Mr Airey, solicitor For the v Respondent — 2022

The tribunal substituted Poppies (Camden) Ltd as the respondent and found that the claimant had been employed by that company from at least April 2013. It found that the dismissal on 14 September 2020 was triggered by a photograph in which the claimant exposed his penis to a resident during a parking dispute, but that the email containing the photograph had first been received in 2016, opened and likely viewed then, and was therefore known to relevant managers at that time.

Applying section 98(1)(a) and section 98(4) Employment Rights Act 1996, British Home Stores v Burchell, Iceland Frozen Foods v Jones, Sainsbury's Supermarkets Ltd v Hitt, and the ACAS Code, the tribunal held that the reason for dismissal was conduct, but the dismissal was unfair. It found that the respondent carried out an extremely limited investigation in 2020, did not investigate what had happened in 2016, gave no written notice of the allegation, did not tell the claimant of any right to be accompanied, held only a brief meeting, and gave no right of appeal.

On wrongful dismissal, the tribunal held that the respondent had known of the relevant conduct in 2016 and nevertheless allowed the claimant to continue working, so it had affirmed the contract and lost the right to terminate without notice. The wrongful dismissal claim therefore succeeded, with damages left for the remedy hearing. The claim under section 93 Employment Rights Act 1996 failed because the tribunal considered the written reasons for dismissal sufficient, while the regulation 14 Working Time Regulations 1998 holiday pay claim succeeded on liability, with 12.81 days accrued leave found due but the rate and quantum left unresolved. The claimant's unlawful deduction from wages claim had been withdrawn, and the section 38 Employment Act 2002 issue succeeded on a breach of section 1(1) Employment Rights Act 1996, with any award reserved to remedy.