Mr J Galbraith-Marten QC v Respondent — 2020

The tribunal held that the claimant’s complaints of unfair dismissal and wrongful dismissal were well founded. The case arose from an incident on 25 May 2016 at a pub after a meeting connected with the Unaoil investigation, where the tribunal found on the balance of probabilities that the claimant called Mr Luebke a quisling, meaning and understood as a spy, but did not use the word c***. It also found that Mr Luebke did not take offence at what was said. The respondent dismissed the claimant after an internal disciplinary process led by Mr Osbaldiston, who concluded that the claimant had used the words c***, spy and quisling and had wilfully misrepresented the facts by denying the incident.

Applying section 98 of the Employment Rights Act 1996 and the Burchell and Hitt approach, the tribunal accepted that the dismissal was for conduct and that Mr Osbaldiston genuinely believed the claimant had committed misconduct. However, it found that the investigation was unreasonable in three respects: the respondent failed to investigate properly the claimant’s case that the complaint had been raised late as part of an attempt to have him removed as case controller; it failed to investigate his case that the language was within the relevant “common lexicon”; and it failed properly to examine the separate allegation of wilful misrepresentation. The tribunal concluded that a reasonable investigation would have found that the complaint was raised when it was as part of an attempt to remove the claimant, and that in those circumstances dismissal for the pub incident was outside the range of reasonable responses.

On the wrongful dismissal claim, the tribunal held that accusing Mr Luebke of being a spy, in the sense meant by the word quisling, did not amount to conduct sufficiently serious to justify summary dismissal without notice. It placed weight on the fact that Mr Luebke effectively accepted that he was a spy in that sense and was not offended by the remark. The tribunal also rejected the finding that the claimant had made a wilful misrepresentation by denying use of the word c***, because it found that he had not used that word. Remedies were left for a further hearing.