Mr N Davies, Counsel For the v Respondent — 2020

The claimant had worked since 10 October 1988 as a caretaker/premises manager at King’s Oak School and lived in tied accommodation. The only claim proceeding was unfair dismissal arising from a 20 December 2018 incident involving a pupil. The tribunal accepted the CCTV evidence showed the claimant came out of his office, remonstrated with the pupil over damage to a door, barged into him, and then grabbed him around the neck or shoulder before staff intervened. It also accepted that the claimant had only half a day of training on managing pupil behaviour, despite a certificate suggesting a full day. The disciplinary panel later upheld the allegations of physical assault and putting other staff at risk, but not the allegation that the claimant had sworn, and dismissed him summarily for gross misconduct.

Applying section 98 ERA 1996 and authorities including Abernethy and Jhuti, the tribunal found the respondent had proved misconduct was the genuine reason for dismissal and rejected the claimant’s case that the dismissal was engineered for another reason. On the Burchell approach and the range of reasonable responses test, it accepted that the belief in culpability was genuine and that the dismissal procedure was otherwise thorough, but held that the investigation fell outside the reasonable range because the HR plan recorded a suggestion that further evidence should be gathered 'against' the claimant rather than neutrally clarified. The tribunal placed weight on the claimant’s very long service and the especially severe consequence of losing both his job and tied home.

For Polkey purposes, the tribunal found that a fair investigation would still have led to dismissal because the CCTV was the crucial evidence and the disciplinary panel would have dismissed in any event. It held that dismissal remained within the range of reasonable responses even taking account of the claimant’s length of service, character evidence, alleged provocation, and training issues. The tribunal therefore found the dismissal unfair, but reduced both the basic award under section 122(2) ERA 1996 and any compensatory award under section 123(6) ERA 1996 by 100% for contributory conduct, and the judgment does not quantify a monetary award.