EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000534/2023 Held in Aberdeen on February 2024 Employment Judge N M Hosie lain Sutherland v Aberdeen Mastic & Services Ltd — 2024

The claimant brought a single unfair dismissal claim arising from his summary dismissal on 17 August 2023. The respondent accepted that he had been dismissed, but said the reason was conduct and that the dismissal was fair. The tribunal found that the reason for dismissal was the offensive language used by the claimant in a WhatsApp group chat directed at the respondent’s sole director, including the phrase that he was an "ungrateful cunt", together with later messages calling him a "clown" and a "fool".

The tribunal rejected the claimant’s case that he had been dismissed because he refused to do measuring work. It found that the measuring dispute was background to the dismissal, but that Mr McAlpine was offended by the comments and dismissed the claimant for that reason when he told him not to come back. The tribunal accepted that the dismissal was summary dismissal.

Under s.98 of the Employment Rights Act 1996, the tribunal considered both procedural and substantive fairness. It said there had been no prior disciplinary meeting and that, on the face of it, the dismissal was procedurally unfair, referring to Polkey and the ACAS disciplinary code. However, it held that the circumstances were exceptional enough to excuse a formal procedure because the business was very small, Mr McAlpine was the only person who could conduct any hearing or appeal, the comments were admitted and visible to the other employees, and the claimant had not apologised or indicated any conciliatory attitude.

Applying the band of reasonable responses approach from Iceland Frozen Foods, the tribunal found that the claimant’s conduct amounted to gross misconduct. It held that the comments were grossly offensive, were directed at the director in a small business where daily contact would continue, and justified Mr McAlpine’s loss of trust and confidence. The tribunal therefore concluded that the dismissal was both procedurally and substantively fair and dismissed the claim.