The claimant was employed by the respondent, a hotel, from July 2018 until her dismissal on 2nd September 2019.  The claimant worked as a bar person and was generally regarded as a hardworking member of staff yet could be volatile at times.  At the time of dismissal, the claimant had one live warning. This was a written warning but was not a final written warning.  The claimant accepted fault over the incident leading to that warning. 

The issue leading to the case arose on 1st September 2019. This related to ‘Customer X’ who had been on the respondent’s premises on 28th August 2019 and was drunk and aggressive. Following the advice from the director, the claimant phoned the PSNI in the presence of Customer X and he left.  Customer X entered the respondent’s premises on 1st September and threatened the claimant saying that he knew where she lived and that he would get her sacked.  A dispute arose between the claimant and the Bar Manager with the claimant either being told to not serve Customer X or to stay behind the bar.  Both indicated that the claimant should not interact with Customer X.  While the claimant was at Customer X’s table, albeit silently, the doorman of the respondent, Mr Grant, became involved.  He put his hands on the claimant’s shoulders trying to turn her around - this was explained in evidence as an attempt to diffuse the situation and to avoid any violence or threat of violence.   The Tribunal regarded this as a ‘battery’ upon the claimant and that they did not understand why such action had to be taken in the circumstances.  

The claimant attended a meeting the next day, 2nd September, although she was not told what the meeting would relate to, nor wasshe told that there would be any possibility of disciplinary action being taken.  The claimant was subsequently told that she was being dismissed at the meeting and this was followed up with a letter stating that she had been dismissed due to misconduct. The Tribunal outlined that this did not follow the statutory procedure as there was no prior letter outlining any allegations and the meeting did not follow the requirements to meet the statutory minimum.  As a result, the dismissal was regarded as being automatically unfair.   

The respondent argued that the claimant had not mitigated her loss.  However, it was shown that the claimant had, in fact, obtained employment in March 2020 in another bar.  However, as this was after the cut-off for furlough, she was not eligible to be placed on the scheme when the bar was forced to close as a result of Coronavirus restrictions. As a result, it was found that the claimant had made appropriate efforts to mitigate her loss.  The Tribunal did make a Polkey Reduction of 50% considering that she already had a written warning and that there had been some misconduct by the claimant placing herself in proximity with Customer X despite earlier instruction. This was also met with a contributory conduct deduction of 35% This was counteracted, somewhat, by an uplift due to the failure to follow statutory procedures of 30%.  Overall, there was a compensatory payment of near £7,695.86 in relation to the dismissal. 

Practical Lessons 

It is a regular occurrence but this case demonstrates again the need to ensure that the statutory procedures are followed when disciplinary action is being taken.  The Tribunal did find that there was an element of misconduct but that was not being discussed in relation to the substance of the dismissal but through Polkey Reduction and Contributory Conduct on the basis that the dismissal was already automatically unfair as a result of the procedure that was adopted.  Employers should ensure that there are robust procedures in place which ensure that automatic unfair dismissal is avoided. 

NI Tribunal decisions are available on the OITFET website: 
http://www.employmenttribunalsni.co.uk/