Claimant v Response (Building Rewarding Relationships) Ltd: S/4102597/2017 — 2017

The claimant, Mr Seymour Lopez, began work for the respondent on 8 May 2017 as a Customer Call Assistant. After an investigation meeting on 15 August 2017, he was invited to a disciplinary hearing which was moved from 17 August to 18 August and then reconvened for 21 August 2017. A letter issued on 18 August referred to his right to representation. The tribunal recorded that the claimant sought a colleague as companion, but the hearing on 21 August proceeded without a representative present. A letter dated 31 August 2017 confirmed that his employment had been terminated on 21 August 2017 for gross misconduct.

This judgment was concerned only with the claimant's application for interim relief. The tribunal set out sections 10 and 12 of the Employment Relations Act 1999 and section 129 of the Employment Rights Act 1996, and referred to Taplin v Shippam Ltd and Ministry of Justice v Sarfraz on the meaning of 'likely'. It treated the test as requiring more than a bare balance of probabilities and asked whether the claimant had a 'pretty good' chance of succeeding at the final hearing in showing that the reason for dismissal was his asserting the statutory right to be accompanied.

The tribunal concluded that there was insufficient information before it to support the proposition that the reason for dismissal was anything other than gross misconduct, as the respondent said. It was not satisfied that the claimant was likely to succeed in establishing that the dismissal was because he sought to exercise his right to representation at the disciplinary hearing. The application for interim relief was therefore refused, and the claim was to proceed to a final hearing; the tribunal also noted that a preliminary hearing on case management could be arranged if the parties requested it.