E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND)5 Case No: 8000543/2024 Held at Aberdeen on and September 202410 Employment Judge N M Hosie Miss Alison Bowden v Represented by: Mrs N Main - Sister Highland Country Buses Limited — 2024

Miss Alison Bowden was employed as a PCV driver from 17 September 2018 until dismissal with effect from 5 January 2024. The respondent relied on conduct, following a trade union grievance alleging bullying and harassing behaviour towards a colleague, Michael Duncan. The tribunal noted that she had previously been dismissed on 1 March 2023 but was reinstated on appeal and given a final written warning on 6 March 2023. The tribunal did not reopen the final warning and found no basis to say it had been issued in bad faith, for an oblique motive, or in a manifestly inappropriate way.

The tribunal accepted that the respondent believed the claimant had committed misconduct, but it found the dismissal procedurally unfair because she was not given copies of the witness statements or the notes of the investigation meetings before the disciplinary process concluded. That meant she was not afforded a proper opportunity to answer the specific allegations. The tribunal referred to the Burchell approach and the ACAS Code requirement to inform the employee of the problem, and held that the final limb of a reasonable investigation had not been satisfied. It also accepted the respondent's concession that, if the documents had not been provided, the dismissal would be procedurally unfair.

On compensation, the tribunal applied Polkey and found it extremely likely that Miss Bowden would still have been dismissed had a fair process been followed, assessing only a 10 per cent chance that the outcome would have been different. It therefore said the compensatory award should be reduced by 90 per cent. It also found contributory fault because she did not raise the document issue during the process and said she was satisfied with it, so it reduced both the compensatory award and the basic award by a further 25 per cent. The tribunal said the basic award would be 7.5 weeks' pay, reduced by 25 per cent, but it did not quantify the monetary award and directed the parties to try to agree compensation or, failing that, proceed to a remedy hearing. The separate claim about accompaniment at hearings was dismissed as without foundation.