Mr Chee Khai Tan v Wok Away Food Limited — 2021

The respondent, a small Chinese take-away business owned by Ms Yanning Francis, employed the claimant from 7 March 2016 as kitchen staff/chef. The tribunal rejected the respondent's late amendment that the claimant had resigned and found instead that he was dismissed on 26 July 2020. It accepted evidence that the claimant had been angry and aggressive in the workplace, had shouted at Ms Francis, and had threatened Mr Samuel Warne with a knife, but it did not make findings on the separate allegation of sexual assault reported to the police.

On unfair dismissal, the tribunal held that misconduct was the reason for dismissal and that this was a potentially fair reason under section 98(2) ERA 1996. Applying section 98(4) and the authorities cited in the judgment, it found that the respondent genuinely believed the misconduct occurred, but the dismissal was unfair because there had been no investigation and no disciplinary hearing before the decision to dismiss. The tribunal said a reasonable employer in the respondent's position would have taken time to assess the claimant's explanation and given him an opportunity to respond.

The tribunal also carried out a Polkey assessment and concluded that, if a fair process had been followed, the claimant would still have been dismissed. It therefore said any compensatory award would be limited to two weeks' wages, but also found that the claimant's conduct caused or contributed to his dismissal to the extent of 80%, to be applied to the basic and compensatory award. Remedy was adjourned to a later date, so no final monetary award was determined in this judgment.

On wrongful dismissal, the tribunal found that the claimant's conduct amounted to gross misconduct and that the respondent was entitled to dismiss without notice. It therefore rejected the notice-pay claim, which the judgment also describes as a breach of contract claim. The holiday pay claim was withdrawn and dismissed on withdrawal by the claimant.