Mr D Morris v Cryoaction Limited Heard: by video — 2022

The tribunal found that Mr Morris was wrongfully dismissed. It accepted that the Glasgow Cryolabs work on 31 January 2020 was only the final commissioning stage of a chamber already manufactured and partly installed, that he had previously carried out hands-on technical work, including actuator wiring, and that he was competent to do the straightforward wiring task. On that basis, it concluded he was not guilty of gross misconduct and was entitled to three months' notice, not summary dismissal.

On unfair dismissal, the tribunal accepted that the dismissal was for conduct and that the dismissing officer and appeal officer genuinely believed the allegations. It applied the Burchell test and s.98(4) ERA 1996, together with the range of reasonable responses approach, and held that the investigation into the third allegation was insufficient because the respondent did not ask straightforward follow-up questions of Mr Reid despite the claimant's request. Even though the first and second allegations could support misconduct findings, the tribunal held that dismissal was outside the range of reasonable responses. It rejected any contributory conduct reduction, found no ACAS uplift was justified, and held that any compensatory award would be reduced on Polkey grounds because the employment would probably have ended fairly within a further six months.

The remaining claims were dismissed. The tribunal found no unlawful deduction in relation to the director's loan account allocations because the claimant had consented in writing to that arrangement. It found that all holiday entitlement for the 2020 holiday year had been taken, that the itemised pay statement claim failed because the payslips were found to have been received, and that the statement-of-particulars claim failed because a compliant statement was provided on 12 August 2020 before proceedings began. It also rejected the national minimum wage claim, holding that the remuneration structure in this case, including dividends and the salary allocation, counted toward NMW and remained above the minimum even on the claimant's own account of his hours. A remedy hearing was left to be listed for the successful claims.