Mr P Laxton v Southern Car Sales Limited — 2023

The tribunal found that Mr P Laxton was an employee of Southern Car Sales Limited for the purposes of the Employment Rights Act 1996. Although he was paid through his own company and was responsible for tax and national insurance, the tribunal held that personal performance, control, and mutuality of obligation were present: he worked a regular five-day week, had to seek leave, could not send a substitute, and was treated in practice like the other workers.

The dismissal was for conduct. The respondent investigated allegations that Mr Laxton had used abusive language towards another valet, Simon, including repeated use of offensive terms. The tribunal accepted Mr Mills' evidence that he genuinely believed the misconduct allegations and had reasonable grounds for that belief after speaking to Simon, Mr Wenham, and Mr Dodson, and after meeting Mr Laxton.

The tribunal held, however, that the process was procedurally unfair. Mr Laxton was not warned in writing of the allegations before the meeting, was not told that he could be accompanied, was not provided with the interview notes, and was not offered an appeal. For that reason, the unfair dismissal claim succeeded on procedural grounds, even though the tribunal found that dismissal for conduct was within the range of reasonable responses.

On remedy, the tribunal applied the Polkey approach and concluded that the outcome would have been the same even if a fair procedure had been followed, including if an appeal had been offered. The compensatory award was therefore limited to the period a fair appeal would likely have taken place, but the tribunal found Mr Laxton suffered no loss in that two-week period, so the compensatory award was nil. The tribunal also found his conduct wholly caused his dismissal and reduced the basic award to nil as well.