- MR J DAVIES FOR THE v Mr N Henry (Consultant) — 2022

The claimant, Mr D Hide, was employed by Fargro Ltd from 28 January 2013 until his dismissal on 27 January 2020. The case concerned disciplinary allegations arising from a screensaver incident, complaints by a colleague, an external investigation by Mr Carl Tudor, a disciplinary hearing conducted by Mr Dean Yeomans, and an appeal considered by Mr Joe Thomas and then accepted by Mr Hopkins. The tribunal recorded that the respondent relied on gross misconduct, while the claimant argued that the process was procedurally and substantively unfair.

The tribunal rejected several procedural criticisms. It held that the respondent was entitled to use external consultants, that the later examination of work devices did not amount to covert surveillance of the kind relied on by the claimant, and that the screensaver issue could properly be revisited as part of the wider disciplinary picture. It also accepted that the respondent could rely on the broader pattern of behaviour when assessing misconduct.

The tribunal nevertheless found the dismissal procedurally unfair because there was no genuine appeal. It accepted that if Mr Hopkins was the ultimate decision-maker at both the disciplinary and appeal stages, he was effectively determining an appeal against his own decision. The tribunal also accepted the claimant's point that the appeal report did not address all of the grounds of appeal. On substance, however, it held that the dismissal was broadly substantively fair and within the range reasonably open to the respondent, although it noted that one finding, about inappropriate use of work time, was not fully supported by the evidence.

On remedy, the tribunal said there should be a 66.66% Polkey reduction, but the reasons also contain a reference to a 75% Polkey reduction in the contributory fault paragraph. It made no finding of contributory fault and did not fix any final monetary award, instead directing the parties to try to agree remedy or return for a remedy hearing.