Mr M McKeswick v Bolton Brothers Ltd — 2019

The tribunal found that Mr McKeswick was dismissed by Bolton Brothers Ltd on 14 September 2018 because Mr Bolton believed he had made prank telephone calls on 7 September 2018 and had disguised his voice. The tribunal accepted that the claimant had, in part, used the calls as a prank, but also found that he genuinely wanted Mr Dougherty to clean his machine. It rejected the Respondent’s account that the calls caused serious disruption or that the claimant had been given any fair process before dismissal.

On unfair dismissal, the tribunal held that the reason for dismissal was conduct and therefore potentially fair, but that the Respondent acted unreasonably under section 98(4) ERA 1996. Mr Bolton carried out no reasonable investigation, gave no advance warning of the allegation, did not provide the disciplinary procedure, and decided to dismiss immediately after the claimant denied misconduct. The tribunal found that the Respondent had no reasonable grounds for its belief at the time of dismissal and that the dismissal was outside the band of reasonable responses.

The tribunal also considered the final written warning issued in March 2018. It found that the warning had been imposed without investigation, without a hearing, without notice of any allegation, and without an appeal, and that Mr Bolton did not rely on it when dismissing the claimant. In the Polkey exercise, the tribunal held that there was no reduction because, even if a fair process had been followed, there was no evidence that the Respondent could and would fairly have dismissed the claimant once the flawed warning, the limited disruption, and the claimant’s 43 years' service were taken into account.

The tribunal did, however, make a 25% reduction for contributory conduct under section 123(6) ERA 1996, because the claimant had taken the opportunity to play a prank and then denied it. It then applied a 20% uplift under section 207A TULR(C)A 1992 for unreasonable failure to follow the ACAS Code. The final awards were £27,734.13 for unfair dismissal and £4,578.05 for wrongful dismissal, with a total award of £32,312.18 and a prescribed element of £11,747.43.