Mr R Cifonelli of Counsel For the v Respondent — 2020

The claimant worked for Burgess Glass Ltd from 24 May 2010 and was promoted to glass cutter/glazier in 2015. The tribunal accepted that there had been a series of errors in 2018 and January 2019, including the December 2018 incident at Heath Park when a large double-glazed unit was moved against instructions and broke, but it found that these matters had not been treated as disciplinary matters at the time and that the respondent's disciplinary procedure envisaged warnings for performance or conduct issues.

On 10 January 2019, during a heated telephone call about Heath Park and mirror orders, Mr Burgess told the claimant to get out of his business, said he was not going to be paid, and wanted him out for two weeks. The tribunal found that Mr Burgess had decided to dismiss the claimant at that point and that the real reason for dismissal was the claimant's request to be told in writing what was happening. That was not a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996, and the tribunal found there had been no serious loss of trust and confidence.

In the alternative, if the reason for dismissal was the December incident and the alleged performance errors, the tribunal held that the respondent's characterisation of those matters as gross misconduct fell outside the range of reasonable responses. It found the errors were performance issues rather than misconduct, no proper prior warning had been given, the investigation and disciplinary process were dominated by Mr Burgess and had already been framed around gross misconduct, and no reasonable employer would have dismissed for those reasons. The tribunal rejected Polkey and contributory conduct deductions, held that the claimant's decision not to appeal was not unreasonable, and listed the case for a remedy hearing.