Mr Yaw Oppong v Regular Cleaning Services — 2021

Mr Yaw Oppong was employed by Regular Cleaning Services Limited as a cleaning operative from 7 April 2016 until 26 November 2019. The case arose from a physical fight with another employee, K, on 6 October 2019. The tribunal accepted that the fight occurred, considered the hospital discharge summary showing K's neck injury and eye swelling, and reviewed the claimant's own shifting accounts, including the statement prepared through his brother and the later investigatory and disciplinary interviews.

Applying s.98 ERA 1996 and the Burchell approach, the tribunal found that the respondent genuinely believed the claimant had committed misconduct and had reasonable grounds for that belief after a reasonable investigation. It accepted that the claimant had given inconsistent accounts of the incident and had raised his voice during the 30 October 2019 investigatory meeting, and it rejected criticism of the timing of the meeting, the interpreter arrangements, and the handling of the medical evidence.

The unfair dismissal claim nevertheless succeeded because the tribunal found the sanction of dismissal outside the range of reasonable responses when compared with K's case. It found the two cases were sufficiently similar for a disparity argument: both men were involved in the same fight, both gave inconsistent accounts, and the respondent's witnesses had not identified a clear rational basis for dismissing the claimant but retaining K on a warning. The wrongful dismissal claim failed because the claimant's conduct amounted to gross misconduct. The tribunal also found the claimant's conduct was culpable and blameworthy to such an extent that any basic award and compensatory award would be reduced by 100% under ss.122(2) and 123(6) ERA 1996, and that it would have applied a 90% Polkey reduction in any event. No monetary award was quantified in this judgment; remedy and costs were left for separate determination if required.