Mr S Tighe v J & J Ormerod plc — 2019

The tribunal found that the claimant, Mr S Tighe, was dismissed for misconduct after smoking on the respondent’s site in a non-designated area. The respondent had a longstanding no-smoking policy, the claimant had previously signed memos acknowledging it, and the tribunal found he would have been aware that smoking in the location where he was found was prohibited. The tribunal also accepted the respondent’s evidence that the policy had good reasons, including fire risk, the presence of flammable materials, and insurance implications.

The tribunal accepted that there were some possible grey areas in the wording and application of the smoking policy in other locations, but found that this did not assist the claimant on the facts found. It concluded that there was no evidence that the respondent had treated employees inconsistently where smoking had occurred clearly on the factory site, and it accepted the respondent’s explanation of the photograph relied on by the claimant as genuine. The tribunal found that the respondent had a genuine belief in misconduct and reasonable grounds for that belief.

On procedure, the tribunal held that Mr Eatough carried out the investigation and disciplinary hearing, which was a flaw in light of the ACAS Code, and that he had effectively closed his mind to any sanction other than dismissal before hearing from the claimant. However, those defects were held to have been substantially cured on appeal because Mr Greenhalgh conducted a full rehearing, allowed the claimant to raise mitigation and inconsistency, and considered the points raised before upholding dismissal. Applying section 98(4) ERA 1996 and the Burchell test, the tribunal held that the dismissal was within the range of reasonable responses and therefore fair.

The claimant’s separate holiday pay claim was not pursued and was dismissed. No monetary award was made, and the tribunal did not need to consider Polkey or contributory fault because it found the dismissal fair.