Alexandra Leese v Intercoat Industrial Paints Limited — 2022

Alexandra Leese was employed by Intercoat Industrial Paints Limited from 1 February 2005 until she was dismissed without notice on 2 February 2021. She brought claims for unfair dismissal and breach of contract arising out of that dismissal. The respondent said she had been dismissed for gross misconduct, relying on matters including alleged concealment about contacts with former employees and competitors, free-of-charge paint, and clocking in Richard Arnold when he was not present.

The tribunal accepted that the respondent genuinely believed the claimant had committed misconduct and that there were reasonable grounds for that belief. It found that she had clocked Mr Arnold in when he was not on site, that her account of the 9 December 2020 meeting at the Shoal Hill Tavern and the 21 December 2020 visit to ISF was not credible, and that the respondent could reasonably conclude she knew about and facilitated the cancellation of the 5 January 2021 order and the later transfer of paint to Mr Thomas. The tribunal also held that the investigation carried out through Mr May was broad enough, and that dismissal was within the range of reasonable responses.

The unfair dismissal claim nevertheless succeeded because the procedure was not fair. The tribunal relied in particular on the use of tracking devices on private vehicles, the investigator being given his remit by Mr Vann without the underlying contract documents, the apparent pre-determination of suspension before the investigatory meeting, and the absence of proper contemporaneous notes or recordings. It also found that the disciplinary stage introduced wider allegations only then, although the appeal process itself was adequate.

On remedy, the claimant's schedule of loss was £6,732.96 basic award and £7,611.20 compensatory award, including £500 for loss of statutory rights, for a total of £14,844.16. The tribunal applied a 100% Polkey reduction, finding that she would still have been dismissed had a fair process been followed, and it also reduced the basic and compensatory awards by 100% for contributory conduct under ss.122(2) and 123(6) of the Employment Rights Act 1996, so no compensation remained. The breach of contract claim was dismissed because the tribunal found that the claimant had engaged in conduct entitling the respondent to dismiss without notice.