Mr J Wilhelm v Stoodley Vehicle Auction Ltd — 2020

Mr Wilhelm had worked for the respondent since 2010 and later became foreman with access to a company van. Relations deteriorated in late 2018 and 2019 over pay and the van, and the immediate incident before dismissal was his refusal to make a bank run on 13 July 2019, which he instead delegated to other employees. He also covertly recorded the short suspension meeting with Mr Stoodley, after which he was suspended and then dismissed by Mr McGowan and Mr Stoodley for gross misconduct.

The tribunal found that the reason for dismissal was conduct, not redundancy. It rejected the redundancy argument because the respondent's need for the foreman work had not ceased or diminished, and the work continued to be covered after dismissal, including by a later internal appointment. Applying s.98(4) ERA 1996 and the Burchell line of authority, the tribunal held that the respondent did not have a genuine and reasonable belief in misconduct, did not carry out a reasonable investigation, and did not give Mr Wilhelm a proper opportunity to answer the allegations or appeal.

The tribunal also found that dismissal was outside the band of reasonable responses. It noted that the respondent's own handbook and the ACAS Code were not followed, that the claimant had a long service history and a clean disciplinary record in practical terms, and that the incident on 13 July 2019 was at most a matter that might have justified a warning. No Polkey reduction or contributory fault deduction was made, because the tribunal was not satisfied that a fair dismissal would have occurred in any event and was not prepared to find that the refusal to do the bank run was culpable on the evidence before it.

The claim for breach of contract in relation to notice pay succeeded, and the tribunal also stated that the wrongful dismissal claim succeeded. The amount of compensation for the unfair dismissal claim and the amount of notice pay were left to a remedy hearing listed for 30 April 2020. The redundancy payment claim failed.