A Kemp Mr John Walters v Mrs Sally Dowden trading as Speyside Wildlife — 2018

Mr John Walters was employed by Mrs Sally Dowden trading as Speyside Wildlife as a Guide at the Hide near Aviemore. The tribunal found that the reason for dismissal was the Claimant’s conduct, so the employer had identified a potentially fair reason under section 98(2)(b) ERA 1996. The dismissal followed complaints about his comments to guests, logbook entries on 7 and 9 April 2018, and an incident on 9 April 2018 in which he spoke firmly to Miss Kate Mennie and tapped her arm with the notebook.

The tribunal held that the dismissal was unfair because no disciplinary procedure of any kind was followed. There was no investigation, no statement of allegations, no hearing, no opportunity to respond, and no right of accompaniment. The Respondent also did not follow her own Company Rules or the ACAS Code of Practice. The tribunal found that the Respondent had misunderstood the gross misconduct clause and wrongly assumed she could dismiss summarily. It accepted that the logbook entries were inappropriate and that the Claimant’s conduct towards Miss Mennie was wrong, but it did not treat the contact as assault or as gross misconduct.

Applying Polkey, the tribunal concluded that no reasonable employer would have dismissed summarily on the facts as found. It considered that a fair employer would have issued at least a written warning, and possibly a final written warning. However, it also found that if a final written warning had been issued, further misconduct was likely within about three months and a fair dismissal would probably have followed after a proper process. Compensation was therefore limited to four months’ loss after the dismissal date.

The tribunal found that the Claimant contributed to his dismissal by 40%. It relied on his repeated and unsupported allegations about pine martens being culled, his refusal to engage properly with the Respondent’s concerns, the logbook entries, and his conduct towards Miss Mennie. It did not reduce the basic award because there had been a complete absence of procedure, but it reduced the compensatory award by 40%. The basic award was £248.10, the pre-reduction compensatory award was £3,716.22, and the final compensatory award was £2,229.73, giving a total award of £2,477.83. The tribunal did not make any ACAS uplift and found that no recoupment was required because the Claimant had not claimed benefits.