Mr Daniel Phelps v Dorset and Wiltshire Fire and Rescue Service — 2020

Mr Phelps was dismissed on 23 May 2019 at the end of an extended probationary period as a full-time firefighter with Dorset and Wiltshire Fire and Rescue Service. The tribunal found that the case was one of capability or aptitude, not misconduct: the respondent was seeking to assess whether his behaviours and performance were at an acceptable standard, rather than punishing past wrongdoing. By the time the dismissal decision was made, he had reached two years' service, so he had the statutory right not to be unfairly dismissed.

Applying section 98(4) of the Employment Rights Act 1996 and the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015, the tribunal held that fairness required a final hearing before dismissal, with the opportunity to be accompanied, and a right of appeal. The respondent instead relied on its probationary process, which did not provide those steps. The tribunal also considered that the internal whistleblowing investigation was not an adequate substitute, because it did not squarely test Mr Phelps's complaints about double standards, trivial criticism, or the possibility that standards differed between stations.

The tribunal accepted that there had been a long accumulation of concerns over conduct, teamwork, attitude, and performance, and that Mr Legg-Bagg had tried to support Mr Phelps through review meetings and a performance improvement plan. It nevertheless found that the lack of a fair final hearing made the dismissal unfair. On remedy, it applied the Polkey principle and assessed that a fair process would still probably have led to dismissal, but only after a real 30% chance of a more lenient outcome. It made no deduction for contributory fault because this was not treated as a conduct dismissal.

The tribunal found a clear breach of the ACAS Code and applied a 15% uplift. Reinstatement or re-engagement was not ordered. The parties then agreed compensation at £6,765, which the tribunal awarded as the final sum.