Mr C McKenzie v Gentoo Group Ltd — 2023

Mr C McKenzie was employed by Gentoo Group Ltd as a janitor from 2017. The respondent investigated concerns in 2022 that he had spent significant periods in the residents' room at Australia Tower and away from site, and that he did not attend Altrincham Tower daily as required. The investigation drew on CCTV transcripts, fob access records, and later witness evidence from other janitors and the supervisor. The claimant had a clean disciplinary record and a back injury, but the tribunal found that his explanations for the periods in question were often generic, varied over time, and did not satisfactorily account for the time recorded.

The tribunal accepted the respondent's evidence that it reasonably believed the claimant had committed misconduct and had reasonable grounds for that belief. It found the investigation reasonable, including the later appeal-stage witness interviews, which were conducted sequentially and shared with the claimant for comment. The tribunal also found the dismissal to be a reasonable response in the circumstances, noting the claimant worked alone and that the respondent needed to maintain trust and confidence in his attendance and performance of janitor duties. The tribunal rejected the claimant's argument that other employees were treated more leniently, finding the comparator relied on was not in truly parallel circumstances.

The tribunal held that the claimant's conduct amounted to gross misconduct. It found that the respondent was entitled to treat the conduct as a sufficient reason for dismissal under section 98(2) of the Employment Rights Act 1996, and that the conduct amounted to a repudiatory breach of contract for notice purposes. Both the unfair dismissal complaint and the breach of contract claim for notice pay were dismissed.