Mr J Devoy v Eriks Industrial Services Limited — 2019

The claimant, Mr J Devoy, was a regional account manager who became involved in organising a pump repair job at the Centre Parcs site near Penrith. The tribunal found that he coordinated the work, pressed for it to proceed when the original engineer could not attend, and became involved in some manual assistance on site, but he was not engaged as the technical engineer responsible for the work. The tribunal accepted that there were failures around RAMS, permits, isolation and safe working, and that the site was left in an unsafe condition, but it also found that the claimant was not involved in any technical engineering work.

The respondent dismissed the claimant summarily for gross misconduct after a disciplinary hearing and appeal. Applying section 98(1) and section 98(4) of the Employment Rights Act 1996, the tribunal held that conduct was the reason for dismissal and that the respondent was entitled to conclude that the claimant had committed a disciplinary offence. It also found that the disciplinary and appeal process was fair and ACAS-compliant, including because the claimant had a full opportunity to answer the allegations and the appeal corrected any procedural concerns.

The tribunal nevertheless found that summary dismissal was outside the band of reasonable responses. It held that the claimant’s conduct did not amount to gross misconduct but was instead an error of judgment in failing to anticipate the consequences of what he was doing. The tribunal considered that the reasonable range of responses extended from training to dismissal with notice, but not to summary dismissal. It therefore upheld the unfair dismissal complaint, while finding that dismissal with notice would have been fair.

On remedy, the tribunal found under section 122 that it was not just and equitable to make a basic award because of the claimant’s conduct and the fact that he would have been dismissed in any event. It limited compensation to the loss flowing from dismissal without notice, but the parties then agreed the wrongful dismissal award at £3,377.82, representing notice pay. That award extinguished any compensatory award that would otherwise have been made for unfair dismissal, and the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 did not apply because the claimant had not received a relevant benefit.