Mr J W Dendy v The Brock Garden Centre SCIO: 4102833/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102833/2025Venue EdinburghHearing 17, 18 & 19 November 2025
Between
Mr James William DendyClaimantThe Brock Garden Centre SCIORespondent
Before
Employment Judge O’DonnellMr A Farooq for respondentLitigation for respondentConsultant for respondentDate 26 November 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claim of unfair dismissal is not well-founded and is hereby dismissed.
REASONS
[1]The claimant has brought a complaint of unfair dismissal which is resisted by the respondent. Preliminary issues[2]At the outset of the hearing there was an outstanding issue with a witness order for Sam Dickinson. The claimant had obtained an order for Mr Dickinson (who was an external consultant engaged by the respondent to investigate the claimant’s grievance) to attend the hearing to give evidence and the respondent sought to have this revoked.[3]After a discussion about the issues to be determined in the case, the claimant stated that, on reflection, he did not intend to call Mr Dickinson. The Tribunal, therefore, revoked the witness order as it was no longer required.
Evidence
[4]The Tribunal heard evidence from the following witnesses:-a. The claimant.b. John McLean (JM) – the chair of the Board of the respondent.c. Koen Van der Straeten (KVS) – the respondent’s general manager.[5]There was an agreed file of documents prepared by the parties. A reference to a page number below is a reference to a page in that file. There were some additional documents lodged by the claimant at the start of the hearing; if there is a need to reference these documents then the letter “C” will be in front of the page number.[6]This was not a case where there was a significant dispute of fact about the events leading to the claimant’s dismissal. The process followed by the respondent was not in dispute and supported by contemporaneous correspondence and other documents.[7]In these circumstances, the Tribunal did not have to resolve any dispute of fact and assess the credibility and reliability of the witnesses. Broadly, the Tribunal considers that all witnesses sought to give an accurate account of events based on their best recollection.[8]The main dispute of fact in this case related to the issues which the claimant says prompted him to raise the grievances that he did. There was a dispute between him and KVS about events which occurred in the workplace. However, those events were not relevant to the issues to be determined in this case; the Tribunal was not re-running the grievance process nor was it deciding what conclusion it would have reached about those matters.[9]In these circumstances, the Tribunal found that the evidence from KVS was not of particular relevance to the issues to be determined in this case; his evidence was directed towards what he says happened in the workplace whereas the Tribunal was concerned with what information the respondent (in the person of JM) had before it when making its decision to dismiss. Findings in fact[10]The Tribunal made the following relevant findings in fact.[11]The respondent is a social enterprise that operates a not-for-profit garden centre. The purpose of this is to provide people who have mental health issues with the opportunity to socialise and engage in meaningful activity to help in their recovery.[12]At the relevant time, the respondent had four employees; a general manager (KVS); two facilitators (one of whom was the claimant); an administrator. There were also service users and volunteers who worked at the garden centre. The activities included growing and selling plants, craft workshops and, latterly, some garden maintenance work.[13]The respondent is overseen by a Board of Trustees chaired by JM. The Board does not get involved in the day-to-day running of the organisation but exercise a governance function.[14]The claimant commenced employment on 9 January 2020. The duties of the role was to take the lead in the horticulture side of the organisation, working with service users to grow and sell the plants in the garden centre. The claimant worked Monday to Friday, 8.30am to 4.30pm, with some work at the weekends.[15]KVS had been employed with the respondent prior to the claimant starting. He was originally the operations manager from January 2019 becoming general manager in January 2020.[16]On or around 29 February 2024, the claimant raised a formal grievance about KVS (pp84-96). The grievance had been prompted by an incident involving a service user where KVS had disagreed with how the claimant had handled the situation. The details of the incident are not relevant to the issues to be determined in this case.[17]The grievance ran to 13 pages and set out a range of complaints which the claimant had about KVS and his management of the respondent. Again, the full detail of the grievance is not relevant to the issues to be determined. It is sufficient to note that the claimant raised complaints about matters going back to December 2022 about which he had been keeping a record and he believed that there may have been an intention to discipline or dismiss him. The grievance concludes with an assertion by the claimant that he considered KVS “to be an inconsistent, incompetent and untrustworthy manager”.