Mr B Graves v Concord lifting Equipment Limited — 2023

Mr B Graves was employed by Concord Lifting Equipment Limited as depot manager from 1 June 2004 until his dismissal on 6 June 2022. The respondent dismissed him for gross misconduct, relying on an allegation that he had taken money from the company in connection with a September 2018 payment of £400 from Links Scaffolding into his personal bank account. The tribunal accepted that Mr Kerrison genuinely believed the claimant had been guilty of theft, but it found that the respondent did not carry out a fair investigation, did not warn the claimant of the case against him before dismissal, and did not give him a proper opportunity to answer the allegations.

The tribunal held that the appeal did not cure those defects. By the appeal stage the claimant and his representative had been given much of the respondent's evidence, but they did not engage with the theft allegation and instead focused on procedural objections. The tribunal found that the appeal officer should nevertheless have ensured that the substantive theft issue was investigated and ventilated. On that basis, the dismissal was procedurally unfair and the respondent also lacked reasonable grounds for dismissal when it confirmed the decision on appeal. The tribunal refused to make a Polkey deduction because the case involved a wholesale procedural failure and it would have been speculative to reconstruct what would have happened in a fair process.

The disability discrimination claim, pleaded as direct associative disability discrimination, failed. The tribunal accepted that the claimant's son Chester was disabled and that the respondent knew this, but it found that the relevant acts were not because the claimant was the father of a disabled child. Those acts were the April 2021 instruction that salaried staff should book personal appointments as annual leave, the refusal to put the claimant back on furlough, the instruction that he return to work at the depot, and the dismissal. The tribunal found those decisions were taken because the respondent wanted staff back at work and, in the case of dismissal, because Mr Kerrison believed the claimant had stolen from the company.

Remedy for unfair dismissal was agreed and not challenged. The tribunal awarded a basic award of £8,850.50 and compensation of £13,150.41, made up of £500 for loss of statutory rights, £653.33 for loss of pension and £11,997.08 for loss of net salary, producing a total award of £22,000.91. The claimant said he had not received state benefits triggering recoupment, and the tribunal proceeded on that basis.