Case 1303609/2019 · Employment Tribunal
Miss A Dawson v Mr C Malpass — 2021
- Case reference
- 1303609/2019
- Decision date
- 3 August 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Noons Representation
- Venue
- Birmingham
Parties
2 namedClaimant
Miss A Dawson
Respondent
Key findings
Tribunal's reasoningMiss Dawson worked as a care coordinator for Mr Malpass from 20 August 2016 until she was dismissed without notice on 8 January 2019. The dismissal arose after a December 2018 incident in which a family member sustained burns to both feet while in her care. The respondent suspended her on 6 December 2018 after speaking to police and medical staff, then dismissed her for gross misconduct by letter of 8 January 2019. The letter alleged gross neglect and abusive behaviour on Ward 111, and it offered an appeal which was not heard. The claimant was later charged, but the CPS offered no evidence after an expert report and she was acquitted.
The tribunal found that the respondent had a genuine belief in the claimant’s guilt and that belief was based on reasonable grounds, including the care logs, the medical evidence, the fact that Sudocrem had been applied to both feet, the claimant’s explanation to the respondent and hospital staff, and the evidence that care workers were banned from the ward because of her conduct. However, the dismissal procedure was not reasonable within section 98(4) ERA 1996. The claimant was not told until the dismissal letter that she was at risk of dismissal for gross misconduct, she was not accurately told all of the allegations, and she was never given a hearing or a real opportunity to answer the case against her.
The tribunal therefore held that the dismissal was unfair. It also found, applying Polkey, that even if a fair investigation and disciplinary process had been followed, the claimant would probably have been fairly dismissed two weeks later, on 22 January 2019, for gross misconduct. On contributory conduct, the tribunal found that the claimant realised there had been some sort of injury to both feet, downplayed the seriousness of the injury, tried to cover it up by suggesting a Sudocrem reaction, and behaved rudely and abusively to medical staff. It reduced the basic award by 50% and the compensatory award by 50%, but did not quantify the sums and listed the matter for a two-hour remedy hearing.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Liability judgment only. The tribunal found the dismissal unfair but said that, had a fair process been followed, the claimant would probably have been dismissed two weeks later; basic and compensatory awards were to be reduced by 50% for contributory fault, with quantum left to a remedy hearing. | Upheld | — | — |
Legal tests applied
9 references- s.98(4) ERA 1996
- Burchell
- Post Office v Foley
- band/range of reasonable responses
- Iceland Frozen Foods Ltd v Jones
- Sainsbury's Supermarkets Ltd v Hitt
- Polkey v AE Dayton Services Ltd
- s.122(2) ERA 1996
- s.123(6) ERA 1996
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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