Mr S J Graham v Oakenclough Buildings Limited — 2020

Mr S J Graham, a shed installer employed by Oakenclough Buildings Limited since 16 June 2008, was dismissed on 2 August 2019 following a 5 July 2019 incident at the Catterall site involving Ms J Brady. The respondent relied on gross misconduct, and in the alternative said there had been a breakdown of trust and confidence; the claimant appealed on 13 August 2019 and the appeal was rejected on 6 September 2019.

The tribunal found that the real reason for dismissal was conduct, not some other substantial reason. It accepted that Mr G Brady genuinely believed the claimant had been guilty of misconduct and that there were reasonable grounds for that belief based on the evidence from Ms J Brady, Mr C Brady, Ms Brady's daughter, Ms L Tyson and Ms R Mufema, together with the investigation materials. It rejected the claimant's contention that the evidence had been collusive or that the dismissal was for an ulterior reason.

The dismissal was nevertheless unfair because Mr G Brady had effectively reached a concluded view about what had happened before the claimant had been given a proper opportunity to put his case at the 1 August 2019 investigatory and disciplinary meeting. The tribunal relied on the ACAS principle that employees should be told the basis of the problem and allowed to respond before decisions are made. It held that, if a fair process had been followed, the claimant would still have been dismissed, so the compensatory award was reduced by 100% under Polkey.

The tribunal also found contributory conduct under sections 122(2) and 123(6) of the Employment Rights Act 1996 and reduced both the basic award and the compensatory award by 100%. The written judgment records those reductions but does not state a quantified final monetary award.