James Kinsey successfully defends unfair dismissal and disability discrimination claim

March 9, 2023

James Kinsey from Exchange Chambers has had recent success defending a claim of unfair dismissal and disability discrimination (s.15 EqA 2010) in a four-day trial at the Liverpool Employment Tribunal. The Claimant who was a director and shareholder of a logistics company was summarily dismissed for gross misconduct following several allegations of bullying and harassment in the workplace. One of the allegations included the Claimant pocket dialing a subordinate employee and proceeding, unbeknownst to the Claimant, describing his colleague in derogatory and offensive terms.

The Tribunal agreed with the Respondent that the Claimant did not have a mental impairment within the meaning of s.6 of the EqA 2010. Moreover, the Tribunal agreed with the Respondent’s case that even if the Claimant did have a disability his outbursts of anger and aggression did not arise from an alleged disability but instead from an unfortunate character trait and that if the Tribunal had been wrong about that the Respondent’s dismissal was a proportionate means of achieving a legitimate aim.

Whilst the Claimant was able to establish that he had been unfairly dismissed on procedural grounds the Respondent was able to persuade the Tribunal that there should be a 100% Polkey reduction to the Claimant’s compensation as the procedural defect made no difference to the inevitable outcome of a dismissal. Moreover, the Tribunal agreed with the Respondent that there should also be a 100% reduction for the Claimant’s contributory conduct which led to his dismissal.

The Claimant had brought a claim for over £130,000 but left the Tribunal with just £4,000 which amounted to 3 weeks’ wages to account for the period of time it would have taken to dismiss the Claimant fairly. James was instructed by David Mitchell of Millar, McCall Wylie.