Mr David Brown v Evergreen Irrigation Ltd — 2024

Mr David Brown was employed by Evergreen Irrigation Ltd from 23 March 2019 until he was dismissed without notice on 26 September 2023. The respondent relied on three allegations: theft of company property, undertaking private work for his own financial benefit in breach of his terms and conditions, and damaging company property and/or failing to report the damage. The claimant accepted that misconduct was the reason for dismissal, so the issue was whether the respondent acted reasonably in treating that misconduct as a sufficient reason for dismissal under section 98 ERA 1996.

The tribunal accepted that Mr Jinks and Mr Rees genuinely believed the claimant had taken stock and used it for private work, but held that belief was not reasonable because the investigation was incomplete. The respondent did not take written statements from witnesses, did not keep notes of what unnamed employees said, did not provide the claimant with the available anonymous statement before the disciplinary hearing, and did not put all material matters to him, including tracker evidence said to show the van going offline at weekends and the point that Mr Hargreaves would need a driver to move bulky stock. The claimant was also not told an approximate date for the alleged private work, which prevented him from trying to provide an alibi.

On the vehicle damage allegation, the tribunal found that the claimant had admitted causing minor cosmetic damage to two company vans and had not reported it to the office. However, it held that Mr Rees did not have a reasonable belief that this amounted to misconduct justifying dismissal, because he had not established whether the claimant knew of any reporting procedure and the damage was minor. The tribunal rejected any suggestion that the claimant had tried to shift blame onto Mr Hargreaves. It therefore found the dismissal unfair.

On remedy-related issues, the tribunal found there was a 50% chance that the claimant would have been fairly dismissed in any event if a fair process had been followed. It did not make any reduction for culpable conduct under sections 122(2) or 123(6) ERA 1996. It found both parties had unreasonably failed to comply with the ACAS Code of Practice, but the respondent’s failure was more serious, so any compensatory award should be increased by 5% under section 207A TULRCA 1992. The judgment did not quantify the award and listed the case for a remedy hearing.