Mr G Dean, solicitor For the v Respondent — 2021

The tribunal considered the claimant's dismissal after he was observed on 6 June 2020 loading timber into his car at HMP Norwich. The respondent treated the matter as dishonesty and gross misconduct. The judge noted that a decision to permanently exclude the claimant from prison establishments appears to have been made before the disciplinary hearing, but the central factual issue was whether the claimant had permission to take scrap wood and whether the timber was scrap wood at all.

On unfair dismissal, the tribunal applied s.98 ERA 1996 and the Burchell approach. It accepted that the dismissing manager genuinely believed the claimant was guilty of misconduct, but held that there were no reasonable grounds for that belief and that the investigation was not reasonable in the circumstances. The tribunal criticised the failure to clarify the witness evidence, including what policy was said to apply, what type of wood had been seen, why it was said to be freshly cut, whether photographs or further questions could have been obtained, and whether the claimant's account that he had been allowed to take scrap wood over time was true. The appeal did not cure those defects because the further discussion with CW was brief and left important inconsistencies unresolved.

On wrongful dismissal, the tribunal referred to Ivey v Genting Casinos (UK) Ltd and preferred the claimant's evidence that CW had given him permission to take scrap wood from the skip, with the knowledge and consent of CW and MH over about two years. It found that on 6 June 2020 he was taking scrap timber and not timber that was freshly cut or different in nature from what he had previously been allowed to take. The tribunal therefore held that the claimant was not dishonest, had not committed theft, misappropriation or deception, and that summary dismissal breached the contract of employment.

The respondent's counterclaim for overpayment of notice pay was dismissed because the wrongful dismissal claim succeeded. The counterclaim for overpayment of annual leave entitlement succeeded, but the judgment did not determine the amount and recorded that the parties could calculate it themselves. No monetary remedy was fixed in the liability judgment, and the tribunal noted that if the parties could not agree compensation the matter should be listed for a one-day remedy hearing.