MR. P JONES –V– FLY LIGHT AIR SPORTS LIMITED
Mr. Jones was employed by Fly Light Air Sports Limited (“The Company”) based in Sywell Aerodrome between 20 July 2006 and August 2017 as a flying instructor.
On 30 July 2017, he raised with his Line Manager and Company Director (“Mr. A”), that the aircraft he usually flew (a November Delta) required its 50 hour service. Mr. A told Mr. Jones that he would personally perform this service with another colleague. However, the next day when Mr. Jones attended work, the service had not been carried out meaning that he had to use another aircraft, Tango India.
Upon leaving the hanger, Mr. Jones passed Mr. A and complained that the requested service had not been performed. He also made what Mr. A interpreted to be a sarcastic comment.
A dispute then arose in front of a client, culminating in Mr. Jones walking away from Mr. A, but calling him a “T@*t” in the process.
Mr. A, enraged by this comment, followed Mr. Jones and the dispute continued.
Mr. A positioned himself in front of Mr. Jones to prevent him walking away again and said “Bollo*ks…don’t call me a “T@*t,” and threw a cup of tea at him, to which Mr. Jones responded by saying “Don’t say Bollo*ks to me or I will fu@!king hit you.” Mr. Jones, realising he had gone too far, immediately made clear he was not intending to hit Mr. A. However, by this stage Mr. A had had enough and stated “Right, I don’t want you flying my aircraft, pack your stuff and leave.”
Mr. Jones, believing he had been sacked, proceeded to pack his belongings in a box, left his keys on his desk and left the Company site. He did not return to work in the following days and no contact was made with him until 3 August 2017 when he was sent a letter inviting him to attend a Disciplinary Hearing scheduled for 21 August 2017 to address allegations of gross misconduct.
Mr. Jones did not attend the Disciplinary Hearing, but received an outcome letter stating that the Hearing had gone ahead in his absence and that he had been dismissed without notice for gross misconduct, specifically serious insubordination in that he called a Company Director a “T@*t” and threatened to hit him.
THE CLAIMS BROUGHT BY MR. JONES
Following the incident on 1 August 2017, Mr. Jones brought two claims in the Employment Tribunal:
- A claim for unfair dismissal; and
- A claim for wrongful dismissal.
In summary, a claim for unfair dismissal arises when an employee believes they have been dismissed by their employer and the decision falls outside the band of reasonable responses open to the employer in the circumstance because: (1) they were dismissed without a fair reason; and/or (2) they were dismissed without the employer having followed a fair process.
A claim for wrongful dismissal is a claim for breach of contract. The reasonableness of the employer’s conduct or otherwise is irrelevant for a wrongful dismissal claim; the Employment Tribunal simply has to consider whether the employer’s conduct has breached the Contract of Employment between the employer and the employee, i.e. whether the employee’s conduct was so serious that it would entitle the employer to treat the employment contract as terminated without notice.
THE IMPORTANCE OF FOLLOWING FAIR PROCEDURE
The first thing the Employment Tribunal had to decide in this case was the date of dismissal.
Mr. Jones claimed he was dismissed on 1 August 2017 when Mr A said, “Right, I don’t want you flying my aircraft, pack your stuff and leave.” However, the Company argued that he was not dismissed until after the Disciplinary Hearing had concluded on 21 August 2017.
The Employment Tribunal found that it was reasonable for Mr. Jones to consider himself dismissed on 1 August 2017 in the light of the comment made to him, and because numerous employees witnessed him pack his belongings in a box, leave his keys on his desk and leave site, but no one made any contact with him until 3 August 2017 to tell him that he was not dismissed, but was in fact suspended pending a Disciplinary Hearing.
The Tribunal went on to find that the conduct of Mr. Jones in calling a Company Director a “T@*t” and threatening to hit him, all of which was admitted by Mr. Jones, amounted to gross misconduct BUT found that the dismissal was “INEVITABLY UNFAIR” because a fair procedure was not followed leading up to the decision to dismiss. Employment Judge G. P. Sigsworth stated “because there was no procedure for the dismissal on 1 August 2017, and a fair procedure is an essential part of a fair dismissal, the dismissal is inevitably unfair.” He added that the Company’s actions taken after 1 August 2017 when it: (1) wrote to Mr. Jones setting out the allegations against him; (2) convened a Disciplinary Hearing on reasonable notice; (3) offered him the right of accompaniment at the Hearing; and (4) offered him the right of appeal against the decision taken at the Hearing, were too late.
Judge G. P. Sigsworth made clear that, even considering the small size of the Company (it only had six employees at the time of dismissal) and its lack of experience in HR matters, this did not negate the requirement to conduct a fair process when issuing a disciplinary sanction, which must include complying with the ACAS Code of Practice on Discipline and Grievance (“ACAS Code”).
Judge G. P. Sigsworth also found that Mr. Jones had been wrongfully dismissed as even though there had been misconduct on his part, his conduct had not amounted to gross misconduct entitling the Company to treat the employment contract as terminated without notice.
Judge G. P. Sigsworth considered that if a fair procedure had been followed, there was a 25% chance that a fair dismissal would have been achieved – on this basis he reduced the compensation awarded to Mr. Jones to reflect this (“Polkey Deduction”).
He also considered that Mr. Jones contributed to his dismissal by his actions, and made a 50% Contributory Fault deduction.
Finally, as the Company failed to follow the ACAS Code, a 20% uplift was made to the damages awarded.
In total, Mr. Jones was awarded a Basic Award and a Compensatory Award amounting to £19,017.62. He did not received a separate award for the loss of his notice as it was ruled that this had to be set off against Basic and Compensatory Awards.
The lesson to be learned from this case is that all employers, no matter how small and no matter how much provocation is involved, must follow the ACAS Code as failure to do can be a costly mistake.
For help and assistance with disciplinary and grievance matters, please contact a member of the FG Solicitors team on (01604) 871 143 or email email@example.com.