Shepherd v Represented by: F Lefevre - Solicitor KW Contractors Limited — 2019

The claimant worked for the respondent as a plasterer and tile fixer from 1 August 2011 until 14 March 2019. He had earlier written warnings about personal use of company vehicles and attendance. On 13 March 2019 colleagues said he looked unwell; the site manager and clerk of works were concerned he might be in a drugged or intoxicating condition and asked that he be removed from site as a precaution. On 14 March 2019 he saw his GP about a shoulder injury, was told he might be off for up to six weeks, and texted that he was unfit for work.

The tribunal found that the dismissal was because a client had refused to have him on site and the respondent was unwilling to offer alternative work because it believed he had attended work under the influence of drugs. That was a conduct-related reason capable of being fair, and the tribunal applied the section 98(4) ERA 1996 unfair dismissal test, together with the Burchell and Iceland Frozen Foods authorities. It accepted that the director may have held a genuine belief, but held that there was not a reasonable basis for that belief based on a reasonable investigation. The respondent did not tell the claimant the basis of the concern, did not give him a chance to answer before deciding to dismiss, and did not offer an appeal, so the procedure fell outside the range of reasonable responses.

The tribunal therefore upheld the unfair dismissal claim and awarded a basic award of £4,572. It made no compensatory award, concluding that a fair disciplinary process would probably have taken around three weeks and that the claimant would in any event have been fairly dismissed within that period for conduct or attendance reasons; it also took account of mitigation. Separately, it awarded £2,032 for failure to provide written particulars of employment and £1,524 notice pay, with tax and national insurance to be deducted from the notice pay award. The total award was £8,128.