Mr C McCarthy v Adam Recruitment Limited — 2019

Mr C McCarthy was employed by Adam Recruitment Limited as a Senior Recruitment Consultant and was dismissed for gross misconduct on 28 November 2018 in his absence. The respondent relied on four allegations: use of a personal Microsoft Word account on his work laptop to work on a business plan called "Hive", a visit to Andrew Ferguson at Lloyds Bank during working time, alleged sharing of client information with Mr Ferguson, and internet use on non-work websites. The tribunal found that the claimant's dismissal was later upheld on appeal, although the appeal was also conducted by Mr Gahagan, who had commissioned the investigation and chaired the original disciplinary process.

On unfair dismissal, the tribunal accepted that the respondent genuinely believed there had been misconduct and had reasonable grounds for that belief as to allegations (a) and (b), but not as to allegations (c) and (d). It found that the respondent's investigation was not reasonable because the covert monitoring evidence from Teramind was not disclosed to the claimant in advance, the hearing was convened at very short notice, the claimant was not provided with the full disciplinary material before the first hearing, and the screenshots relied on for the internet allegation did not clearly identify the sites or duration of use. The tribunal held that these procedural failures made the dismissal unfair.

Applying Polkey v A E Dayton Services Limited, the tribunal found that if a fair procedure had been followed any dismissal would have been delayed by two months, but that there remained an 80% chance the claimant would still have been dismissed for conduct. It therefore reduced compensation by 80% for Polkey and further reduced the compensatory award by 50% under s.123(6) ERA 1996 and the basic award by 50% under s.122(2) ERA 1996 for contributory conduct. The tribunal found the claimant had attended the Lloyds meeting to discuss his own business plan with Mr Ferguson, which was in competition with the respondent, but it was not satisfied that he had disclosed confidential information or breached the internet policy in the way alleged.

On wrongful dismissal, the tribunal held that the claimant's conduct in attending the meeting about his own business was a repudiatory breach of the express contractual obligation to devote his time, attention and abilities to the respondent's business and not to be interested in another business while working for the company. On that basis, the respondent was entitled to dismiss him summarily without notice.