Mr R McKay v Evolution Football Coaching Limited — 2020

Mr R McKay was employed by Evolution Football Coaching Limited from September 2017 and later took on broader football/business development responsibilities. In June 2019 Mr Smith invited him to a disciplinary hearing on allegations including failure to manage HMRC and supplier debts, inaccurate mileage and fuel claims, and removal of a file from the company laptop. The claimant repeatedly asked for documents and further detail, but no material was provided in advance and the hearing was not reconvened after further enquiries were made.

The tribunal accepted that the respondent dismissed the claimant for conduct and that conduct was a potentially fair reason under s.98(2) ERA 1996, but it held the dismissal unfair under s.98(4) because the investigation was not reasonable and the procedure was not fair. The same person effectively investigated and heard the case, the claimant was not given the documents on which the allegations depended, and the appeal did not cure the defects because he still did not have the key material. The tribunal accepted that the claimant had done mileage and business development work, but it found the invoices he produced were inaccurate in the way they identified trips. It assessed contributory conduct at 40%, found a 30% chance he would have been fairly dismissed in any event, and applied a 10% uplift for failure to follow the ACAS Code.

On remedy, the tribunal awarded a basic award of £945 and a compensatory award of £9,634.58 for unfair dismissal, making £10,579.58 on that claim. It also upheld the notice-pay claim, finding that the conduct relied on did not amount to gross misconduct and that dismissal without notice was not justified; the concluding award on that claim is £2,022.04, despite the opening summary stating £2,222.04. The unlawful deduction from wages claim also succeeded because the deduction of £1,467.50 from wages on 1 July 2019 was not authorised, as the tribunal found the underlying expenses were owed to the claimant.