Mr A Busby v Xenforo Limited — 2019

Mr A Busby was employed by Xenforo Limited as a business manager from 1 June 2010 until his summary dismissal on 7 June 2018. He was also a statutory director and 20% shareholder. The tribunal recorded that the company was a small internet-based software business and that the dismissal followed concerns raised by Mr Darby and later considered through a disciplinary process and appeal.

The tribunal found that two matters underpinned the dismissal. First, it rejected the claimant's case that an October 2017 email exchange authorised him to increase his own salary as well as Mr Darby's; it found the exchange only related to Mr Darby's salary. Second, it found that the claimant had made payments to himself recorded as mileage expenses over a number of years without documentary support and without being able to justify the sums. The tribunal found the claimant's explanations on both matters vague and contradictory, and accepted that the respondent had concerns about unexplained payments and the salary increase.

The claimant argued that the dismissal was really motivated by a bitter family dispute involving Mr Darby. The tribunal rejected that contention and found no evidence that the dismissal was due to that dispute. It held that the real reason for dismissal was conduct. It also found that Mr Darby carried out a fair and proportionate disciplinary process, that the company was sufficiently small that it was reasonable in the circumstances for him to do so, and that Mr Sullivan provided a properly constituted appeal that upheld the dismissal.

Applying section 98 of the Employment Rights Act 1996, the tribunal referred to the Burchell test, the band of reasonable responses in Iceland Frozen Stores v Jones, and the need to have regard to the ACAS Code of Practice. It concluded that the respondent had a reasonably held belief in the claimant's guilt after a proper investigation, that dismissal fell within the band of reasonable responses, and that the dismissal was fair. The unfair dismissal claim was therefore dismissed and no monetary award was made.