Mr. S Williams v Office Solutions (SE) Limited — 2019

The tribunal found that Office Solutions (SE) Limited was a small office supplies business and that Mr Williams had been employed for 20 years as a print manager. His 2009 contract required him to devote his whole time and attention to the company and prohibited him from being concerned in any other business without the written consent of the directors. The tribunal also found that the furlough arrangements during March 2020 did not vary that contractual restriction.

The dismissal followed an investigation into high click charges on the respondent's Xerox equipment and work for customers including Inaga, Primo and Omega. At the disciplinary hearing Mr Williams accepted that he had carried out work for Primo during lockdown, gave an explanation about Omega, and disputed the Inaga allegations. Mr Bezani upheld three allegations and dismissed him; the appeal and grievance were then heard by Mr Gibbs, who dismissed the appeal. The tribunal found that Omega was not a customer of the respondent, but that Primo remained a customer and that the Inaga work had been done without proper invoicing.

On the unfair dismissal claim, the tribunal held that conduct was the potentially fair reason for dismissal under section 98 ERA 1996 and that the respondent's initial investigation and disciplinary process were fair and reasonable. It found that Mr Bezani had a reasonable belief, based on a proper investigation and Mr Williams' admissions, that he had done private work for a customer of the respondent and had failed to invoice work. The tribunal also found that the dismissal reasoning was expanded in places beyond the original investigation, including the treatment of scrap paper and the third allegation about use of company equipment, and that the third allegation was not reasonably upheld on the evidence before Mr Bezani. Even so, the tribunal concluded that either of the first two allegations alone amounted to gross misconduct and that dismissal remained within the range of reasonable responses, so the unfair dismissal claim failed.

On the notice pay claim, the tribunal held that Mr Williams was not entitled to carry out secondary employment of any sort and that the coronavirus furlough position did not change that contractual term. It found that he admitted undertaking secondary employment, including work for customers of the respondent, and that this was both a breach of an express contractual term and a breach of the implied term of fidelity. The tribunal therefore concluded that he had committed a repudiatory breach of contract and that the respondent was entitled to dismiss without notice, so the breach of contract claim also failed. No monetary award was made.