In person For the v Mr Morley, (solicitor) __________________________________________________ — 2021

The claimant worked as a delivery driver for the respondent from December 2016. In March 2020, after the Covid-19 lockdown began, he told his line manager that he had an underlying heart condition and did not feel safe attending work. The tribunal found that the respondent agreed that he would not be allocated work and that the absence would be unpaid while lockdown conditions continued. That agreement was later formalised in the respondent’s letter of 1 May 2020, which said the company was willing to afford leave without pay while the claimant remained under lockdown conditions.

The tribunal found that the claimant genuinely believed he had authorised leave and that there was no unauthorised absence. It accepted that he repeatedly told the respondent he would return once lockdown conditions eased, and that by 24 June 2020 he said he was willing to come back if put on the rota. The tribunal also found that the respondent knew or ought reasonably to have known that the claimant had an underlying heart condition, having regard to his 2019 driver declaration, the GP letter, his repeated references to his condition, and his A&E attendance during the disciplinary process. It concluded that the respondent failed to engage with those concerns, failed to assess or mitigate any Covid-related risk, and wrongly conflated the claimant’s position with shielding or self-isolation.

On the dismissal itself, the tribunal found that the respondent had no genuine belief that the claimant was guilty of the misconduct alleged, carried out no fair or adequate investigation, and did not follow a fair procedure. It held that the decision to dismiss for alleged unauthorised absence and failure to attend the 1 July 2020 disciplinary hearing fell outside the band of reasonable responses. The tribunal also rejected the respondent’s suggestion that the claimant’s absence was linked to other business interests, and found that the appeal was little more than a rubber stamp.

The tribunal rejected contributory fault, finding no culpable or blameworthy conduct by the claimant, and it did not make any Polkey reduction because it could not conclude that dismissal would have occurred in any event. It also found that the claimant’s correspondence, though critical of the respondent, did not amount to conduct causing an irretrievable breakdown. On the wrongful dismissal claim, the tribunal found that the claimant was not guilty of gross misconduct and was therefore entitled to notice. Remedy was left to a later hearing, and the tribunal did not determine any monetary award in this judgment.