Mr P Abreu v New Century Foods — 2021

Mr P Abreu was employed by New Century Foods from October 2013 until his dismissal without notice on 31 July 2020. The respondent relied on misconduct arising from a period in July 2020 when the claimant arranged leave, travelled via Spain to Portugal during the COVID-19 restrictions, and then spoke to the Factory Manager, Colin Steele, on 9 July 2020. The central factual dispute was what was said in that call, and whether the claimant had intended to mislead the respondent about his whereabouts and travel plans.

The tribunal held that the respondent had a genuine belief that the claimant had committed misconduct and that misconduct was a potentially fair reason for dismissal under section 98(2)(b) ERA 1996. However, it found the investigation and disciplinary process unreasonable. Colin Steele was both a material witness to the disputed telephone call and the person who investigated and decided the misconduct allegation, which meant there was no proper separation between witness, investigator and decision-maker. The tribunal also found that the claimant’s explanation for the 9 July call was not fairly or objectively assessed, that the appeal was not handled impartially, and that no real consideration was given to alternatives to dismissal.

The tribunal therefore held that the dismissal was outside the range of reasonable responses and unfair under section 98 of the Employment Rights Act 1996. It found that there was a 50% chance the claimant would have been dismissed anyway had a fair procedure been followed, so a Polkey reduction of 50% would apply to compensation. It also found that the respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, justifying a 15% uplift to the compensatory award, and that the claimant’s conduct was blameworthy and contributed to his dismissal, so both the basic and compensatory awards would be reduced by 50%. The judgment itself did not set the final monetary award because remedy was left to a later hearing.