Mr T E Gorczyca v Global Outdoor Media Limited — 2022

The claimant had worked for the respondent as a multi-media technician since 7 April 2008. The dispute began after he refused on 4 February 2020 to sign safety briefing attendance sheets while waiting for answers to earlier questions about PPE and training. He was suspended, first wrongly told he could be kept away from work without pay, then placed on paid suspension pending investigation. The investigation report dated 18 March 2020 recommended disciplinary action, but the respondent paused the process during the Covid-19 lockdown and while the claimant was on furlough.

The tribunal rejected the constructive dismissal case. It found that the claimant did not resign, and did not accept any alleged repudiatory breach, on 23 July 2020 or at any later point. After that date he continued to engage with the disciplinary and grievance process, attended hearings, appealed the dismissal, and said he had lost his job and wanted it back. The tribunal also held that the respondent did not breach clause 12 of the contract, the implied term of mutual trust and confidence, or any implied duty to conduct the disciplinary process promptly and fairly. It found the suspension was permitted for the disciplinary process and that the pause during the pandemic and furlough was not unreasonable.

The tribunal also dismissed the ordinary unfair dismissal claim. Once the suspension ended, the claimant was told to return to work on 5 and 6 August 2020, but he did not do so. At the disciplinary hearing on 26 August 2020 he accepted that he would act in the same way again if he returned to work. Applying the Burchell approach and section 98(4) ERA 1996, the tribunal held that the respondent reasonably believed the misconduct had occurred, had carried out a reasonable investigation, and acted within the band of reasonable responses in summarily dismissing him for gross misconduct. It did not need to consider Polkey or contributory conduct because the claim failed.

The unlawful deduction claim also failed. The tribunal held that the claimant was absent from work without authorisation from the date he was told his suspension had ended until dismissal, and that clause 6 of the contract allowed the respondent to withhold pay for such absence. The effective date of termination was found to be 26 August 2020.