IN PERSON For the v Respondent — 2019

The tribunal dealt only with an unfair dismissal claim. At the start of the hearing the claimant said he wished to bring a discrimination complaint, but the tribunal found that no discrimination claim had been pleaded on the ET1 or in the statement of case and that any such claim would in any event have been out of time. The claimant then agreed that he was pursuing unfair dismissal only.

The respondent relied on misconduct arising from an incident on 5 February 2018. The tribunal found that the claimant overheard his manager listing alleged errors, then swore at colleagues, threw a pen, kicked a broken bin, and damaged it further. The incident was captured on CCTV and at least part of it was seen by a customer. The tribunal accepted that the claimant apologised the next day and offered to pay for the bin, but it found that the dismissal decision was based on the incident itself.

On procedure, the tribunal applied the Burchell approach and section 98 ERA 1996. It found that the respondent carried out a reasonable investigation: witnesses were interviewed, statements were taken, and the CCTV was viewed. Although the claimant was given little notice of the investigatory meeting and was not shown the CCTV before dismissal, the tribunal held that those matters were not enough to make the investigation or overall procedure fall outside the range of reasonable responses. It found that the claimant received the witness statements before the disciplinary hearing, that he understood dismissal was a possible outcome, and that the appeal process was not rendered unfair by the delay or by his own failure to follow the correct appeal route.

On sanction, the tribunal accepted that the dismissal may have been somewhat harsh in light of the claimant’s previous service and that the employer’s process was not best practice in every respect. However, it held that the decisive question was whether dismissal fell within the range of reasonable responses under section 98(4) ERA 1996. The tribunal found that it did: the claimant had lost control, damaged property, and done so in front of customers. It therefore held that the claimant was fairly dismissed and there was no need to consider Polkey deduction or any award.