Claimant v N & C Pubs Ltd (in liquidation) — 2020

Mr Douglas Neave worked for N & C Pubs Limited from 10 December 2014 as a kitchen porter at Nicholls Bar and Restaurant in Dundee. On 26 January 2019 he mistakenly believed he was on holiday and did not attend work; on 8 February 2019 he returned and was told he had been dismissed for gross misconduct. The tribunal found that the dismissal letter referred to earlier warnings that he had not previously seen, that no disciplinary hearing was held before dismissal, and that his appeal by letter dated 13 February 2019 was not answered and no appeal hearing took place.

The respondent did not enter a Response Form and did not appear at the final hearing. The tribunal held that the respondent had not established the reason for dismissal, so the dismissal was unfair. It added that, even if the reason had been conduct arising from the failure to report for work on 26 January 2019, the dismissal would still have been unfair because the process was procedurally defective and materially breached the ACAS Code of Practice.

For remedy, the tribunal accepted that Mr Neave had mitigated his loss by seeking work and found that his net earnings were about £180 per week. It awarded a basic award of £1,080 and a compensatory award of £9,360, calculated on one year of lost earnings from dismissal to the hearing date, giving a total monetary award of £10,440. Because the claimant had received benefits, the recoupment regulations applied: the prescribed element was £9,360 and the non-recoupable balance was £1,080. The tribunal noted that a financial penalty under section 12A of the Employment Tribunals Act 1996 would ordinarily have been considered in light of the ACAS breach, but none was imposed because the respondent was in liquidation.