Ms Anna Gut v Community Foods Limited — 2020

Ms Anna Gut was dismissed on 14 October 2019 after a 27 September 2019 canteen confrontation with Karol Serwatka. The tribunal accepted that she approached him while he was on a break, raised her voice and used abusive language, and that the transcript of the conversation was accurate. It found, however, that she did not hit him and that a reasonable person in his position would not have regarded her as threatening physical violence. The tribunal also accepted that the dismissal was for misconduct and that Mr Trevor Shaul genuinely believed Ms Gut had been guilty of threatening behaviour and verbal abuse.

The unfair dismissal claim succeeded because the procedure was found to be unfair in several respects. The tribunal held that Ms Gut should have been given Mr Serwatka’s interview notes and the audio recording before the disciplinary hearing, because both were relevant to the allegation that she shouted and threatened him. It also held that Mr Shaul took into account an undisclosed suggestion that this was not the first time she had behaved in that way, and that Mr David Gray’s appeal letter failed to deal with the specific grounds of appeal that Ms Gut had raised. The tribunal nevertheless found that dismissal itself was within the range of reasonable responses, so the unfairness was procedural rather than substantive.

On remedy, the tribunal found contributory conduct and assessed a 50% reduction to both the basic and compensatory awards, and also found a 60% Polkey reduction to the compensatory award because there was a 40% chance that a fair process would have resulted in a sanction short of dismissal. It found no failure to comply with the ACAS Code of Practice, so there would be no uplift on that basis. Remedy was not finally determined in this judgment; the tribunal directed that a remedy hearing be listed.

The wrongful dismissal claim also succeeded. Applying the contract law test for fundamental breach, the tribunal held that the incident was an isolated event, that there was no real risk of repetition, that the coarse language used by both employees had to be seen in context, and that the words Ms Gut used were not in fact taken literally as a threat of immediate physical violence. It therefore held that the conduct did not amount to a fundamental breach of contract and that she was entitled to notice pay, with the amount to be decided at the remedy hearing.