Imtiyaz Seth v Network Plus Services Limited — 2023

The claimant, Imtiyaz Seth, was dismissed on 5 October 2022 for gross misconduct after a dispute about whether he had been instructed by Kenny Saving to return to the Ludlow Avenue site and about how his working time was recorded. The tribunal accepted that the principal reason for dismissal was conduct and that Employment Judge Thompson genuinely believed Mr Saving had given the instruction and that the claimant had heard it. It also accepted that the claimant knew the other engineers were returning to site and should have clarified matters with Mr Saving.

The dismissal was nevertheless found to be unfair under section 98(4) ERA 1996. The tribunal held it was unreasonable that Sophie Cluksy was not interviewed at any stage, even though phone records showed the claimant had called her at 5.58pm and she could have corroborated his account. It also found that Mr Saving should not have remained the investigating officer once the claimant disputed his account, because that meant there was no real scrutiny of the key issue. The tribunal rejected the respondent’s case that the matter became gross misconduct because the claimant was dishonest when, later in the process, he said he may have misheard Mr Saving; the tribunal found that explanation amounted to a possible miscommunication rather than dishonesty. No Polkey reduction was made.

On remedy-related issues, the tribunal found contributory fault and reduced both the basic award and compensatory award by 40% because the claimant’s failure to clarify the instruction was blameworthy. It also applied a 15% uplift to the compensatory award under section 207A of TULRCA 1992 because the ACAS Code had not been followed, particularly because necessary investigations were not carried out. A remedy hearing was listed because no monetary award was quantified in this judgment.

The breach of contract claim for notice pay also succeeded. Applying the contractual test for summary dismissal, the tribunal held that the miscommunication about whether the claimant had to return to site was not conduct so serious as to amount to a repudiatory breach of contract. The respondent was therefore not entitled to dismiss without notice on the facts found.