Mr Gareth Marsden v Felt Products (Northern) Limited — 2024

Employment Judge Shotter, sitting alone at Liverpool, found that the claimant Mr Gareth Marsden was unfairly dismissed by Felt Products (Northern) Limited following his summary dismissal on 5 May 2023. The respondent's position was that the claimant had failed to follow instructions to stop taking orders from a customer that the managing director, Stuart Oldfield, said were fraudulent. On the balance of probabilities the Tribunal preferred the claimant's evidence that no such instruction had been given and that the respondent had no policies or procedures governing telephone orders. The Tribunal found Stuart Oldfield to be an inaccurate historian whose evidence could not be relied on, and noted that no investigation, disciplinary process or appeal had been carried out before the summary dismissal, in breach of the ACAS Code of Practice.

Applying the test of fairness in section 98(4) ERA 1996, the Tribunal concluded that the dismissal fell outside the band of reasonable responses. On the Polkey question, the Tribunal found there was no chance the claimant could or would have been fairly dismissed had a fair procedure been followed. On contributory fault, applying Nelson v BBC (No.2) and Steen v ASP Packaging Ltd, the Tribunal held the claimant's conduct was not culpable or blameworthy and declined to reduce either the basic or compensatory award.

The Tribunal also held that the claim for wrongful dismissal was well-founded, finding that the claimant's conduct did not amount to a repudiatory breach of contract and that summary dismissal without notice was therefore unlawful. Both claims succeeded at the liability stage and were adjourned to a remedy hearing, with case management orders made for the exchange of schedules of loss and listing.