Miller v Represented by: Mr R Watson, Friend Lagan Operations and Maintenance Ltd — 2019

The claimant was employed as an Area Manager at the respondent's Scottish depot from 5 January 2015 until 24 October 2018. In June and July 2018 he was told that the Scottish operation was closing over the next 3 to 6 months and that he was to continue on existing work while the respondent wound down the business. On 28 June 2018 he incorporated Signsafe Ltd without telling the respondent, and later correspondence showed that he was considering a new traffic management business and possible work with Amey and other clients. After an anonymous whistleblower email, the respondent investigated and then suspended him on 3 October 2018.

The tribunal found that the reason for dismissal was the stated conduct: incorporation of Signsafe without immediate and full disclosure or prior written consent, commencing a traffic management business while still employed in a traffic management business, disclosing information to Amey about the Scottish closure, and using company time and resources in pursuit of his own business plans. That reason was capable of being fair, but the dismissal was unfair under section 98(4) ERA 1996. Applying the Burchell and range-of-reasonable-responses approach, the tribunal held that the dismissing officer did not properly appreciate the closure context and the 3 to 6 month timeframe, and that the supplementary investigation material was not shared with the claimant before the decision was made. The tribunal also found procedural shortcomings in the investigation and disciplinary process against the employer's own procedure and the ACAS Code.

On remedy, the tribunal awarded a basic award of £2,286 and found that, had the claimant not been dismissed for gross misconduct, he would have been dismissed for redundancy on 21 December 2018. It therefore awarded compensation for loss of earnings, pension and bonus, together with loss of statutory rights, and found no Polkey reduction. The claimant's compensatory award was reduced by 20% for contributory conduct, reflecting his premature incorporation of Signsafe, his intended traffic management trading, the information disclosed to Amey, and minimal personal work during working hours. The formal judgment order records a total award of £18,180.