In person For the v Respondent — 2019

Mr J Fox was employed by Babcock Aerospace Limited after a TUPE transfer from Serco and moved into a Senior Media Developer role from 1 April 2019. He withdrew all but one of the alleged protected disclosures. The remaining disclosure, said to have been made on 4 November 2019 to Elaine Wells, concerned alleged copyright infringement relating to material used in the ICAN team. The tribunal accepted that he showed her a video animation and related material, held that this was a disclosure of information, and found that it was made in the public interest and to a manager within s43C ERA 1996.

The tribunal nevertheless found that the claimant was dismissed for misconduct, not because he had made that protected disclosure. It accepted that concerns about his conduct pre-dated the disclosure, including an altercation on 7 August 2019 and later complaints from colleagues and the customer. It found that the claimant made a number of admissions during the disciplinary process, including shouting, pointing a finger, using derogatory language, and making threats about colleagues' roles. Applying s98(4) ERA 1996 and the Burchell approach, the tribunal held that the respondent had a reasonable belief in misconduct after a reasonable investigation and that dismissal was within the range of reasonable responses.

The ordinary unfair dismissal claim also failed. The tribunal accepted there was a procedural flaw because the decision maker did not have the claimant’s 7 and 9 December 2019 representations in the investigation report, but held that this did not render the process unfair overall given the length of the disciplinary hearing, the appeal, and the claimant’s own admissions. It also said that, even if that omission had made the process unfair, dismissal would have followed in any event and contributory fault would have been high.

On pay, the tribunal found that the claimant’s normal contractual hours were 39 per week until 1 April 2019 and 37 per week thereafter. It held that overtime required authorisation, that the claimant accepted it was never expressly authorised, and that when he worked extra time he took time off in lieu. On that basis it dismissed the unlawful deduction from wages claim and the overtime breach of contract claim, and it also rejected the wider historic contract claims, including the claimed pay rise before 1 April 2019. No remedy was awarded and the remedy hearing was vacated.