Mr S Johnson v First MTR South Western Trains Limited — 2020

Employment Judge Reed, sitting alone at Southampton on 12 to 13 August 2020, heard Mr S Johnson's claims against First MTR South Western Trains Limited. Mr Johnson was a Commercial Guard with continuous employment from March 1990. The dismissal followed a covert recording made on 2 November 2017 in the Bournemouth mess room, later discussions with a colleague, Ms Smith, about strike action, and a Facebook post on 14 November 2017. A disciplinary hearing took place over three days in January and February 2018; when his first representative was unavailable for the third day, the employer refused a postponement of about two weeks and the hearing proceeded on 27 February 2018 with a different representative.

On unfair dismissal, the tribunal accepted that Mr Johnson had committed misconduct but held that it was not reasonable to conclude that he had committed gross misconduct warranting dismissal. It found that the swearing in the mess room was not one of the more serious matters and was the sort of conduct likely to be addressed by a quiet word. Although Mr Johnson's comments could be offensive, the tribunal found that Ms Balmayne was not bullied or upset by them, and that the allegation concerning Ms Smith was not shown to amount to serious misconduct. The Facebook post was inappropriate, but the tribunal considered the matter in the round, including Mr Johnson's very long service and the lack of evidence for some conclusions reached by the dismissing officer. The unfair dismissal claim succeeded, and the tribunal reduced any award by 50% for contribution under sections 122 and 123 of the Employment Rights Act 1996.

On remedy, the parties agreed a basic award of £7,335 and the tribunal awarded a compensatory award of £8,498.50, with a prescribed element of £8,248.50 and a relevant period running from 27 February 2017 to 13 August 2020. The tribunal found that Mr Johnson had not made reasonable efforts to find alternative work and concluded that his loss was best reflected by six months' loss of wages beyond the end of his notice period. Separately, the tribunal held that the respondent breached the contract by dismissing without notice and awarded £7,614 damages. The right to be accompanied claim failed because the postponement sought was outside the five working day period in section 10 of the Employment Relations Act 1999.