Mr Andrew Kennedy v Messrs J & T Bell and others: 4104303/2020
| Judgment Date | 29 January 2021 |
| Citation | 4104303/2020 |
| Published date | 18 February 2021 |
| Court | Employment Tribunal |
| Subject Matter | Breach of Contract |
EMPLOYMENT TRIBUNALS (SCOTLAND)
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Case No: 4104303/2020
Held on 14 and 15 December 2020 (CVP)
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Employment Judge: J D Young
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Mr Andrew Kennedy Claimant
Messrs. J & T Bell First Respondent
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Thomas Bell Second Respondent
Graham Bell Third Respondent
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The Judgment of the Employment Tribunal is that:
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(1) the claimant was unfairly dismissed by the respondent in terms of section
98 of the Employment Rights Act 1996; and
(2) the respondent is ordered to pay to the claimant a monetary award in the
sum of Five thousand seven hundred and forty two pounds and forty
five pence (£5,742.45) as compensation.
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(3) the respondent is ordered to pay to the claimant the sum of Four hundred
and twenty pounds (£420) under section 38 of the Employment Act 2002
S/4104303/2020 Page 2
in respect of failure to provide the claimant with a statement of employment
particulars.
REASONS
Introduction
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1. In this case the claimant presented a claim to the Employment Tribunal on 15
August 2020. He complained of unfair dismissal; breach of contract (failure
to pay notice pay) and failure to provide a statement of employment
particulars. The claims are resisted. The respondent admits dismissal but
denies it was unfair and gives the reason for dismissal as gross misconduct
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and thus no notice or payment in lieu thereof was necessary.
Issues
2. The issues for the Tribunal were:-
(a) What was the reason for dismissal. Was it reasonable for the
respondent to believe that the claimant was guilty of gross misconduct
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against the claimant’s contention that no such reason could be
ascertained. Did the respondent have a potentially fair reason under
s98 of the Employment Rights Act 1996 (ERA)
(b) If so, having regard to the tests set out in Burchell v British Home
Stores, had the respondents carried out sufficient investigation so that
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at time of dismissal they had a genuine belief based on reasonable
grounds of the claimant’s misconduct.
(c) Was a fair procedure followed with particular reference to any
disciplinary procedures. Did the respondents fail to follow the ACAS
Code of practice on Disciplinary procedures
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(d) Was dismissal within the band of reasonable responses.
(e) Did the claimant contribute to his own dismissal and if so to what
extent.
S/4104303/2020 Page 3
(f) If the dismissal was unfair would any compensation be limited under
Polkey principles and if so to what extent.
(g) Was there an entitlement to payment of 4 weeks’ pay in lieu of notice.
(h) Was there a failure to provide a written statement of employment
particulars and if so what compensation should be awarded.
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(i) If the dismissal was substantively and/or procedurally unfair what
compensation should be awarded and should any uplift apply for
failure to follow the ACAS Code; and if so to what extent and to which
elements of claim.
The hearing
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3. The parties had helpfully liaised in providing a Joint Inventory of Productions
paginated 1 – 104 (J1- 104).
4. At the hearing I heard evidence from the claimant and Graham Bell the third
respondent. There was no dispute that the claimant was employed by the
First Respondent and that the Second and Third Respondent were partners
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thereof. For ease of reference the third respondent is referred to as “Graham
Bell” and all the respondents cumulatively as “the respondents”.
5. From the documents produced, relevant evidence led and admissions made
I was able to make findings in fact. However given the matters of fact in
dispute between the parties I have considered it necessary to rehearse the
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evidence on certain events before coming to a conclusion on those events.
Findings in Fact
6. The respondents operate a mixed farm in Dumfriesshire. They have
approximately 700/800 head of cattle and grow crops such as winter barley,
wheat and oilseed rape. They also grow silage to feed the herd. Certain fields
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are let out in the winter for grazing of sheep.
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