[18]The grievance was based to JM as the chair of the respondent’s Board. This is what was required by the respondent’s grievance policy where the grievance was about KVS. JM was surprised by the grievance as he had believed that the claimant and KVS had a good working relationship up to that point.[19]JM met with the claimant on or around 29 March 2024 to discuss his grievance. There had been a delay because the claimant had been off sick for a period of time. JM’s intention was to try to repair the working relationship between the claimant and KVS. He felt that there could be an improvement in communications and wanted to speak to both of them to see where there was common ground and where there were issues of dispute. He considered that setting up regular 1-2-1 meetings would assist with this. The claimant agreed to these but was not confident that these would work.[20]The process was delayed further because KVS went on an extended leave of absence. He has mental health issues of his own and, for a number of reasons, sought a period of leave to help with these. He was given a 12 week leave of absence by the Board.[21]On his return, JM had discussions with him about improving communications between KVS and the claimant by way of regular 1-2-1 meetings. He also agreed to this.[22]The first 1-2-1 meeting took place on 16 July 2024 and note of this prepared by KVS is at pp101-104. The claimant does not agree that this note is wholly accurate and representative of the discussion that was had that day in terms of the tone and way in which things were said by KVS. However, it was not in dispute that he sought to raise the issues set out in his grievance at this meeting and that the meeting did not go well.[23]A formal response to the claimant’s grievance was issued by letter dated 26 July 2024 (pp126-128). The letter set out that the Board did not consider that there was anything to take forward. There is a specific denial that there was any plan to dismiss the claimant with nothing of this nature ever being raised by KVS. The only action taken by him was to petition the Board for all employees to be made permanent. The letter goes on to state that they would introduce regular 1-2-1 meetings between KVS and all employees to allow any misunderstandings or misgivings to be discussed.[24]The second 1-2-1 meeting between KVS and the claimant took place on 26 July 2024. The detail of this meeting is not relevant to the issues to be determined. The relevant issue is that the claimant handed KVS a handwritten note (p129) that subsequently became the basis of what was described as the “second grievance”.[25]The second grievance states that the claimant continues to have issues about how his grievance had been dealt with. He states that he is willing to move on but that KVS “whether by illness or personality” would not accept that some of the fault was his. The claimant goes on to state that “being unwell, or not competent at your job” does not give KVS licence to make employees feel unwell or under pressure. The grievance asserts he feels bullied and that “feeling bullied is being bullied”.[26]Again, the grievance was passed to JM and a reply was sent by the Board by letter dated 12 August 2024 (pp130-132). The letter sets out what the Board understands to be the claimant’s grievance and goes on the address various points, in particular, that they consider KVS to be a competent manager and that references to his mental health are not appropriate. The letter acknowledges that this is a difficult situation for the claimant and KVS; it is noted that the 1-2-1 meetings have only just commenced and encourages the claimant to continue with these in the hope that they will be of benefit.[27]A further 1-2-1 meeting was held on 22 August 2024. A note of the meeting records that the claimant wanted further clarification from JM before proceeding with these meetings (p133).[28]Around this time, the Board decided that it would contract with an external HR provider to assist in dealing with the claimant’s grievance. They contracted with Peninsula who appointed a consultant, Sam Dickinson (SD), to investigate the claimant’s grievance.[29]The claimant had been absent from work on sick leave around this time. He remained off work until the end of his employment although this was not sick leave. He had been given a period of paid leave to consider various options that had been presented to him. He was then asked to remain off work until the grievance process and, subsequently, the dismissal process had concluded. He was paid as normal for the whole of this period.[30]The respondent had asked the claimant to stay off work because there was a concern about the working relationship between him and KVS whilst the dispute was ongoing. JM had hoped that the relationship could be repaired and the claimant could return in due course.[31]The claimant was invited to an online meeting with SD (p138) to be held on 19 September 2024. This meeting did not proceed as planned with the claimant asserting that there had been technical difficulties on the day. It was agreed that he would provide written submissions to SD (p149). SD conducted an interview with KVS on 30 September 2024.[32]SD produced a report with his findings and recommendations (pp156-169) dated 21 October 2024. The report recommended that the grievance be upheld in part, that is, that the respondent had not considered other options such as mediation to try to resolve the issues between the claimant and KVS. Otherwise the report recommended that the grievance not be upheld for different reasons for different issues. The Tribunal does not consider that it is necessary to set out the detail of this as it is not relevant to the issues in this case.