Mr J West, solicitor v Respondent — 2020

The claimant, a Business Development Executive, was dismissed on 29 January 2019 for misconduct after he took papers from a colleague’s desk bin, read them, discussed them with colleagues and later taunted the colleague about what he knew. The papers related to restructuring and merger discussions and were treated by the respondent as highly confidential. The tribunal accepted that the claimant had done what was alleged in substance, including removing the documents and sharing their contents with other employees.

On the unfair dismissal claim under section 98 ERA 1996, the tribunal found that the respondent had a potentially fair reason based on misconduct and that, absent procedural failings, dismissal was substantively fair. However, the dismissal was procedurally unfair because Mr Kitchen was involved from the outset, conducted part of the investigation, chaired the disciplinary hearing and made the dismissal decision. The tribunal also found that his invitation letter to the disciplinary hearing pre-judged key elements of the case by stating that each allegation constituted serious misconduct. The tribunal held that this involvement was contrary to paragraph 6 of the ACAS Code and to the respondent’s own procedure, which contemplated that the dismissing senior manager should not have been previously involved.

The tribunal rejected the claimant’s procedural complaints about the wording of the dismissal letter. It found that he could understand which policies had been breached and that the respondent was entitled to treat confidential information as including material shared internally with colleagues. The tribunal also rejected the comparison with Ms KV as a basis for inconsistency of treatment.

On wrongful dismissal, the tribunal held that the claimant’s conduct amounted to gross misconduct and a repudiatory breach of contract. It found reliable, undisputed evidence that he had committed a serious breach of confidentiality by searching the bin, removing documents he knew to be confidential, sharing them with colleagues and allowing one colleague to take the papers away. The dismissal was therefore not wrongful. The tribunal then listed the case for a separate remedy hearing and made findings on contributory conduct and Polkey, assessing the claimant as 75% to blame and finding a 75% chance he would have been dismissed even with a fair procedure, but it did not determine any monetary award in this judgment.