Mr Brady of Counsel For the v Respondent — 2019

Mr P Cooper, a gas service and heating engineer employed by Leicester City Council, was summarily dismissed on 16 November 2018 for gross misconduct after an inspection at Groveberry Walk exposed an unsupported flue in the loft space. The tribunal found that he was fully trained, knew the required inspection procedure, and nevertheless knowingly failed to carry out the visual check and incorrectly completed the CP12 gas safety record to show that the flue had passed. On that evidence, the tribunal held that the dismissal decision itself, taken by Mr Doyle, fell within the range of reasonable responses under section 98(4) ERA 1996.

The tribunal accepted that the Council had distinguished between pre- and post-training cases after the October/November 2017 safety briefings, and it rejected the argument that the employer acted unreasonably in limiting its look-back exercise to that period. It also accepted Mr Doyle's distinction between Mr Cooper and the comparators Mr Patel, Mr Pindar and Mr Lambatt, finding that Mr Patel's case involved a genuine error, that Mr Pindar's conduct pre-dated the training cut-off, and that Mr Lambatt was treated differently because Mr Doyle accepted his omission was an oversight rather than a deliberate failure.

The unfair dismissal claim succeeded because the appeal stage was handled unreasonably. The claimant's main appeal point was disparity of treatment, but the appeal panel declined to consider the comparator cases on the basis of data protection, without seeking consent or considering redaction or other ways of dealing with the information. The tribunal found that this meant the appeal had no real substance and that the Council's handling of the appeal was outside the range of reasonable responses, so the dismissal was unfair overall.

On remedy, the tribunal found that the claimant's net weekly loss was £114.47, but losses ended when he resigned from alternative employment in late January 2019 and then failed to mitigate for several months. It assessed the basic award at £5,334 and reduced it by 90% for contributory conduct to £533.40. The compensatory award started at £1,701.94, was reduced by 90% for contributory conduct and then by a further 90% on a Polkey basis to £17.02, and a 5% ACAS uplift was then applied. The total award was £577.94.