[33]The report made a number of recommendations for actions the respondent could take to resolve the workplace dispute. This included giving consideration to mediation, training on effective communication, undertaking a culture review, regular welfare meetings for the claimant and training mental health first aiders.[34]By letter dated 1 November 2024 (p170), the Board wrote to the claimant to confirm that, based on the report from SD, his grievance had not been upheld except in relation to trying further resolution methods. The letter goes on to state that the respondent remains open to any suggestions which the claimant may have. The claimant was provided with a copy of SD’s report and informed of his right to appeal.[35]Mediation did not take place; KVS indicated that he was not willing to engage in this and JM took the view that, unless both the claimant and KVS were willing to take part in mediation, it could not be taken forward.[36]On 15 November 2024, KVS spoke to JM about the claimant returning to work. JM took a note of the meeting (p181) which set out KVS’s misgiving and concerns about the claimant returning to work with the same attitude (as KVS saw it) that he had shown previously. In particular, KVS considered that a number of issues needed to be addressed relating to the claimant and that he believed that the claimant would have a detrimental effect on the organisation. He stated that it would be his intention to leave if the claimant returned.[37]By letter dated 26 November 2024 (p186), the claimant submitted his appeal. The appeal documents runs for 13 pages (pp187-199) going through SD’s report paragraph-by-paragraph. Again, the detail of the appeal is not relevant to the issues in this case.[38]By letter dated 2 December 2024 (pp200-201), the claimant was invited to an appeal hearing on 6 December 2024 with a Board member, Mark Hall.[39]By letter dated 16 January 2025, Mr Hall wrote to the claimant setting out his decision. This was accompanied by an appeal report that Mr Hall had prepared (pp210-238). Mr Hall did not uphold the claimant’s appeal and the reasons for this were set out in the letter. Again, these are not relevant to the issues to be determined in this case.[40]By letter dated 23 January 2025 (p243), the claimant responded to the appeal outcome stating that he did not agree with the decision but thanked Mr Hall for his time. He went on to state that he remained committed to working for the respondent and wished to return to work.[41]By letter dated 5 March 2025 (pp250-251), the claimant was asked to attend a formal hearing with a consultant from Peninsula on 10 March 2025. The letter sets out that it is felt that there has been an irretrievable breakdown in the working relationship between the claimant and the respondent. The consultant would not be making any decision but was investigating the matter and making recommendations to the respondent. The letter went on to explain that this could result in the termination of his employment. The claimant was advised of his right to be accompanied.[42]The claimant met with the consultant, Kerry Tipple, as planned. Ms Tipple produced a report (pp268-276) which concluded that there was a basis to find that there had been an irretrievable breakdown in the working relationship. The report recommend that the claimant be dismissed for “some other substantial reason” with payment in lieu of notice.[43]By letter dated 21 March 2025 (p277-278), JM dismissed the claimant because of the breakdown in the working relationship. The letter set out the grievance process followed and the conclusion that the grievance was not substantiated. It went on to note that the claimant continued to disagree with this conclusion. JM considered that it was hard to see how the working relationship could be rebuilt when the claimant still disagreed with how the respondent was being run. JM also made reference to the claimant’s personal comments about KVS as indicating a breakdown in the relationship.[44]The letter goes on to set out that, given the small number of staff employed by the respondent, employees needed to interact well. JM notes that the claimant has said that he was willing to draw a line under matters but did not consider that this was demonstrated by the claimant’s behaviour.[45]JM also explained that the respondent had considered whether there was any change in working practices which would help resolve matters but concluded that there was nothing feasible that would avoid the claimant and KVS coming into contact.[46]The letter concluded by advising the claimant of his right to appeal.[47]The claimant did appeal (pp279-282) and a further external consultant was appointed to investigate the appeal. The claimant met with the consultant on 7 April 2025 and a report (pp306-312) was produced which recommended that the appeal was not upheld. JM wrote to the claimant by letter dated 30 April 2025 (pp313-314) confirming that his appeal had not been upheld and setting out the reasons for this. Submissions[48]Both parties gave oral submissions. For the sake of brevity, the Tribunal does not intend to set out the submissions in details. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.
