Ms M Martin, Counsel v Mr P Sands, solicitor — 2021

The claimant worked for the respondent from 8 October 2007 and was dismissed on 19 January 2021 after the car-park incident on 6 January 2021 involving colleague PH. The tribunal set out a long history of grievance and counter-grievance between the two men, including earlier incidents, a 2019 mediation, and a 12-month written warning issued to the claimant in 2019 for conduct the respondent found provocative toward PH.

For the unfair dismissal claim, the tribunal accepted that the reason for dismissal was conduct and applied s.98(4) ERA 1996, the Burchell approach and the band of reasonable responses test. It found that the respondent had considered the history between the men, the CCTV footage, and the claimant's explanation, although Mr Gledhill did not watch the claimant's mobile footage and wrongly focused on GDPR. The tribunal also accepted that the claimant's outstanding grievance had not been concluded before the disciplinary hearing, but held that this procedural issue did not make the dismissal unfair overall.

The tribunal found that on 6 January 2021 the claimant blocked PH's car in, filmed him on his phone, moved towards PH after the phone was knocked away, and continued filming for several minutes. It accepted that PH had also behaved provocatively in the incident, including taking the disputed parking space and using a carrier bag marked 'Mutton', but found that the claimant could have parked elsewhere and reported the matter. The tribunal held that dismissal for misconduct was open to a reasonable employer and that any procedural defects would in any event have led to a 100% Polkey reduction, so the unfair dismissal claim was dismissed.

Applying the different contractual test for wrongful dismissal, the tribunal held that the claimant's conduct did not amount to gross misconduct or a repudiatory breach. It therefore found the wrongful dismissal claim well-founded and ordered the respondent to pay notice pay, to be calculated by the parties. The redundancy payment and unlawful deduction from wages complaints were withdrawn.