Mr P Soennecken v Otis Ltd (England and Wales : Breach of Contract) -[2018] UKET 2204650/2018- (21 November 2018)

Key Facts

Issues

• The tribunal considered whether the dismissal was unfair due to specific reasons including procedural flaws, lack of written procedures, training, and inconsistency in treatment.
• The tribunal determined whether the dismissal was within the range of reasonable responses a fair employer might have taken.
• The tribunal assessed whether the reason for dismissal (conduct) was a potentially fair reason under section 98(1) and (2) of the Employment Rights Act 1996.
• The tribunal evaluated whether the respondent satisfied the test of fairness set out in section 98(4) of the Employment Rights Act 1996.
• The tribunal assessed whether any procedural flaws in the dismissal process affected the outcome, applying the Polkey test to determine if the dismissal would have occurred regardless.
• The tribunal determined the specific reason provided by the respondent for the claimant's dismissal, which was alleged to be misconduct under the Employment Rights Act 1996.
• The tribunal examined whether the claimant was entitled to payment for his contractual notice period upon dismissal.
• The tribunal applied the Burchell test for misconduct dismissals, requiring the respondent to have a genuine belief the claimant committed misconduct, reasonable grounds for that belief, and a reasonable investigation.
• The tribunal determined if the claimant's contributory fault should reduce any awards under sections 122(2) and 123(6) of the Employment Rights Act 1996.

Holdings

• The claimant breached health and safety rules by disregarding cardinal procedures, constituting gross misconduct. The wrongful dismissal claim failed as the dismissal was justified under the breach of rules.
• The dismissal was fair as the respondent had a genuine belief in misconduct based on reasonable grounds (CCTV evidence, witness statements), conducted a reasonable investigation, and the sanction of summary dismissal was within the range of reasonable responses. Procedural flaws did not affect the outcome.

Legal Principles

• The tribunal determined that the claimant's breach of cardinal rules (gross misconduct) constituted a fundamental breach of contract, justifying dismissal without notice and dismissing the wrongful dismissal claim.
• The tribunal applied the Burchell test for unfair dismissal, requiring the employer to have a genuine belief in the employee's misconduct, reasonable grounds for that belief, and a reasonable investigation. The employer satisfied all criteria, leading to a finding of no unfair dismissal.

Precedent Name

• Polkey
• BHS v Burchell

Cited Statute

Judge Name

Passage Text

• 5.1. I find that the reason for the claimant's dismissal was a reason related to his conduct. This is a potentially fair reason under ERA.
• 5.12. The respondent has provided a schedule of disciplinary sanctions imposed on other cases of this nature from which it can be seen that summary dismissal is within the range of usual responses although not all cases result in summary dismissal. I am satisfied that the respondent considered the issue of consistency and concluded that dismissal was the appropriate sanction for the breach by the claimant, particularly in light of his failure to accept he should have acted differently. I find that the sanction of summary dismissal is within the range of reasonable responses and that there is no unfairness on grounds of inconsistency.
• 5.13. I find that the respondent did not unfairly dismiss the claimant and that it acted within the range of reasonable responses. The claimant's complaint of unfair dismissal fails and is hereby dismissed.