Mr S Smallwood v Barrie Jones (Upholsterers) Ltd — 2021

Mr S Smallwood brought claims for unfair dismissal and wrongful dismissal against Barrie Jones (Upholsterers) Ltd. The respondent said the dismissal arose from conduct: concern that the claimant had moved his own furniture business beyond the scope of the permission given in 2017, the incident on 21 August 2020 when he raised his voice to Ian Walker, and the removal of a dashcam from the company vehicle. The tribunal found that Mr Walker genuinely believed misconduct had occurred, but the scope of the claimant’s permission had never been clearly defined in writing and the respondent’s investigation was limited.

On unfair dismissal, the tribunal held that the respondent did not act reasonably in treating the alleged conduct as sufficient reason to dismiss. It found there was insufficient evidence that the claimant was actually competing with the respondent, that clause 18 of the contract did not apply because it related to the post-termination period, and that clause 26 concerned employment with others rather than the claimant’s own business. The tribunal also found that the 21 August incident did not justify a finding of aggression or insubordination on the evidence, and that the dashcam allegation was not properly investigated or fairly put to the claimant in writing. The disciplinary process was further found to be flawed because Ian Walker was too closely involved as investigator, decision-maker and main witness, and the appeal stage added new matters and did not cure the earlier defects.

The tribunal found that the respondent breached the ACAS Code of Practice. It held that there was no Polkey reduction because there was no evidence the claimant would have been dismissed anyway under a fair process. It did, however, find contributory conduct: the claimant should have sought approval before moving the business from home to a workshop and changing the SIC code, he admitted shouting at Mr Walker, and he removed the dashcam without telling the respondent. The tribunal therefore ordered a 50% reduction to both the basic award and the compensatory award, and a 15% uplift for ACAS breaches, but the extracted text does not record the final monetary calculation.

On wrongful dismissal, the tribunal reached its own factual conclusions and held that the claimant had been authorised to run a small, non-competing business from home, that moving furniture into a portacabin during lockdown was not proved to be competition with the respondent, and that the 21 August incident and dashcam removal did not amount to repudiatory breaches of contract. It therefore found that the claimant was not guilty of gross misconduct and that summary dismissal was not justified.