EMPLOYMENT TRIBUNALS (SCOTLAND)5 Case No: 4104303/2020 Held on and December 2020 (CVP) Employment Judge: J D Young Mr Andrew Kennedy v Messrs. J & T Bell and 2 others — 2021

The claimant worked for the respondents, a mixed farm in Dumfriesshire, from 16 February 2016 until dismissal with effect from 24 July 2020. He was a part-time seasonal worker, paid at a flat rate of £10 per hour gross, and the tribunal found that he had not been given written particulars of employment during that period.

The tribunal found that the reason for dismissal was conduct-related: the respondents relied on the claimant's attitude on 24 July 2020, together with concerns about earlier work issues including damage to a neighbouring wall on 14 April 2020 and a barley drilling incident on 30 March 2020. Although the tribunal accepted that the claimant was upset and was aggressive in his stance when he challenged the allocation of work to another employee, it did not accept that his behaviour amounted to gross misconduct or that a reasonable employer would have dismissed him on that basis without more.

The tribunal held that the dismissal was both substantively and procedurally unfair. It found there had been no prior warning, no proper investigation into the earlier incidents, and no opportunity for the claimant to respond before dismissal. The appeal process did not cure those defects because material documents obtained after dismissal were not put to the claimant for comment. The tribunal therefore concluded that no reasonable employer would have dismissed in those circumstances.

On remedy, the tribunal awarded a basic award of £840 and a compensatory award of £4,902.45 for unfair dismissal. The compensatory award included 4 weeks' notice pay, a sum for loss of statutory rights, a 20% Polkey reduction reflecting the chance of a fair dismissal after proper process, a 10% reduction for failure to mitigate from the end of notice, and a 15% uplift for unreasonable failure to comply with the ACAS Code. It also awarded £420 under section 38 of the Employment Act 2002 for the failure to provide written particulars, making the total monetary award £6,162.45.