Lewis, achieved the paper qualifications by the time of the appeal, I accept Miss Lewis’ evidence as to her concerns about the adequacy and validity of the Experienced Worker Route qualification generally. She expressed those concerns in clear terms prior to the dismissal, to Mr Albu in meetings and in email exchanges with Mr Khan. In my judgment, it is unlikely that she would simply have set aside these concerns, even if Mr Khan had been asked to consider the new Gold Card and Mr Albu’s 2346 and AM2E paperwork and had reported that they were equivalent to City & Guilds Part 1 & 2 on paper.[49]In my judgment, it is likely that Miss Lewis, as Mr Albu’s line manager, would inevitably have had remaining concerns about Mr Albu’s suitability for the Plant Fitter role, based on his lack of experience. Even if he was technically and on paper now ‘qualified’ by reference to the 2346 and the AM2E, Mr Albu would still not have had the level of experience that Miss Lewis would expect of a Plant Fitter to be able to fulfil a safety critical role independently and without supervision. Miss Lewis is likely to have had remaining concerns about the adequacy of the Experienced Worker Route qualification obtained by Mr Albu. These are concerns that she expressed more than once in her evidence, and which I accept as genuine. She is also unlikely to have had access to Mr Albu’s portfolio, given that he did not provide access to it until September 2025.[50]The fact that the 2 year post-qualification experience requirement was implemented later for Experienced Worker Route qualified applicants for the Plant Fitter role, albeit with the benefit of hindsight, supports a finding that there were genuine concerns about the adequacy of the 2346 and AM2E route when judged against what qualities London Underground required of Plant Fitters. Such requirements are likely to have been considered absent the unfairness in Mr Albu’s appeal. I cannot simply put to one side the clear evidence of Miss Lewis which I have accepted above – the 2 year post-qualification experience requirement is genuine and important in this safety critical role. It was imposed once the nature of the Experienced Worker Route qualification had been reflected upon.[51]But for the unfairness I have identified it is likely in my judgment that Mr Elliott would have referred Mr Khan’s further advice back to Miss Lewis for comments. This would mirror his approach after receiving Mr Albu’s comments in the appeal meeting – to exchange emails with Miss Lewis on the issues arising. In my judgment, in circumstance where Mr Khan was advising that, on paper, Mr Albu’s 2346 and AM2E qualifications were now equivalent to the City & Guilds Part 1 & 2, it is also likely that Miss Lewis would have taken further steps, sooner, to consider whether Mr Albu’s paper qualifications were sufficient for London Underground’s purposes in the Plant Fitter role without additional appropriate and demonstrable experience in any event. I accept Miss Lewis’ proposition that decision making around the adequacy of the Experienced Worker Route qualification, and the need to demonstrate post-qualification experience, is likely to have been brought forward, once Mr Albu’s appeal and Mr Khan’s advice had alerted London Underground to the nature of the qualification and how it fitted in to the Plant Fitter job description as it was at that time framed.[52]It is likely in my judgment that Miss Lewis would have taken earlier steps to move this process along if the circumstances were that she had the potential for Mr Albu to be employed under her management as a Plant Fitter and she had genuine safety concerns about his ability to undertake that role without supervision. Again, this conclusion is based on the evidence as to her doubts around the adequacy of Mr Albu’s newly acquired paper qualifications and his apparent lack of demonstrable experience.[53]In my judgment, there is a likelihood that but for the unfairness Mr Albu would at some future point have been fairly dismissed by London Underground on ground of capability or qualifications in any event. This would not be by reference to his paper qualifications, but by reference to the (lack of) experience he could demonstrate as standing behind the acquisition of those qualifications. London Underground, and Miss Lewis in particular, is unlikely to have simply permitted Mr Albu to continue to work as a Plant Fitter where concerns which I accept were genuine remained about the 2346 and the AM2E, and where Mr Albu had failed to supply his portfolio or evidence of the experience he relied on the obtain the qualifications.[54]I therefore find that a Polkey deduction should be applied to compensation.[55]In the absence of the unfairness I have identified in the dismissal, and allowing time for:a. Mr Khan’s advice to be discussed with Mr Albu;b. Mr Khan to revisit his advice considering Mr Albu’s proper paper qualifications;c. Mr Elliott to reconsider the appeal outcome based upon it with the further input of Miss Lewis;d. Miss Lewis to take steps with P&E to address the position when it was found that Mr Albu had the paper qualifications to satisfy the Plant Fitter job description but not the experience considered necessary to safely perform the role;e. a further meeting with Mr Albu to discuss and to take his views on Miss Lewis’ position;f. Mr Elliott to dismiss the appeal; in my judgment Mr Albu’s dismissal is likely to have been confirmed fairly, with a fair dismissal of his appeal against the previous decision to dismiss him, within a period of around 2-3 months of the actual date of dismissal of his appeal. I base this assessment on the period of time it in fact took to process Mr Albu’s original dismissal and appeal.[56]It is therefore in my judgment appropriate to make a Polkey finding that but for the unfairness I have identified in Mr Albu’s dismissal he is likely to have been dismissed fairly in any event by London Underground with dismissal of his appeal fairly concluded by 9 November 2023. This would not, however, in my judgment affect Mr Albu’s effective date of termination. On balance of probabilities, this would still be 17 March 2023, being the original termination date on which Mr Albu received a payment in lieu of notice.[57]The implication of my findings, therefore, is that a 100% Polkey deduction must apply in this claim. Mr Albu’s dismissal with effect from 17 March 2023 is likely to have been confirmed in any event following a fair appeal procedure, albeit 3 months later than it in fact was.
Conclusions
[58]In summary, I decline to make a reinstatement or re-engagement order. Based on the Polkey/no difference rule, I find it just and equitable to reduce the compensatory award by 100%, as in my judgment the unfairness that I have previously found in my liability judgment merely delayed confirmation of the original dismissal decision on appeal by a period of 3 months.[59]I would hope that the parties can now go some way to resolving the remaining issues between them in relation to remedy. A hearing will however remain listed to decide such matters and finalise the claim should they remain outstanding. Approved by: Case No: 3308895/2023 Claimant: Mr A Albu Respondent: London Underground Limited Heard at: Reading (by CVP) On: 15 December 2025 Before: Employment Judge Baran (sitting alone) Appearances: Claimant: Ms A Hindley (FRU Representative) Respondent: Ms S Lormant (Solicitor) REMEDY JUDGMENT In addition to the Judgment sent to the parties in writing on 30 October 2025, and upon the parties confirming by emails dated 8 December 2025 and 10 December 2025 that there is agreement between them as to the calculation of compensation to be paid to the claimant following that Judgment, the Tribunal makes the following awards for unfair dismissal:[1]The respondent is ordered to pay the claimant the sum of £4,282.50 made up as follows:(a) A basic award of £4,282.50, and(b) A compensatory award of £0.[2]The recoupment regulations do not apply. Case No: 3308895/2023 Approved by: