in-person v Mr D Seale, solicitor — 2019

Ms H Taylor Davies was employed by Creative Hospitality Payroll Ltd from 25 January 2016 to 26 June 2018, latterly as assistant manager at Bambu Beach Bar in Swansea. The tribunal heard evidence about a Facebook Messenger group chat called "Bamboosing" involving staff and former staff, containing references to drugs. On 25 June 2018 the claimant and other managers were taken out of an all-staff meeting for an investigation without prior notice, and the tribunal found the process was conducted in public and without notes. The claimant was later dismissed following a disciplinary meeting on 26 June 2018 and an appeal chaired by Mr Bruno Nunes was rejected on 23 July 2018, with the dismissal reason amended on appeal to "gross misconduct due to loss of integrity and breach of trust and confidence".

The tribunal held that the reason for dismissal was conduct within s.98(2)(b) ERA 1996 and that the respondent had a genuine belief based on the content of the chat. It accepted that the lines between private and work use were blurred because the chat involved work colleagues and work-related matters, and it found the dismissal was not outside the band of reasonable responses. However, the tribunal also found serious procedural failings: the same managers were involved in investigation, disciplinary and appeal stages; the claimant was given only 24 hours' notice of the disciplinary hearing; evidence was not provided in advance; confidentiality was not preserved; and the appeal was not impartial. It concluded that the decision-making at disciplinary and appeal stage was predetermined and that there had been an unreasonable failure to comply with the ACAS Code.

On remedy, the tribunal applied a 75% Polkey deduction and a 25% deduction for contribution, and stated that had a fair process been followed the claimant would have remained employed for an additional two working days after the investigation, with salary due for 25, 26 and 27 June 2018. The final unfair dismissal compensation was left for a later remedy hearing. Separately, the tribunal upheld the claimant's bonus claim. It found the net profit bonus scheme was potentially payable to the claimant as assistant manager, no evidence showed that Bambu had failed to achieve net profit above budget for January to May 2018, and the respondent's non-payment decision was not made with the necessary rationality and good faith. The bonus claim was awarded in the sum of £2,500.