Mr D Vulliamy (Citizens Advice Bureau) For the v Respondent — 2020

The tribunal found that Mr Alan Burgess was dismissed for conduct after Berrygate Hill Nurseries Ltd concluded he had switched off the Priva and shuttle systems on 27 March 2019. It accepted the respondent's case that the Priva system could not be turned off by accident, that CCTV and system records placed the claimant in the loading area at the relevant time, and that no other person was visible in the immediate vicinity. The tribunal also accepted that the timing difference between the CCTV and Priva records did not undermine the respondent's case.

On the unfair dismissal claim, the tribunal held that the respondent genuinely and reasonably believed the claimant was guilty of the alleged misconduct and that dismissal was within the range of reasonable responses under section 98(4) ERA 1996. It found a number of procedural failings, including delay, late disclosure of Mr W Overvoorde's statement, and the failure to tell the claimant about enquiries made of Romanian workers on site. The appeal officer accepted some of those procedural defects but did not uphold the appeal, and the tribunal concluded that the defects did not affect the outcome.

The wrongful dismissal claim failed because the tribunal found on the balance of probabilities that the claimant had in fact turned off both systems and that this amounted to gross misconduct and a fundamental breach of contract. The tribunal also found that the claimant caused or contributed to his dismissal as to 100% and, if needed, that there should be a 100% Polkey deduction. The judgment does not set out any monetary award.