Mr George Pollitt (Counsel) For the v Respondent — 2024

The claimant was employed as a Territory Sales Manager from June 2018. The tribunal found that concerns about his performance were discussed internally at Advisory Board meetings on 8 October 2021, 22 April 2022, 14 October 2022 and 3 March 2023, but that there were no documented concerns about misconduct or conduct issues before March 2023 and no use of the respondent’s written capability procedure before the disciplinary process began.

The tribunal found that the decision to dismiss the claimant had already been taken at the Advisory Board meeting on 3 March 2023, before the disciplinary process. It held that Mr Hewitt then proceeded on the basis of vague and undocumented recollections of alleged verbal complaints, did not carry out a fresh investigation, did not interview the claimant, and did not give adequate particulars of the allegations. The tribunal concluded that the respondent did not genuinely believe the claimant was guilty of gross misconduct, had no reasonable grounds for such a belief, and did not base any such belief on a reasonable investigation.

The tribunal also found that the dismissal was outside the range of reasonable responses because the concerns were about performance and should have been addressed through counselling and the capability procedure, not dismissal for gross misconduct. The disciplinary hearing and appeal were both found procedurally unfair, including because the claimant was not told the case against him and, at appeal, the notes of post-dismissal interviews with employees and suppliers were not disclosed to him. The tribunal rejected Polkey and contributory fault reductions, found no blameworthy conduct by the claimant that caused or contributed to dismissal, and held that the wrongful dismissal claim also succeeded because the respondent did not prove gross misconduct. A remedy hearing was listed, including consideration of section 207A and whether the unlawful deduction of wages claim was being pursued.