E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4109610/20215 Held at Inverness on 15, 16, & August and September 2022 Employment Judge J M Hendry Members N Richardson F Parr Mr W J G Mowatt v Pegasus Express Limited — 2022

Mr W J G Mowatt worked for Pegasus Express Limited from 27 June 2016 and became Depot Supervisor/Operations Supervisor at Inverness. Although the case had included disability discrimination allegations, those were withdrawn, and the tribunal only determined the unfair dismissal claim. The respondent said the dismissal was for gross misconduct.

The tribunal found that the respondent had concerns about the claimant's workload, stress, and health, and had provided support including training, a planned reduction in hours, and an admin assistant to help with paperwork. On 4 December 2020 the claimant was suspended after an incident in which he had said he was going for a job interview and would be taking work with him. He was instructed not to contact customers or business contacts, but the tribunal accepted that, after suspension, a series of emails and texts were sent to customers and contacts and that it was highly likely the claimant was either the author or the directing influence.

Applying section 98(4) ERA 1996 and the Burchell approach, the tribunal held that the respondent genuinely and reasonably believed the claimant had committed misconduct, and that the investigation was reasonable in the circumstances even though no witness statements were taken. It rejected the claimant's explanations for the customer contacts, found the disciplinary hearing fairly conducted, and held that the repeated breach of the instruction not to contact customers had undermined trust and confidence in a senior role. The dismissal for gross misconduct was therefore within the band of reasonable responses and was fair. The appeal, dealt with by Jacki Murphy, was also found to have been handled fairly.