Ms A Johns of Counsel For the v Respondent — 2019

The tribunal held that Mr Pompa was unfairly dismissed for alleged misconduct arising from the September 2014 transfer of £2,000 to his mother from a client account. It found that the respondent’s case was not that the dismissal flowed from the September 2017 remittance error or the claimant’s refusal to sign the warning, although those events led to the later investigation becoming aware of the 2014 transaction. The tribunal accepted that the claimant had obtained approval from Mrs Rocha for a temporary loan arrangement, and that the respondent’s workplace culture involved following instructions from more senior staff.

Applying section 98 of the Employment Rights Act 1996 and the Burchell approach, the tribunal found that although there was some basis for suspecting misconduct, the respondent did not carry out a reasonable investigation. It criticised the failure to properly follow up Mrs Rocha’s evidence, including her signed statement confirming that she had approved the transaction, and found that the respondent did not meaningfully test or explain the weight given to that evidence. The tribunal also found that Mr So, who made the dismissal decision, did not attend the disciplinary hearing, did not set out his reasoning, and there was no reliable evidence of the material he actually considered.

The tribunal found that the 13 October 2017 meeting was aggressive and bullying and designed to pressure the claimant to resign, but it did not accept that the subsequent disciplinary process was merely punishment for his refusal to resign. It found the 22 September 2017 warning was issued without investigation or an opportunity for representations and was unfair, although it was not part of the dismissal reason. The tribunal also found that suspension was handled without proper thought and that the dismissal decision was taken without the claimant having an opportunity to address Mr So directly.

On remedy-related issues, the tribunal rejected a Polkey reduction on the basis that the substantive and procedural flaws were significant and it had no evidence that dismissal would inevitably have followed a fair process. It found contributory fault at 30%, reasoning that the claimant accepted some wrongdoing in asking for the £2,000 and knew the transaction did not comply with company and regulatory rules. It also said that any eventual award should be increased by 10% for failure to follow the ACAS disciplinary code. No monetary remedy was fixed in this judgment because the matter was listed for a separate remedy hearing.