Mr J Preston v John Allen — 2022

Mr Preston was dismissed on 9 September 2020 after a dispute with John Allen about annual leave and the language used during that exchange. The tribunal found that he had sworn at Mr Allen, a director, in front of other staff, and that the disciplinary process treated the matter as serious insubordination. It also found that the respondent had initially proceeded to a hearing without a fuller investigation and that Mr Allen, who had been involved in the incident, had arranged the witness statements and instructed Mr Middleton, which gave the process an appearance of unfairness.

Those procedural concerns were held to be cured by the appeal, which Mr Peter Allen conducted. The tribunal accepted that the respondent had investigated the claimant’s appeal points, including the alleged omissions from the notes, the complaint about confidentiality, the allegation that he was not given a chance to apologise, and his argument that there was no formal holiday-booking procedure. The tribunal found that some of the missing material had in fact been investigated, that the incomplete minutes did not affect the outcome, and that the appeal addressed the earlier defects.

On the substance, the tribunal found that the claimant’s conduct could properly be characterised as serious insubordination, or alternatively as swearing and obscene language falling within misconduct under the respondent’s procedure. Applying the BHS v Burchell test, the tribunal held that by the end of the appeal the respondent had carried out sufficient investigation and had reasonable grounds for its conclusion. It also held that dismissal was within the range of reasonable responses under s.98(4) ERA 1996 and Iceland Frozen Foods. Although the tribunal considered that by the appeal the claimant had in effect apologised, it still concluded that dismissal remained a reasonable sanction in the circumstances, so the unfair dismissal claim failed.