Mr D Cox v TC Facilities Management Limited — 2022

Mr Cox was employed by TC Facilities Management Limited as a Cluster Facilities Manager and was dismissed in October 2018 after an allegation that he had falsified a cleaning audit at the Beccles Tesco store on 5 October 2018. The tribunal also considered his complaints that he had been required to work excessive hours and that he had suffered detriments after raising those concerns in emails, a grievance, and oral discussions. It found that those complaints were disclosures of information and that he genuinely believed they indicated breaches of the Working Time Regulations, but the belief that they were made in the public interest was not made out because they concerned only his own working pattern and employment position.

The tribunal found that Mr Cox was subjected to performance management and was suspended, but not because of any protected disclosure. It held that the suspension arose from a non-genuine allegation that he had consumed alcohol while on duty, and that the Respondent's managers were focused on his performance rather than his complaints about working hours. For that reason the s.47B whistleblowing detriment complaint failed.

The unfair dismissal complaint succeeded. The Respondent said it dismissed Mr Cox for gross misconduct because it believed he had altered the Beccles audit from red to green within less than a minute and had done so without agreement from the store manager. The tribunal accepted that Mr Niksic and Mr Tecuta genuinely believed misconduct had occurred and that summary dismissal for falsifying an audit could fall within the range of reasonable responses, but it held that the belief was not reasonably held because the investigation was inadequate: Mr Cox's explanation was not put properly to Craig Elmer or Gary Bulley and tracker evidence was not checked.

The tribunal applied a 60% Polkey reduction because, even if the procedural defects had been cured, there was still a high likelihood that Mr Cox would have been fairly dismissed in any event. It rejected contributory fault. The award was a basic award of £2,448.00 and a compensatory award of £2,991.40, making a total award of £5,439.40. It did not order reinstatement or re-engagement and did not impose any financial penalty under s.12A of the Employment Tribunals Act 1996.