Mr C Adjei, Counsel For the v Respondent — 2017

The tribunal found that Rocketmill Ltd had genuine concerns about the Claimant's performance in the SEO department and the loss of client accounts, but it did not accept that the whole blame could reasonably be attributed to him without a proper performance process. The Claimant had been employed from 1 June 2010 under a service and shareholder structure under which his status as a good leaver or bad leaver affected the value of his shares, and the tribunal accepted that this background formed part of the dispute between the parties.

The tribunal held that the January to April 2016 process was not a reasonable or genuine investigation into performance. Eve Clennell of Eden HR was engaged on 8 January 2016, the Claimant was suspended on 24 February 2016, and the tribunal found there was no justification for suspending him on the terms imposed. It found that the investigation used loaded questions, did not interview relevant former SEO team witnesses, and failed to include the Claimant's 21 March 2016 explanation of the Incero server incident in the investigation report. The tribunal concluded that the process was intended throughout to secure the Claimant's dismissal.

On the Incero allegation, the tribunal accepted that the Claimant's conduct was suspicious and justified investigation, but it found that his motive was not malicious and that the conduct did not amount to gross misconduct. Applying Burchell and section 98(4) of the Employment Rights Act 1996, the tribunal held that the dismissal was unfair. It also held that the summary dismissal was not justified for wrongful dismissal purposes, because the conduct proved did not amount to gross misconduct. A remedy hearing was to be listed, so no monetary award was made in this judgment.