Mr R G Harper v Ground Control Limited — 2021

Mr Harper was employed as a business development manager by Survey Roofing Group and transferred to Ground Control on 1 April 2019. The tribunal found that he had been offered a separate ex-gratia payment of £30,000 in late 2018, alongside revised incentive arrangements, and that the parties expected him to remain in employment and continue contributing to the business. After he prepared a report in spring 2019 about morale and concerns within the former SRG sales team, he was suspended on 24 June 2019 following an anonymous allegation from Sally-Ann Twydell that he had suggested she might be interested in joining a rival roofing company.

The tribunal found many flaws in the respondent's handling of the allegation. Mr Hollyer did not speak to Ms Twydell to test her account or her reasons for anonymity, the claimant was not told the date, time or place of the alleged conversation, and he was not given all of the witness material relied on in the disciplinary process. The tribunal also found that several of the claimant's statements during suspension and investigation, including his reference to stepping outside with the person who made the allegation, were ambiguous and were interpreted too strongly against him. It concluded that the respondent had not carried out as much investigation as was reasonable in the circumstances and did not have a genuine belief on reasonable grounds that the claimant had committed gross misconduct.

The dismissal decision of 5 August 2019 and the appeal outcome of 2 October 2019 were both found to be unfair. The tribunal held that the real reason for dismissal was not properly established misconduct, but the directors' view that the claimant was disloyal or destructive after the change in business direction and after he had submitted his report. The unfair dismissal claim succeeded, and the wrongful dismissal/breach of contract claim also succeeded because the respondent did not prove gross misconduct sufficient to justify summary dismissal.

The respondent's counterclaim for clawback of the £30,000 ex-gratia payment failed. The tribunal found that the payment was not made under the LIS, that the clawback provision was not a penalty, but that it was appropriate to imply a term preventing the respondent from relying on the clawback clause where it had unfairly dismissed the claimant and breached his contract. Quantum was not determined in this judgment and was left to a later remedy hearing.