Relevant Law
[49]The reason for a dismissal was described by Cairns, LJ in Abernethy v Mott Hay and Anderson [1974] IRLR 213 (approved by the House of Lords in subsequent decisions such as W Devis & Sons Ltd v Atkins [1977] AC 931 and West Midlands Co-operative Society v Tipton [1986] IRLR 112) as follows: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”[50]It is a matter of law as to whether any such set of facts or beliefs falls into one of the categories of potentially fair reasons for dismissal and, if so, which one(s).[51]The “some other substantial reason” (SOSR) is an open-ended category and so long as the reason is not minor, whimsical or capricious then it can be considered “substantial” and if it could justify a dismissal then it is a potentially fair reason (Harper v National Coal Board [1980] IRLR 260, Kent County Council v Gilham [1985] IRLR 18, CA).[52]A breakdown in working relationships can amount to SOSR although the Tribunal has to be alive to the possibility that this reason is being as a “smokescreen” for conduct issues in order to avoid any disciplinary process (Ezsias v North Glamorgan NHS Trust 2011 IRLR 550).[53]Where there is some breakdown in the working relationship between an employee and a particular manager then dismissal may not be fair where the employer can reorganise their business to avoid this, for example, by appointing a different manager to oversee the employee (SA Brain and Co Ltd v Philippart EAT 0571/06).[54]If the respondent discharges the burden of showing that there was a potentially fair reason, the test then turns to the requirements of s98(4) for the Tribunal to consider whether dismissal was fair in all the circumstances of the case. There is a neutral burden of proof in relation to this part of the test.[55]In considering s98(4), the Tribunal should take into account all relevant factors such as the size and administrative resources of the employer. There are two matters which have generated considerable case law and which are worth highlighting[56]First, there is the question of whether an employer has followed a fair procedure in dismissing the employee. The well-known case of Polkey v AE Dayton Services Ltd [1987] IRLR 503 it was held that a failure to follow a fair procedure was sufficient to render a dismissal unfair in itself (although the compensation to be awarded in such cases may fall to be reduce to reflect the degree to which the employee would have been fairly dismissed if the procedural errors had not been made – the so-called “Polkey” reduction).[57]Procedural fairness includes giving an employee the opportunity to explain their actions or provide some form of mitigation.[58]The Tribunal should have regard to the ACAS Code of Practice on Disciplinary Practices and Procedures in Employment (“ACAS Code”) in assessing the procedural fairness of any dismissal as well as considering whether the employer had complied with their own procedures and policies.[59]On the question of whether the procedure followed by the employer was reasonable, the case of Sainsbury’s Supermarket v Hitt [2003] IRLR 30 is authority for the proposition that the band of reasonable responses test applies to conduct of the process leading to dismissal.[60]The second broad issue in considering s98(4) is that the Tribunal needs to consider whether the dismissal was a fair sanction applying the “band of reasonable responses” test. The Tribunal must not substitute its own decision as to what sanction it would have applied and, rather, it must assess whether the sanction applied by the employer fell within a reasonable band of options available to the employer.[61]The first question for the Tribunal is whether there is a potentially fair reason for dismissal. The respondent relies on the SOSR of a breakdown of the working relationship between the claimant and KVS. There is no suggestion of any other reason being in the mind of JM when he made the decision to dismiss; the claimant did not suggest any ulterior motive on the part of JM and there was no evidence of any other possible reason for his dismissal.[62]In these circumstances, the Tribunal finds that the breakdown in working relationships was the genuine reason for the claimant’s dismissal.[63]It is almost beyond question that a breakdown in working relationships between a manager and one of only three employees in an organisation was something more than minor or trivial. This would be a substantial reason that could potentially justify dismissal.