Mr Richard Andrew v Montgomery Waters Ltd — 2020

Mr Andrew was employed by Montgomery Waters Ltd as a production team leader from March 2004 until his summary dismissal on 4 February 2019 for alleged breach of the respondent's no-smoking policy. The tribunal accepted that the respondent was entitled to treat food safety and customer perception as serious matters, and that it carried out an investigation using temporary CCTV, permanent CCTV and access control records. It found that the respondent came to a genuine, honest and reasonable belief that the person shown smoking in the tank farm on 23 January 2019 was the claimant.

The tribunal nevertheless held that the dismissal was unfair under section 98(4) ERA 1996. It accepted that the respondent failed to give the claimant written notice of the allegations and the likely consequences, and criticised the fact that Mr Prosser acted as both investigator and disciplinary officer. The main unfairness, however, was substantive: the handbook and associated practice did not clearly identify when smoking would amount to gross misconduct and justify summary dismissal, especially given the inconsistency between the misconduct and gross misconduct provisions and the unclear meaning of "serious cases".

On the wrongful dismissal claim, the tribunal found that the claimant was the person seen on CCTV smoking in the tank farm, but held that smoking in that open-air storage area was not shown to be such a serious matter as to amount to a fundamental breach of contract. It therefore found that the summary dismissal was in breach of contract and that the claimant was entitled to compensation in lieu of notice. The tribunal also found contributory conduct of 50% for the unfair dismissal claim, and said no Polkey deduction was appropriate because the unfairness was chiefly substantive. Remedy was adjourned to a later hearing.