Philip Smith v Swann Engineering Group Limited — 2022

Mr Smith, a welder aged 58, was dismissed on 21 August 2020 after an altercation on 11 August 2020 with Kelvin Fleuty over a first-aid issue. The tribunal found that Mr Fleuty confronted Mr Smith in a small office, shouted at close quarters, and that Mr Smith pushed him away with his forearm; Mr Fleuty then punched Mr Smith in the jaw. The respondent treated the incident as gross misconduct and dismissed summarily without notice, and the appeal was rejected on 4 September 2020.

On unfair dismissal, the tribunal held that the respondent had a potentially fair conduct reason and a genuine belief in misconduct, with a reasonable investigation, so the Burchell test was met. However, the dismissal was still unfair under section 98(4) ERA 1996 because the decision-makers wrongly treated the gross misconduct policy as requiring automatic dismissal, failed to give proper weight to mitigation, and conducted an unfair appeal. Rachel Nash was refused as companion, and Mr Carlton wrongly thought a companion could only listen and could not present the appeal, question witnesses, or sum up. The tribunal found that a fair procedure would not have led to dismissal, so there was no Polkey reduction, but it reduced compensation by one third for contributory conduct because Mr Smith started the row and used force in pushing Mr Fleuty away.

The disability discrimination claim was limited to the appeal stage and was dismissed. A previous hearing had found that Mr Smith became disabled by mental health problems from 24 August 2020, after the dismissal, and the tribunal held it was unrealistic to say the appeal manager could have known that he was disabled or that his condition would last 12 months. The judgment also records a basic award of £4,325.52, damages for wrongful dismissal of £4,838.16, a pre-cap compensatory award of £29,347.03, and a final award of £34,290.08 after the compensation cap was applied. Schedule 2 applied the Recoupment Regulations and identified a prescribed element of £19,499.73 and a balance of £14,790.35.