: Mr N Rowlands Mr M Keenan Mr G McIver v Air Service Training (engineering) Limited — 2017

The claimant was the respondents’ Chief Theoretical Knowledge Instructor at the AST Ground School. In summer 2015 the respondents told staff that no further recruitment would take place and that the Ground School might cease to operate in December 2015 or January 2016. The claimant and three colleagues then explored a management buy-out through a new company, Pathway Pilot Training Ltd, and the tribunal accepted their evidence that this was done openly in the context of an anticipated closure and a search for continued employment.

The tribunal found that Mr Farrow initially supported the proposal and said he would put it to the Board, but that the Board later rejected it on the stated basis that the business was not viable. The tribunal accepted that the claimant and his colleagues had carried out steps such as setting up the company, creating a website, sending emails to enquirers and using the Company’s address, but held that these actions had to be viewed against the background of the proposed closure and the fact that no ATO licence had yet been obtained for the new company.

Applying section 98 of the Employment Rights Act 1996 and the Burchell test, the tribunal held that the respondents did not have reasonable grounds for treating the claimant’s conduct as misconduct justifying dismissal. It found that the investigation by Rhona Munro was inadequate, that there was too much involvement by HR and senior management in the process, and that the claimant’s grievance should have been investigated before the disciplinary decision was taken because the grievance and disciplinary issues were closely linked. It also found procedural unfairness in proceeding with the disciplinary hearing in the claimant’s absence after he produced medical evidence of illness, and it held that dismissal was in any event too harsh a sanction.

On remedy, the tribunal rejected contributory fault and found no basis for a full Polkey reduction, but it made a 5% reduction to the compensatory award because redeployment was not absolutely certain. It accepted the claimant’s wage loss calculation to 3 February 2017 and his loss of statutory rights, awarding a basic award of £2,137.50 and a compensatory award of £30,584, giving a total monetary award of £32,721.50. It also ordered reimbursement of the £1,200 tribunal fee paid by the claimant.