Mr Mario Nicolas v Philips Accountants (Southgate) Ltd — 2023

The tribunal found that Mr Mario Nicolas was dismissed on 14 September 2022 after an incident over payroll files and a wider dispute about his conduct. The respondent said the reason was misconduct, including alleged file throwing, calling clients “stupid”, telling a colleague to “f’off”, lateness, and personal use of phone and computer. The tribunal accepted that Mr Papaphilippou genuinely believed the claimant had misconduct issues, but it found that belief was not based on reasonable grounds and that there had been no reasonable investigation.

The tribunal accepted that the claimant had called a client “stupid”, told a colleague to “f’off”, and was sometimes late and used his phone or computer for short personal periods. It did not accept that the respondent had investigated those matters, given warnings, or held any disciplinary meeting before dismissal. It also found there was no meaningful appeal process: the claimant asked for an independent manager appeal, but none was provided.

Applying s.98 ERA 1996 and the Burchell approach, the tribunal held the dismissal was not within the range of reasonable responses and was unfair. It also held that the conduct proved did not amount to gross misconduct, so the claimant was wrongfully dismissed as well. The tribunal rejected any deduction for contributory conduct and held that Polkey did not apply because there was no chance the claimant would have been dismissed fairly at the time or in the foreseeable future.

On remedy, the tribunal held that the claimant could not rely on continuity from his earlier employment with Phillips Enterprises because associated-employer continuity was not proved. It therefore assessed the basic award on 10 years’ service only. The final award was £5,048 basic award, £2,812.50 compensatory award, and £2,524.00 wrongful dismissal award, making £10,384.50 in total. The tribunal also applied a 25% ACAS uplift and recorded that the claimant had found new work on 24 October 2022 and had mitigated his loss sufficiently.