Mr Alan Henderson v Persimmon Homes Ltd — 2021

The tribunal found that Persimmon Homes dismissed Mr Alan Henderson for conduct, not because he had raised a grievance against Don Anderson. The decision maker, Mr John Archment, was satisfied on the evidence that the dismissal arose from the incidents on 26 June 2020 and the related holiday issue, and the tribunal accepted that Mr Archment put the earlier March 2020 investigation and the grievance out of mind when making his decision.

The tribunal accepted that Mr Henderson, a site manager, was found without a hard hat on an active site, swore at Karl Duffield during a director’s inspection, was smoking outside a designated area, and had issues with holiday authorisation. It held that Mr Archment had a genuine belief in misconduct on reasonable grounds and that the investigation was sufficient in the circumstances. The tribunal also found no material procedural unfairness, and that Mr Charles’s interventions at the disciplinary hearing, while a valid criticism in parts, did not create bias, apparent bias, or pre-judgment.

On fairness under section 98(4) ERA 1996, the tribunal held that dismissal was within the range of reasonable responses. It treated the PPE issue as sufficient on its own to justify dismissal, given Mr Henderson’s role and responsibility for site safety, and noted that the other allegations reinforced the overall conclusion. The unfair dismissal claim was therefore dismissed. The tribunal added that, if the claim had succeeded, it would have reduced compensation by 100% for contributory conduct because Mr Henderson worked as site manager without appropriate PPE and did not accept responsibility for that position.

The holiday pay claim also failed. Mr Henderson said he had been underpaid on termination because of alleged accrued leave, Saturday time off in lieu, and bank holiday entitlement, but the tribunal found no reliable evidence to support the asserted calculation or entitlement to carry-over at the rate claimed. It held that, on the figures available, he had accrued 16.33 days by termination, had taken 3 days in January 2020, and payment of 14 days was sufficient to discharge the respondent’s liability under the Working Time Regulations and the contract terms relied on.