Mr Stephen Edgar v Represented by: Ms K Osborne Solicitor South Lanarkshire Council — 2017

Mr Stephen Edgar worked for South Lanarkshire Council as a Caretaker. The tribunal found that he was dismissed after being remanded in custody on 20 July 2016, and that the reason for dismissal was conduct. The respondent conceded that the dismissal was procedurally unfair because there had been no disciplinary hearing.

The tribunal found the investigation was materially flawed. The respondent did not speak to the claimant, did not interview his mother, and did not properly investigate the circumstances of the second Fit Note or the claimant’s account of what had happened. The appeal process did not cure those defects. Although the tribunal accepted the respondent could rely on conduct as a potentially fair reason, it found only a 10% chance that the claimant would have been dismissed if a fair procedure had been followed, given the strong mitigation, the claimant’s limited public-facing role, his lack of prior disciplinary issues, and the fact that the sheriff had admonished him on the bail-breach matter.

The tribunal did not reduce the compensatory award for contributory conduct. It held that the claimant had not caused or contributed to the dismissal in a way that made a reduction just and equitable, and it did not reduce the basic award either. It also refused reinstatement because the claimant had later been charged with possession of a class A drug, which the tribunal took into account when deciding that reinstatement was not practicable and when limiting compensation to 12 November 2016. The unfair dismissal award was £616.16 basic award plus £3,206 compensatory award after the tribunal applied a 10% reduction for chance of dismissal and then a 25% uplift for the respondent’s failure to comply with the ACAS Code.

The separate breach of contract complaint succeeded. The tribunal held that merely being detained was not, of itself, gross misconduct, and awarded £1,081.60 for four weeks' notice.