De Bockary v ISS Mediclean Limited — 2021

The claimant was employed by the respondent from 1 January 2000 until her dismissal on 14 September 2018 for alleged misconduct. The respondent relied on conduct as the potentially fair reason for dismissal. The tribunal accepted that the claimant had a live final written warning, that the warning was valid and had been issued in good faith, and that the respondent's decision makers held a genuine belief that the claimant was guilty of misconduct.

The tribunal found that the investigation into the July 2018 incident was unfair. It found that the investigator used partial language, misled a witness about the number of supporting statements, reached a case-to-answer conclusion before asking several witnesses about the incident, and did not look for evidence supporting the claimant's account. The tribunal also found that the disciplinary and appeal processes did not rectify the unfairness because they relied on the investigation report.

Applying s.98(4) ERA and the authorities on conduct dismissals, the tribunal concluded that it could not be satisfied that the conduct, taken together with the live final written warning, was sufficient to dismiss the claimant. The claim for unfair dismissal was therefore upheld.

The tribunal did not set a monetary award in this judgment. It ordered a 50% reduction to the basic and compensatory awards for contributory fault, a 20% uplift to the compensatory award for failure to follow the ACAS Code, and a 20% Polkey reduction to the compensatory award. It stated that, if the parties could not agree remedy, the issue would be determined at a further hearing on 21 July 2021.