- IN PERSON FOR THE v Respondent — 2021

The claimant worked as a porter for Mitie Ltd at the NHS Royal Cornwall Hospital from 9 July 2012 until his summary dismissal on 17 July 2020. The dismissal arose from an घटना on 1 June 2020 when he was asked to take a female patient to the pharmacy and return her. The tribunal recorded written complaints from pharmacy staff, a security guard and the porter who replaced the claimant, all describing him as rude, angry or aggressive and saying the patient was upset. The claimant disputed that account and said the complaints misunderstood his conduct.

On the unfair dismissal claim, the tribunal applied s.98(2) Employment Rights Act 1996, the Burchell questions and the range of reasonable responses test, and it also referred to OCS Group v Taylor on overall fairness. It found that the investigation by Ms Rapson fell within the range reasonably open to the respondent, that it was reasonable for Ms Altass to proceed with the disciplinary hearing in the claimant's absence because he knew of the hearing and could have attended with another representative, and that the conclusions reached on misconduct and gross misconduct were within the range of reasonable responses. The unfair dismissal claim was therefore dismissed.

On wrongful dismissal, the tribunal distinguished the fairness question from whether misconduct was proved as a matter of fact. It noted that the respondent relied on written complaints and no direct evidence from the witnesses was called before the tribunal. Although the complaints painted a consistent picture, the tribunal was not persuaded that it could determine as a fact that the claimant had been guilty of the misconduct alleged or that the respondent was entitled to dismiss without notice. The wrongful dismissal claim was upheld.

The holiday pay claim was dismissed because it was not particularised and there was no evidence that any unpaid holiday pay was due. At remedy, the tribunal stated that the claimant was entitled to notice pay on the wrongful dismissal claim, but it did not quantify any award; instead, it directed the parties to notify the tribunal within 28 days whether a remedy hearing was required and what remained in dispute.