Mr A Fetnaci v Property Management Integrated Service & Employment Co. Ltd — 2022

The tribunal first refused the Claimant’s late application to add a wrongful dismissal claim. Applying the amendment guidance in Vaughan v Modality Partnership and the Selkent principles, it held that the new claim was out of time and that the balance of prejudice fell more heavily on the Respondent because the amendment would require further preparation and would likely delay the trial.

On the unfair dismissal claim, the tribunal found that the Respondent had a reasonable belief in misconduct, on reasonable grounds, and had carried out a reasonable investigation. The Claimant had accepted during the process that he had not reviewed the generic ACE RAMs since the Respondent took over OTE, that those RAMs were still with the former manager, and that he had not started the risk register. The tribunal rejected the Claimant’s arguments that the Respondent had simply followed the client’s instructions or failed to search properly for documents.

The claim nevertheless succeeded because the tribunal held that the disciplinary allegations were not made clear enough before the 22 February 2021 hearing. It relied on Strouthos in saying that a charge should be precisely framed. The Claimant had been told only broad health and safety allegations before the hearing, and the specific factual allegations relied on at the hearing were only properly identified later, including the points about reviewing generic RAMs, storing them accessibly, and maintaining the risk register.

The tribunal also held that dismissal was outside the band of reasonable responses. It found that the Respondent had not made the Claimant’s responsibilities explicitly clear, that his workload had doubled after the TUPE transfer, that no tangible steps had been taken to reduce that workload, and that he had been required to learn a new system and complete online training. It therefore found the dismissal unfair. It reduced any basic or compensatory award by 50% for contributory conduct, because the Claimant had still been at fault in relation to the RAMs and the risk register, but it made no Polkey reduction because the Respondent had not adduced evidence that dismissal would have occurred fairly in any event.