E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4110997/20215 Held at Aberdeen on 8, and December 2021 Employment Judge W A Meiklejohn Mr Donald Annan v W H Smith Retail Holdings Limited — 2022

The claimant worked for W H Smith Retail Holdings Ltd as a Post Office Clerk from 4 November 2012 until his summary dismissal on 5 May 2021. In 2021 the respondent carried out a review of right-to-work documentation and asked him to provide a Government-headed document showing his National Insurance number. The claimant said he had provided right-to-work documents when he started work and refused to resupply the requested document, relying on his view that the respondent already held a continuous statutory excuse. The tribunal found that the respondent's legal position was flawed in one respect: obtaining the document retrospectively would not itself create a statutory excuse.

For the unfair dismissal claim, the tribunal held that the dismissal was for conduct, but it was unfair in the circumstances. The allegation was presented inconsistently as "breach of statutory duty", "no valid right to work in the UK", and later "failure to follow company policy", which meant the claimant was not given a clear and consistent case to answer. The tribunal also found that the disciplinary process was inadequate because the claimant was not given a proper opportunity to explain his position, the respondent did not reasonably investigate his argument about the law, and the appeal did not cure those defects. The tribunal therefore upheld the unfair dismissal claim under section 98 ERA 1996 and the Burchell approach to investigation.

On remedy, the tribunal accepted that reinstatement and re-engagement were not appropriate. Although it found compliance would have been practicable, it held that it would not be just to order either remedy because the claimant had substantially contributed to his dismissal by refusing to provide the document even though he could have done so. The tribunal reduced the basic award by 75% for contributory conduct and then applied a 10% uplift for unreasonable failures to comply with paragraphs 9 and 12 of the ACAS Code of Practice. It made no compensatory award because it found, applying Polkey, that dismissal would have followed in any event. The final award for unfair dismissal was £587.40.

The breach of contract claim also succeeded. The tribunal found that the claimant's refusal to provide the document was not gross misconduct, so the respondent was not entitled to dismiss him summarily without notice. It held that the proper contractual measure was eight weeks' notice pay, assessed at £2,136 gross, with a direction that the respondent could satisfy the award by paying the net sum and accounting to HMRC for deductions.