A Kemp (sitting alone) Michael Still v Represented by Mr F Lefevre Solicitor Safelift Offshore Limited — 2019

The claimant, Michael Still, was employed as a Test and Inspection Workshop Foreman from 5 December 2016. The respondent later raised concerns about performance and customer issues, while the claimant had also been overpaid overtime at 1.5 times the contractual rate because of the respondent's mistake. The tribunal found that the dismissal was for capability, not as a reaction to the overtime repayment issue, and accepted that some post-October 2018 performance concerns were established, including defective work sent to customers and failure to follow an instruction about gritting outside reception.

The tribunal held that the dismissal procedure was unfair. It found that the claimant first learned of formal disciplinary action only when called to a hearing on 7 February 2019, that Mr Innes had told him before that meeting that it was not looking good and that he should resign, that the claimant's grievance was ignored, and that the meetings were not minuted. It also found that Mr Jennings was both investigator and part of the decision-making and appeal process, so the separation between investigation and decision in the ACAS Code was not observed. The tribunal held that these procedural defects were serious individually and collectively.

On substantive fairness, the tribunal found that a reasonable employer would not have dismissed the claimant without prior warning. It held that no real regard had been had to the respondent's disciplinary policy, which pointed to a final written warning in a serious capability case, and that the issues proved were not so serious as to justify immediate dismissal. The tribunal therefore held that the dismissal was outside the band of reasonable responses and unfair under s.98(4) ERA 1996. It found contributory conduct at 25% based on the post-3 October 2018 incidents it considered proved, then reduced the basic award of £1,524 to £1,143 and the compensatory award of £3,650.68 to £2,738.01, producing a total award of £3,881.01.

The unlawful deduction claim failed on jurisdiction. The tribunal found that the overtime issue was an overpayment of wages caused by the respondent's error, that the claimant accepted repayment was due but disputed the repayment period, and that the section 14 overpayment exception applied. It therefore dismissed the unlawful deduction from wages claim.