Mr Brian Harvey v Represented by Neil Stewart Solicitor Applecross Nursing Home Ltd — 2019

Mr Brian Harvey had been employed by Applecross Nursing Home Ltd since March 2002 as maintenance staff, later described as Head of Maintenance. The dispute arose after a vintage post-box sourced by Alex Kelly went missing from the green container and was later found in the claimant's workshop. John Murray investigated, and the evidence before the tribunal included conflicting accounts about whether there had been one post-box or two, where the boxes had been stored, how they had been moved, and what the claimant had said to Alex Kelly about the missing item.

The tribunal found that the respondent had a potentially fair reason for dismissal under s.98 ERA 1996, namely conduct. It rejected the claimant's case that the process was a sham or that John Murray was trying to engineer his dismissal for unrelated reasons. The tribunal accepted that Laura Jacobs and Peter Kelly had a genuine belief that the claimant had committed the alleged misconduct, and it held that the investigation was reasonable despite complaints about the absence of a formal Jane Mullen statement, the loss of John Jones's sketch, and the lack of further enquiries about the scrap-yard.

On the evidence, the tribunal preferred the documentary material and the evidence of witnesses such as Alex Kelly and Martin Hudson, and concluded on the balance of probabilities that there had only ever been one post-box. It found that the claimant had given inconsistent accounts about the number of post-boxes, the timing between their arrival, the means of transport, who helped move them, and the location and identity of the scrap-yard. The tribunal held that the respondent was entitled to conclude that the claimant had misled it when he reported the post-box as stolen from the green container, and that dismissal was within the band of reasonable responses given the respondent's need for trust in a workplace caring for vulnerable adults and elderly residents.

The breach of contract claim, which concerned dismissal without notice, also failed. The tribunal held that if the misconduct had occurred, it was serious enough to justify summary dismissal, and on the balance of probabilities it found that the claimant had misled the respondent. No monetary award was made because both claims were dismissed.