Mr J Sanderson v Jagex Ltd — 2022

Mr Sanderson was employed by Jagex Ltd as a content developer from 23 November 2015 until his dismissal on 28 August 2018. The tribunal accepted that the dismissal was for a potentially fair reason, namely conduct relating to suspected unauthorised access to player accounts on Old School RuneScape, but its task was whether the dismissal was fair under section 98(4) of the Employment Rights Act 1996.

The tribunal found that the process was compromised from the outset. An email of 25 July 2018 identified Mr Sanderson as the "likely suspect", referred to evidence needing to be "tied together" as a "smoking gun", and said there was enough evidence to terminate the suspect before any investigating officer had been appointed. Mr Lomax was then appointed to investigate and Mr McClarty to chair the disciplinary hearing, despite already having seen that email.

The tribunal held that the investigation and disciplinary process were not carried out with an open or blank mindset. It found that the invitation to the disciplinary hearing referred to allegations of gross misconduct before any specific allegation had been properly formulated, and that the correspondence and outcome letters used generic policy language rather than setting out specific allegations, findings, and responses to Mr Sanderson's points. The tribunal also found that Mr Sanderson's requests for clarification and evidence were not answered with sufficient substance, and that the appeal outcome lacked adequate explanation.

The tribunal accepted that the respondent had gathered some evidence linking Mr Sanderson to the suspicious activity, including account access data, two-factor authentication, Wi-Fi records and CCTV correlations, and that Mr Belieff's belief at appeal stage was genuine. However, it found that the evidence was complex, not conclusive, and was approached through a process that was already shaped by the identification of Mr Sanderson as the likely suspect. The tribunal therefore held that Mr Sanderson was unfairly dismissed under section 98 of the Employment Rights Act 1996. On Polkey, it rejected a 100% reduction and applied a 25% reduction, finding that dismissal was not inevitable had a fair process been followed. Remedy was not determined in this judgment and was left for a later hearing.