Sorrell Mr B McGhee v Ms J McPherson — 2018

The claimant was employed by the respondent bar business from 3 March 2008 as general manager on a gross weekly wage of £400. The tribunal accepted that the business had serious and confusing financial problems, including transfers of funds to other business interests and payments being accounted for inconsistently, and it accepted the claimant's evidence that a meeting on 29 September 2016 addressed outstanding liabilities and that Karen Crawford was to take responsibility for organising payment plans. The respondent did not appear at the final hearing, and the tribunal heard only the claimant's oral evidence, which it found credible and reliable.

The tribunal held that the dismissal for gross misconduct was unfair. Applying section 98 ERA 1996 and the Burchell approach, it found that although the respondent believed the claimant had been guilty of misconduct, there were no reasonable grounds for that belief and the respondent had not carried out as much investigation as was reasonable in the circumstances. The disciplinary process was found to be significantly flawed: the invitation letter set out only generic allegations, there had been no proper investigation meeting, additional specific allegations were put verbally at the hearing without advance notice or supporting witness statements, and the chair and appeal chair had been involved in the earlier 29 September 2016 meeting. The tribunal also considered that the process breached the ACAS Code and that the dismissal fell outside the band of reasonable responses.

The tribunal further found that the dismissal was likely to have been pre-determined, relying in part on a December 2016 online post by Ms McPherson suggesting that she was seeking a new manager. It accepted the claimant's evidence that the appeal process was mishandled when he was later told that the landlord, rather than Ms McPherson trading as Ross's Bar, would hear the appeal; his refusal to attend was found reasonable. The tribunal made no reduction for contribution and no Polkey reduction, and it applied a 20% uplift under section 207A TULRCA 1992 for unreasonable non-compliance with the ACAS Code.

On remedy, the tribunal awarded a basic award of £5,400 and a compensatory award of £10,833.32, including loss of earnings to 19 May 2017, future loss, and £500 for loss of statutory rights. It also awarded £2,997 for notice pay on the breach of contract claim and £199.80 for holiday pay. The total monetary award was £19,430.12 before any recoupment adjustment under the 1996 Regulations.