Mr D Bailey v Design & Technical Services (UK) Ltd — 2023

Mr D Bailey was employed as a Machine Tool Services Engineer from 19 September 2011 until his summary dismissal on 19 March 2021. The claim arose from his use of a company vehicle and fuel card on 19 February 2021 for a 220-mile personal trip to Birmingham to collect golf clubs while he was furloughed during lockdown. At the start of the final hearing he withdrew the section 15 discrimination arising from disability claim and the section 26 disability-related harassment claim; the tribunal then allowed an amendment to add a reasonable adjustments complaint about not being allowed representation at the 10 March 2021 meeting.

The tribunal found that the 10 March 2021 meeting was presented to the claimant as a welfare meeting, but that Mrs Lamb had in fact intended to raise the vehicle and fuel-card issues and the claimant was not told in advance that misconduct would be discussed. It accepted that he was upset and crying when discussing his furlough-related stress, but found that when the discussion turned to the vehicle and fuel card he understood the questions and said twice that he hoped no one would notice the fuel-card use. The tribunal held that the subsequent disciplinary hearing and appeal were conducted within the band of reasonable responses, but the defect in the initial meeting was not cured on appeal.

The unfair dismissal claim succeeded because the dismissal process was unfair at the 10 March 2021 meeting, not because the respondent lacked a potentially fair reason. The tribunal found that the respondent had a genuine and reasonable belief that the claimant had knowingly used the company fuel card for a personal journey and had reasonable grounds to conclude that the conduct was dishonest and amounted to gross misconduct. It also found that the claimant would in any event have been fairly dismissed on 18 March 2021 had a fair procedure been followed, so any compensatory award was reduced to nil under Polkey and the claimant was found wholly responsible for the dismissal, leading to 100% reductions of both compensatory and basic awards.

The reasonable adjustments claim failed because the tribunal found that, at 10 March 2021, the claimant had low mood, sleep loss and tearfulness linked to flexible furlough and lockdown, but not a mental impairment for Equality Act purposes and not a long-term adverse effect. It also found that the respondent knew he was struggling, but not that he had a disability or that any condition was likely to be long-term. The wrongful dismissal claim failed because the claimant's conduct was held to amount to gross misconduct justifying summary dismissal, and no compensation was awarded on the failed discrimination claims.