Mr G Brown v TT Construction Northern Ltd — 2022

The tribunal found that Mr Brown was dismissed on 20 April 2021 and that the reason for dismissal was his conduct on 19 and 20 April 2021. It accepted Mr Taylor's evidence that Mr Brown called him a "lying little cunt", threatened to "knock your fucking head off", advanced towards him in an aggressive manner, and remained aggressive the following day. The tribunal rejected the claimant's case that dismissal was driven by an ulterior reason connected with the cannabis farm or by resentment about his reduced availability, and held that the reason for dismissal fell within s.98(2)(b) ERA 1996.

Although the tribunal accepted that Mr Taylor genuinely believed the misconduct had occurred and had reasonable grounds for that belief, it held that the dismissal was unfair because the respondent carried out no investigation and no disciplinary hearing, and gave Mr Brown no opportunity to respond before dismissal. The tribunal also found that the later appeal process was not meaningful because Mr Taylor said he would not have reinstated the claimant in any event. Taking account of the small size of the business and Mr Taylor's direct knowledge of the events, the tribunal nevertheless concluded that a reasonable employer would have investigated, considered suspension, heard mitigation, and then decided on sanction.

On the Polkey analysis, the tribunal held that even if a fair process had been followed, Mr Brown would probably still have been fairly dismissed within about two weeks because Mr Taylor had personally witnessed the incidents and the claimant's case was a denial rather than mitigation. It also found that the claimant's conduct justified reducing any basic and compensatory award by 100%. Separately, the respondent did not contest that no written statement of particulars had been provided, and the tribunal noted that Mr Brown may be entitled to an award under s.38 Employment Act 2002, but remedy was reserved. The holiday pay complaint was dismissed upon withdrawal by the claimant.