Mr S Donald v Safeguard Security (NE) Limited — 2019

The tribunal found that Mr Donald was dismissed for conduct under section 98(2) of the Employment Rights Act 1996. It accepted that Safeguard Security (NE) Limited had a reasonable belief, based on the investigation by Mr Johnson and the external accountants, that pension enrolments had not been made for some employees and that deductions had been taken from wages but not paid over to NEST. The tribunal also found that the conduct amounted to gross misconduct in the circumstances of this small company and the role Mr Donald held, although it accepted that he had not acted deliberately.

The dismissal was nevertheless unfair because the procedure was deficient. The tribunal found that Mr Donald was not given all of the material considered during the investigation, including certain spreadsheets and further accountant materials, and that Mr Johnson did not reconvene the disciplinary hearing after carrying out further enquiries with the external accountants. It also noted concerns about the overlap between the people involved in the investigation, the disciplinary hearing and the appeal, but did not treat that as bias on the facts of this case.

The unfair dismissal claim was therefore upheld, but the tribunal held that Mr Donald would have been fairly dismissed in any event and that he contributed 100% to his dismissal. It therefore awarded nil compensation.