ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102319/2017 Hearing at Edinburgh on and December 2017, and January 20185 Employment Judge: M A Macleod (sitting alone) David Findlay v Albatern Limited — 2018

The claimant, David Findlay, brought a claim against Albatern Limited alleging unfair dismissal and unlawful deductions from wages. The tribunal's reasons and final order address unfair dismissal only. It found that he had been employed under a service contract dated 28 September 2011, with continuous employment from 1 July 2009, and that he was dismissed by email on 4 April 2017 for alleged gross misconduct.

The respondent relied on three allegations: that he had deliberately misled the board about the technical readiness of the Mingary array, that he had set up another entity in conflict with Albatern's interests, and that he was absent from work from December 2016 and, in the respondent's formulation, completely since 29 January 2017. Applying s.98 ERA 1996, British Home Stores Ltd v Burchell and Iceland Frozen Foods v Jones, the tribunal accepted that the decision-makers genuinely believed misconduct had occurred, but rejected the first two allegations as lacking a reasonable basis and found the absence allegation was not clear enough on the evidence to justify a gross misconduct dismissal.

The tribunal held that the respondent's procedure was wholly unfair. The claimant was not told of the allegations, was not invited to the 28 March 2017 meeting that functioned as the dismissal hearing, had no opportunity to be represented or accompanied, and received no prior notice that dismissal might be decided. The tribunal found the respondent failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures and rejected the submission that an appeal could cure the absence of any fair initial process.

The respondent's time-bar argument based on ACAS Early Conciliation was rejected, and the tribunal held the claim was presented within the statutory deadline. On remedy, the claimant did not seek reinstatement or re-engagement. The tribunal awarded a basic award of £4,864.17 and £500 for loss of employment rights, made no compensatory award for loss of earnings because it found he had not taken reasonable steps to mitigate, and ordered the respondent to pay £5,364.17 in total.