Mr A Billingham v EMKA (UK) Limited — 2023

Mr Billingham had been employed by EMKA (UK) Limited since 1 November 1991 and became the UK company manager in 2005. In 2022, Mr Hunn queried stock issues, especially Digitus stock, and the tribunal found that internal emails showed the Group had already moved to replace the Claimant before the 28 September 2022 meeting. At that meeting he was told that management had decided his employment was no longer required, or words to that effect, and that he could leave amicably or be dismissed for gross misconduct. He then proposed a payment figure of £34,040, which the Respondent accepted by email, but no settlement agreement was concluded and the parties did not agree all core terms, including tax treatment.

The tribunal held that the Claimant was dismissed by the Respondent and that the dismissal was unfair. It rejected the suggestion that the termination was a mutual agreement, finding that there had been no meeting of minds on the essential terms of any departure. The tribunal also rejected conduct as the true reason for dismissal: the 2015 email about Digitus stock was not known to the decision makers when the decision to dismiss had already been taken and was only later used to support that decision. The true reason was found to be capability, or loss of trust and confidence in the Claimant's ability to manage. Even on the Respondent's alternative conduct case, the tribunal said there had been very little, if any, procedure, that the outcome had been pre-judged, and that the investigation and decision were not within the range of reasonable responses.

The tribunal admitted the pre-termination negotiations under section 111A Employment Rights Act 1996, finding improper behaviour and saying that, in any event, the same dismissal conclusion would have followed on the admissible evidence. It considered Polkey and concluded that a fair process would likely still have ended the employment, but only after a capability or SOSR process and with nine months' notice running from 31 October 2022, or 31 July 2023 if garden leave applied. It also found contributory fault and said a 25% reduction would be appropriate for both basic and compensatory awards because the Claimant was responsible for purchasing the stock and that purchase exposed the Respondent to a significant loss.

On wrongful dismissal, the tribunal found that the Respondent had not proved gross misconduct. It accepted the Claimant's evidence that he had followed the same purchasing process for many years, that the relevant information was available to management, and that there was no proof he deliberately went outside the correct process. The tribunal therefore held that the Claimant should have been dismissed on notice and was wrongfully dismissed. Remedy was left for a later hearing, and the tribunal directed the parties to say whether remedy had been agreed or whether a remedy hearing was required; it also recorded that reinstatement or re-engagement was not sought.