Mr D West v Redditch Borough Council — 2020

The tribunal heard a claim arising from a staff briefing on 29 January 2019 where the claimant’s phone played a sound at high volume. It found, on the balance of probabilities, that the sound was of a sexual nature rather than a goose call, and that the claimant did not accidentally delete the WhatsApp message in the way he described. The tribunal accepted that the claimant had not deliberately played the sound, but it found that his account of what the sound was and how the message was lost was dishonest.

The tribunal found that Redditch Borough Council genuinely believed the claimant had committed misconduct and that there were reasonable grounds for that belief. It accepted the disciplinary decision-maker’s evidence that the claimant’s explanation was implausible, and it rejected the suggestion that dismissal was really because he was inattentive at the briefing or part of a group known as the “jokers”. It also held that the investigation carried out by Ms H Mole, although not identical to the respondent’s written procedure, was reasonable overall: the respondent took witness accounts, interviewed the claimant, considered the recording the claimant produced, and allowed the claimant to challenge the evidence at the disciplinary hearing and appeal.

On unfair dismissal, the tribunal applied section 98 ERA 1996 and the Burchell approach to misconduct dismissals, together with the range of reasonable responses test. It found the procedure fair, the investigation reasonable, and the decision to dismiss within the range of reasonable responses. It noted the claimant’s long service and clean disciplinary record, but held that those factors did not make dismissal unreasonable in law. The unfair dismissal claim was therefore dismissed.

On breach of contract, the tribunal applied the test for repudiatory breach and held that the claimant’s conduct breached his contractual obligations and the implied term of trust and confidence. It found that the playing of a sexual sound at the briefing was a serious breach of the respondent’s policies, and that the claimant’s dishonesty about the incident and the deleted message was a deliberate act that undermined trust. Taken together, those matters justified summary dismissal, so the breach of contract claim was also dismissed.