Mr J Butcher v The Yarmouth (Isle of Wight) Harbour Commissioners — 2019

Mr Butcher was employed by the Yarmouth Harbour Commissioners as Deputy Harbour Master. The dismissal arose from his use of his own boat, Titan, at the Harbour in May to July 2017, the timing of his change-of-details form, and the resulting charges. The respondent alleged that he breached Harbour rules, failed to notify staff properly, failed to raise the underpayment, and used his position for personal benefit. The tribunal found that allegations 1 to 5 were made out on the basis of reasonable grounds, but allegation 6, concerning reputational damage, was not upheld as a separate misconduct allegation.

The tribunal accepted that Mr Adams and Mr Stables had a sufficient evidential basis to conclude that Titan was on the Harbour without an annual licence between 27 May and 20 July 2017, that the first change-of-details form received was dated 21 July 2017, and that the claimant did not bring the undercharging to staff's attention. It held that the respondent was entitled to conclude that he had delayed regularising the position for nearly two months, that he was in a position of trust, and that the conduct amounted to serious misconduct. However, the tribunal found no dishonest intent: the claimant's conduct was described as seriously blameworthy and partly an oversight, rather than a finding that he intended to deceive.

The claim succeeded because the appeal stage was materially flawed. The tribunal found that Mrs Crampton-Thomas proceeded on the basis that Mr Stables had found the claimant intentionally avoided paying the proper fees and had acted dishonestly, when Mr Stables had not made that finding. That error went to the reason for dismissal and the gravamen of the conduct, and the tribunal held that it undermined the claimant's right of appeal and made the dismissal unfair as a whole. On remedy, the tribunal stated that any basic and compensatory awards would be reduced by 85% for contributory conduct; it rejected a 100% reduction because dishonesty was not found.