Mr A Kaminski v Oxford Plastic Systems Limited v — 2021

Mr A Kaminski worked for Oxford Plastic Systems Limited as a machine operative from 19 January 2012 until 27 September 2018. The tribunal found that on Sunday 23 September 2018 he went onto the respondent's premises, removed copper pipes from a defunct chiller cabinet and admitted taking the copper during the investigation interview, although he said he believed he was taking scrap. He was suspended the same day, invited to a disciplinary hearing by letter on 25 September 2018, and dismissed for gross misconduct after the hearing on 27 September 2018.

The tribunal accepted that the respondent genuinely believed the claimant had committed theft and had reasonable grounds for that belief based on CCTV footage and the claimant's admission that he had taken copper without permission. It also accepted that theft was treated by the respondent's disciplinary policy as gross misconduct. However, the tribunal held that the respondent did not carry out a sufficiently careful investigation into the claimant's explanation that he thought the material was scrap being thrown away, and that explanation was not properly explored or put to him in advance of the disciplinary hearing.

The tribunal also found procedural unfairness because the same manager, Mr Cuthbert, conducted both the investigation and the disciplinary hearing when it would have been practicable for those roles to be separated. The invitation letter did not make clear that the allegation would be treated as theft or that summary dismissal might follow, which placed the claimant at a disadvantage, particularly as he was not an English speaker and relied on translation. The tribunal further found that Mr Cuthbert announced dismissal immediately at the hearing without taking time to consider alternatives, and that the respondent assumed dismissal was inevitable if gross misconduct was found.

Applying section 98 ERA 1996 and the range of reasonable responses approach, the tribunal held that the dismissal was unfair. On remedy, it found that a fair process would probably have delayed dismissal by two weeks, but that the claimant would likely still have been fairly dismissed by 31 March 2019. It assessed a 75% reduction to the compensatory award to reflect the likelihood of a fair dismissal and a 75% reduction to both basic and compensatory awards for contributory conduct. It made no separate ACAS adjustment, finding that the parties' failures would broadly have cancelled each other out. No monetary award was quantified in this liability judgment; the basic and compensatory awards were left to be determined at remedy on the stated basis.