[64]The question is whether it was reasonable for JM to conclude that there had been a breakdown in the working relationship based on the facts known to him at the time. The Tribunal considers that it was reasonable for the following reasons:a. The claimant had described KVS as “inconsistent, incompetent and untrustworthy” in his first grievance (p96) and in his second grievance (p129) had repeated the issue about competence adding comments about KVS’s mental health issue being a potential cause of how he had conducted himself. These are matters which would undoubtedly severely damage, if not destroy, the working relationship between the claimant and KVS.b. There was no material before JM that the claimant had reflected on these comments and had come to a different view that might allow for some form of reconciliation. Rather, the available material suggested that these comments still reflected the claimant’s views about KVS.c. The respondent had heard and determined the claimant’s grievance (including engaging a third party consultant to carry out the investigation as well as give the claimant the right to an appeal) but this had not resolved matters. The claimant’s stated position was that he did not agree with the outcome of the process.d. A system of 1-2-1 meetings had been put in place to try to improve communications between the claimant and KVS but these had not been successful.e. KVS had expressed the view that it would be difficult for him to continue to work with the claimant given what had happened.[65]In these circumstances, the Tribunal considers that it was reasonable for JM to conclude that the working relationship between the claimant and KVS had broken down.[66]The question is then whether dismissal was within the band of reasonable responses in such circumstances. The Tribunal reminds itself that it is not to substitute its own decision as to what it would have done nor is it deciding whether the respondent should have done something else. The Tribunal is deciding whether the decision to dismiss was within the band of reasonable responses open to the respondent in all the circumstances of the case.[67]This is not a case where there were any obvious alternatives that would avoid dismissal and mean that dismissal was not within the band of reasonable responses. The claimant did not suggest anything either at the time or at the Tribunal hearing. There was no alternative manager who could oversee the claimant’s work; KVS was the only manager in the organisation. It would not have been feasible for a Board member to take over managing the claimant; this would involve them in the day-to-day running of the respondent which is not their role; the claimant and KVS had to be able to work together in such a small organisation.[68]The only apparent alternative to dismissing the claimant that would have resolved the situation was to have dismissed KVS. This would have involved dismissing a manager whom the respondent considered to be competent leaving the organisation with no-one to run it on a day-to-day basis. The Tribunal considers that this was not a viable alternative.[69]Although the claimant did not advance an argument about a lesser sanction (such as a warning), the Tribunal bears in mind that he is a party litigant and so, in keeping with the Overriding Objective and the need for equality of arms, the Tribunal has given consideration to this. This was not a conduct or similar disciplinary case so a warning would have been an unusual sanction in the circumstances. Further, it would not have obviously solved the situation in which the respondent found itself of two of its four employees (one of whom was the manager of the organisation) being unable to work together.[70]In all these circumstances, the Tribunal considers that dismissal was within the band of reasonable responses open to the respondent.[71]In terms of procedure, the Tribunal considers that a fair procedure was followed. The claimant had been given the opportunity to pursue his grievance including an appeal, efforts had been made to repair the working relationship, he had been invited to a dismissal hearing where he had the opportunity to put his case and given the right to appeal the decision to dismiss him. It is difficult to criticise the process followed by the respondent and the claimant did not advance any particular case that his dismissal was procedurally unfair. Further, the process followed complies with the ACAS Code.[72]The Tribunal was conscious that a lot of the process was carried out by a third party provider but, given the respondent’s small size and resources, the Tribunal does not consider that this approach was beyond the band of reasonable responses.[73]In these circumstances, the Tribunal cannot identify any basis on which it could be said that the claimant’s dismissal was procedurally unfair.[74]For all these reasons, the Tribunal finds that the claim of unfair dismissal is not well-founded and is hereby dismissed.