Mr A Bohill Mr T Dickinson Miss N True v The Ashley Foundation — 2021

The claimant, Mr D Watson, brought a single claim of unfair dismissal arising from his summary dismissal on 10 August 2020. The tribunal identified the issue as whether the respondent, The Ashley Foundation, had a potentially fair reason for dismissal and whether dismissal was fair under section 98(4) of the Employment Rights Act 1996. The respondent relied on conduct, namely its belief that the claimant had acted in a physically aggressive manner towards a hostel resident and had breached its policies on aggression and challenging behaviour.

The tribunal found that the reason for dismissal was misconduct and rejected the claimant’s case that he had been dismissed for raising concerns about safety and staffing. It accepted that the dismissal decision was based on CCTV footage, the investigation meeting, the disciplinary hearing and the appeal, and that the dismissing and appeal officers genuinely believed the claimant had acted aggressively and had not been fully truthful about the incident. The tribunal also accepted the respondent’s evidence that the claimant was not suspended because the resident had been removed and staffing levels were an issue.

Applying the Burchell approach and the statutory fairness test, the tribunal held that the respondent had reasonable grounds for its belief and had carried out a fair investigation. It found that the claimant was given disclosure, an opportunity to respond, representation rights, and two adjournments of the disciplinary hearing at his request. The appeal process was also treated as fair, with the appeal officer said to have kept an open mind and considered lesser sanctions before deciding to uphold dismissal.

The tribunal concluded that dismissal was within the range of reasonable responses. It held that use of physical force against a resident could properly be treated as gross misconduct under the respondent’s disciplinary procedure, even though the claimant had no prior disciplinary record. The unfair dismissal complaint was therefore not well-founded and was dismissed. No remedy was awarded because liability was not established.