1) Mr B Bylett 2) Mr P Brocklehurst 3) Mr L Blainey 4) Mr E Farrell 5) Mr B Beatty 6) Mr M Morris v Eurotunnel Services Limited — 2020

The tribunal considered six unfair dismissal claims arising from a disciplinary process following allegations of theft of waste batteries and distribution of sale proceeds within the Power Supply Team. It set out the unfair dismissal framework under s.98 ERA 1996, the range of reasonable responses test and the Burchell guidelines, and found that the Respondent had carried out a very substantial investigation before dismissing the Claimants for gross misconduct. The tribunal also identified the Polkey principle as relevant to remedy for the claimants whose unfair dismissal claims succeeded.

The unfair dismissal claims of Mr Bylett, Mr Brocklehurst and Mr Blainey succeeded. The tribunal accepted that the Respondent had a genuine belief in misconduct, but held that its belief that these three Claimants knew of the thefts and were part of a coordinated cover-up was not objectively reasonable on the evidence, particularly where the CCTV material was relied on heavily. The tribunal accepted that it was reasonable to find that each of them had taken part in victimising T after he raised the issue, but concluded that dismissal on the combined findings still fell outside the range of reasonable responses. Their unfair dismissal claims were therefore upheld and listed for a remedy hearing.

The unfair dismissal claims of Mr Beatty, Mr Farrell and Mr Morris were dismissed. The tribunal held that it was reasonable for the Respondent to believe that Mr Beatty had received £50 knowing it came from stolen batteries, failed to report the criminal act, took part in a coordinated cover-up and participated in the ostracism of T. It similarly held that Mr Farrell knew the source of the money, failed to report the criminal act, joined the cover-up and took part in victimising T. In Mr Morris's case, the tribunal held that it was reasonable to believe he knew of the intended theft, failed to report it, did not protect the whistleblower, breached confidentiality and played a part in the cover-up and victimisation. The tribunal concluded that dismissal was within the range of reasonable responses for each of them and that the appeals did not alter that conclusion.

The first four Claimants also brought wrongful dismissal claims. Mr Farrell's claim failed because later police material, together with the tribunal's findings, supported that he knew of the arrangement and the source of the money and failed to report a criminal offence, amounting to a repudiatory breach. Mr Bylett, Mr Brocklehurst and Mr Blainey's wrongful dismissal claims also failed, but for a different reason: although later police material supported their position on the theft allegations, the tribunal held that their treatment of T after his disclosure was sufficient to undermine trust and confidence and therefore amounted to repudiatory breach. No remedy was determined in this liability judgment for the successful unfair dismissal claims, which were left for a later hearing.