M Robison Members Mr A Ross Mr H Boyd Mr R Sciortino v Lemac Engineering UK Ltd — 2018

The claimant was employed from 26 May 2013 until 11 July 2017. The tribunal found that after a customer complaint on 19 June 2017 about the claimant's conduct on a site visit, Mr Coleman spoke to Ms McCue and Mrs Paterson, then dismissed the claimant by email on 21 June 2017. An appeal hearing on 3 July 2017 before independent solicitor and HR adviser Ben Thornber was conducted as a complete rehearing, including further enquiries of the customer and supplier, and the dismissal for gross misconduct was upheld.

The tribunal rejected the protected disclosure case. It found that the 17 matters listed by the claimant were not protected disclosures within s.43B ERA 1996, were largely a narrative of health and safety issues already known to management, and did not establish that dismissal was caused by any disclosure. The separate detriment claim also failed because no detriment was proved to flow from protected disclosures. The redundancy pay claim failed because the tribunal accepted the evidence that the dismissal was for misconduct rather than to avoid a redundancy payment, and the unlawful deduction claim failed because the claimant accepted that he had been paid 50 pence per mile for the 19 June journey. By the end of the hearing the claimant was no longer pursuing holiday pay or unpaid overtime.

On ordinary unfair dismissal, the tribunal accepted that conduct was a potentially fair reason and that the first limb of the Burchell test was met. It also found that the respondent had reasonable grounds for its belief that misconduct had occurred, and that the appeal process, which involved a rehearing and further investigation, went a long way to correcting the original evidential shortcomings. However, the initial dismissal was still procedurally unfair because the claimant was dismissed by email without warning, without precise reasons being given, and without any opportunity to answer the allegations, contrary to the disciplinary procedure and the ACAS Code of Practice. The tribunal therefore held the dismissal unfair overall under s.98(4) ERA 1996, but reduced compensation to nil because it found the claimant 100% at fault and concluded that dismissal would have occurred in any event under a Polkey analysis.