Mr L Wilson v Chapman Steelworks Fabrications Limited — 2019

Mr L Wilson was employed by Chapman Steelworks Fabrications Limited as a fabricator welder from 26 April 2014 until his dismissal with immediate effect on 9 March 2018. The only claim before the tribunal was unfair dismissal under section 98 of the Employment Rights Act 1996. The respondent said the dismissal related to conduct arising from the claimant doing private work, while the claimant disputed the reason and fairness of the dismissal.

The tribunal accepted that the claimant admitted carrying out private work to some extent using the respondent's tools, gas, electricity and premises during his break time, and that the respondent had grounds to suspect more serious misuse, including possible use of the MIG welder and welding wire. It found the respondent carried out a sufficient investigation in the circumstances and that Mr Chubb held a genuine belief that the claimant was guilty of misconduct. The tribunal also rejected the suggestion that Mr Chubb was motivated by hostility toward the claimant.

The dismissal was found unfair for a narrower reason: the respondent framed and pursued the matter as theft, and the dismissal letter stated that the reason for dismissal was theft. The tribunal held that this was not the appropriate disciplinary charge on the facts, and that a reasonable employer would have proceeded on a charge such as misuse of company property, or perhaps breach of the restrictions on business activity, rather than theft. The tribunal said industrial discipline should be approached on a common-sense basis and that the charge should be the one that best fits the facts.

On remedy, the tribunal held that the claimant had committed misconduct and that, if charged correctly, a reasonable employer could have dismissed him. Applying the Polkey principle, it refused a compensatory award because dismissal would have been likely in any event. It also reduced the basic award by 50% under section 122(2) of the Employment Rights Act 1996 because of the claimant's misconduct. The claimant's agreed basic award figure was £2,200.50, so the tribunal awarded a final basic award of £1,100.25. It also recorded that the recoupment regulations did not apply.