Mr J Thorpe v Hi Spec Facilities Services Limited — 2020

Mr J Thorpe was a mobile cleaner who had transferred to the respondent under TUPE in 2018. On 2 July 2019 he pushed a note through the door of a tenant, H, giving his telephone number and inviting her to call or add him on Facebook. After H texted him and said she had a partner, she complained to Your Housing Group, the client on whose contract he worked. The respondent suspended him and later dismissed him for gross misconduct following a disciplinary hearing and appeal.

The tribunal accepted that the respondent had a potentially fair reason for dismissal, being conduct, and that Bill Brown and Mark Hilton genuinely believed the claimant had posted the note through H’s door. It also accepted that the basic fact of the note being posted did not require further investigation. However, it found that the process was procedurally unfair because the notes of DB’s discussion with H were not given to the claimant until the disciplinary hearing and the later statement from H was not provided until the appeal hearing, contrary to good practice under the ACAS Code.

A more serious defect was that Mark Hilton had advised Bill Brown before the disciplinary hearing in a way that Bill Brown understood he had to dismiss the claimant if the allegation was proved. Mark Hilton then heard the appeal, meaning he was effectively reviewing a decision in which he had already been materially involved. The tribunal held that this lack of impartiality took the procedure outside the band of reasonable responses. It also held that dismissal itself was outside the band of reasonable responses because the claimant had not been shown any conduct rules, had not been told that giving out his number could amount to gross misconduct, the matter was a first offence, and the use of the term "stalking" was not justified on the evidence.

For remedy, the tribunal found the claimant had found new work within two weeks at at least the same pay, so it awarded compensation for two weeks’ loss of earnings plus a sum for loss of statutory rights. It calculated the basic award at £2,155.16 before applying a 10% reduction for contributory conduct, producing £1,939.64. The compensatory award was £615.76 for lost earnings plus £308 for loss of statutory rights, making £923.76. The Recoupment Regulations applied, with a prescribed element of £615.76 and the balance of £2,247.64.