Mr N Pullar First v Second Respondent Third Respondent Tangerine Holdings Limited Vetplus International Limited Vetplus Limited — 2021

The claimant, a divisional director, was dismissed after the first respondent concluded that he had been involved in setting up a competing pet-chews business and had not been truthful about that activity. The tribunal accepted that the 4 June 2019 meeting, at which David Haythornthwaite told the claimant he could resign or be fired, was a pre-termination negotiation within section 111A ERA but held that the wording was improper within section 111A(4), so evidence about the meeting could be considered. Even so, the tribunal found that Mr Haythornthwaite’s mind was not closed and that he did not influence the later investigation or disciplinary decision.

On the substance of the misconduct allegations, the tribunal found that the claimant had entered confidentiality agreements using the alias Neil Blackwood, had hidden those agreements from the respondent, had deleted material from his laptop on 7 May 2019, had not been candid about recent contact with Philippa Chadwick, and had been involved in steps towards a competing business in 2017. The tribunal accepted that the respondent honestly believed these matters showed dishonesty and a breach of trust, and it also found that the claimant’s conduct before dismissal justified refusing a basic award under section 122(2) ERA.

The dismissal was nevertheless unfair under section 98(4) ERA because the respondent did not carry out as much investigation as was reasonable in all the circumstances. The tribunal said the claimant should have been given the additional Zentek material obtained shortly before the disciplinary hearing, including the reference to 37,000 deleted files, and should have been told that allegation 2 covered deletions on 7 May 2019 before and after the meeting with DH and LM. The tribunal also held that the respondent should not have prevented the claimant’s chosen companion from attending the 12 July 2019 hearing.

Although the dismissal was unfair, the tribunal held that the claimant would have been fairly dismissed if the procedure had been fair, so it made no compensatory award under section 123(1) ERA. The separate section 10 Employment Relations Act 1999 claim succeeded because the claimant was not allowed to be accompanied by his chosen companion, but the monetary remedy under section 11(3) was not fixed in this judgment. The tribunal noted the statutory cap of two weeks’ pay, with a capped week’s pay of £525, and listed a later remedy hearing.