The claimant was employed by the respondent as a school Inspector. During an inspection visit, some children came in soaking from the rain and the claimant brushed some water off one of them, touching them on the head and shoulder. Following a complaint from the school, there was an investigation and disciplinary process which led to the claimant being summarily dismissed. The ET dismissed subsequent complaints of unfair dismissal and wrongful dismissal.

HHJ Auerbach allows the appeals on both the claims. Broadly, in relation to unfair dismissal, the tribunal failed to properly consider the fact the claimant had not told, by a written policy, training or otherwise, that a single incident of physical contact could result in his dismissal. As on the facts found the tribunal could only have properly concluded that the dismissal was unfair, that decision was substituted for that of the tribunal. As for wrongful dismissal, the tribunal had not made it clear finding it had objectively considered whether the claimant’s conduct amounted to a repudiatory breach and/or as to why so that was also overturned. The case was remitted to a different tribunal to redetermine the wrongful dismissal complaint and to assess remedy for unfair dismissal.