E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4104190/2022 Held at Dundee on 18, and July 2023 Employment Judge W A Meiklejohn Tribunal Member Mrs E Hossack Tribunal Member Mr S Larkin Mr P Andrews v Ltd (In Liquidation) — 2023

The tribunal found that the claimant had an unsatisfactory attendance and lateness record and that the respondent genuinely believed there had been misconduct, with genuine grounds for that belief. However, no reasonable investigation took place before dismissal, no final disciplinary hearing was held, and the respondent did not follow the ACAS Code. The dismissal was therefore procedurally and substantively unfair.

For wrongful dismissal, the tribunal found that the claimant's absence on 17 and 18 May 2022 related to his mental health and was a matter of capability rather than conduct. The respondent was not entitled to treat that absence as gross misconduct or dismiss without notice.

The respondent did not have actual knowledge of the claimant's disability during employment, but the tribunal found it had not done all it could reasonably have been expected to do to find out whether he had a disability before dismissal. The claimant's dismissal was unfavourable treatment because of absence arising in consequence of his anxiety and depression, and the respondent did not show that dismissal without a fair procedure was a proportionate means of achieving acceptable attendance.

On remedy, the tribunal awarded unfair dismissal compensation over a limited period on the basis that, had a fair process been followed, the claimant was likely to have been dismissed later on capability grounds. It reduced the unfair dismissal award by 20% for the claimant's failure to contact the respondent during absence, applied a 20% ACAS uplift, awarded notice pay for wrongful dismissal, and made a lower-band Vento injury to feelings award because the evidence of injury was limited.