Claimant v Medequip Assistive Technology Ltd

Outcome

Facts

Mr Tamponi was dismissed from his role as Warehouse and Cleaning Operative after refusing to undergo an enhanced DBS check. At a previous liability hearing, the tribunal found the dismissal unfair because the statutory DBS regime did not permit such a check for his role. This remedy hearing proceeded in Mr Tamponi's absence — he emailed at 7:35am on the hearing day saying he would not attend due to uncertainty about the issues, though the tribunal found no good reason for non-attendance. The respondent was represented by leading counsel and called two witnesses (Mr Firth and Mr Cook) who maintained that their contracts required enhanced DBS checks for all staff, though the tribunal found this view was genuine but legally misconceived.

Decision

The tribunal declined to order reinstatement (the depot had closed) or re-engagement (no suitable vacancies, unclear whether claimant would accept, and practical difficulties given respondent's continuing insistence on a DBS check claimant would not agree to). The tribunal awarded a basic award of £1,695.24 and compensatory award of £4,217.49 (three months' loss), reduced for failure to mitigate but with no Polkey or contributory fault reductions. The tribunal found Mr Tamponi had not made reasonable efforts to find new work — he delayed two months before applying, then averaged only one application per week with long gaps. The tribunal rejected arguments for Polkey reduction (no fair dismissal was possible) and contributory fault (claimant was entitled to insist on his rights regarding DBS checks).

Practical note

Award breakdown

Legal authorities cited