Mr J Hamilton v CleanEvent Services Limited — 2022

Mr Hamilton had worked for the respondent and its predecessors since 2007. In 2016 he moved into a new salaried role after discussions with Mr Drew and Ms Dawn Wise about the job title, annual leave and sick pay. The tribunal found that the claimant genuinely believed the parties had agreed changes to his terms and that he later used his own amended version of the contract. The dispute came to a head in December 2019 when he raised holiday entitlement on the Atlas system and the respondent started an investigation into alleged falsification of contractual documents.

The respondent dismissed Mr Hamilton for gross misconduct on 23 September 2020 and his appeal was rejected on 12 October 2020. The tribunal accepted that the reason for dismissal was conduct, namely the respondent's belief that the claimant had falsified documents, but held that the dismissal was unfair under section 98(4) ERA 1996. The key failure was that the respondent did not attempt to obtain evidence from Ms Wise, whom the tribunal regarded as the best witness on the disputed discussions, and it did not provide Mr Callender's investigation report to the claimant before the disciplinary hearing. Those omissions meant the investigation and decision fell outside the band of reasonable responses.

The tribunal accepted much of the claimant's evidence, including that he had discussed holiday and sick pay changes and believed agreement had been reached. It also found that some of the respondent's criticisms of his case did not withstand scrutiny, including the handling of holiday records and the reasons given in the dismissal email. The tribunal considered the Burchell test, the band of reasonable responses, the ACAS Code of Practice, and the Polkey principle. It held that there should be no reduction for contributory conduct or for Polkey, and that the respondent had not proved a failure to mitigate. It awarded a basic award and compensatory award, with a total monetary award of £29,706.74, and the judgment contains a small 2p inconsistency between the reasons and the formal order/recoupment figures.