Mr T McNamara v CM Faraday Building Contractors Limited — 2021

Mr McNamara worked for CM Faraday Building Contractors Limited as a Builder/Labourer until his dismissal, which took effect on 9 November 2019 when he read the dismissal letter. The tribunal found that the principal reason for dismissal was misconduct, namely the events of 7 November 2019 and Mr Faraday’s perception of Mr McNamara’s attitude generally. It held, however, that the dismissal was unfair under section 98(4) ERA 1996 because there had been no investigation, no disciplinary meeting, no explanation of the case, and no opportunity for Mr McNamara to respond before the dismissal decision was made.

The tribunal found that the written warning dated 20 June 2019 and the final warning dated 11 October 2019 were both imposed without any disciplinary process and without any right of appeal being explained to Mr McNamara. The first warning arose from his ill-health absence and late notice of injury after a holiday, rather than from lateness as described in the letter. The second warning related to punctuality, but the tribunal found that no procedure had been followed and that, had a procedure been followed, Mr McNamara would have been able to explain the effect of his dyslexia on his timekeeping.

On the events of 7 November 2019, the tribunal found that Mr McNamara became confrontational and said "come on then", but it did not accept that he was intimidating or threatening. It also found that robust language and swearing were commonplace in the workplace. The internal appeal did not cure the earlier defects: the tribunal found that Mr Faraday had predetermined the outcome, and that the appeal process introduced allegations that had not formed part of the original dismissal decision. Ms Mangera’s report stated that the same outcome would have occurred on a Polkey basis, which the tribunal treated as part of the remedy analysis rather than a basis for reversing the unfair dismissal finding.

The tribunal said that, had it been quantifying compensation at that stage, there would have been a 20% Polkey reduction, a 20% ACAS uplift, and a 25% reduction for contributory fault, with the basic award also reduced by 25%. This judgment did not fix any monetary sum. The unlawful deduction from wages claim, the annual leave/holiday pay claim, and the breach of contract claim were all dismissed, and the tribunal recorded that the claimant’s representative had accepted that the claimant had been paid what was due on the money issues.