Ms M Nieoczym For the v Respondent — 2019

The claimant, Barbara Komorowska, worked for the respondent as a housekeeper and also did some carer shifts. The dispute arose after she said that she was trapped in a lift on 27 July 2018, later developed neck pain, and was then signed off work. The respondent treated the fact that she was later seen working in a light-duty role at the Imperial Hotel as suspicious and began an investigation into alleged fraud, deception and possible misuse of SSP.

The tribunal found that the respondent’s investigation and disciplinary process were not fair. It held that Pearl Jackson, Helen Buncombe and Jeremy Davies approached the matter with a pre-formed view that the claimant’s account was false, and that the investigation was marked by confirmation bias. The tribunal found that the claimant was denied a companion at the investigation meeting, that the use of a Polish-speaking colleague did not fairly operate as an interpreter, and that the claimant was effectively prevented from giving her account properly. It also found that key matters, including the absence of any formal lift-company report and the GP letter stating that the claimant had not previously attended with neck pain, were not properly or consistently considered.

Applying section 98(4) ERA 1996 and the Burchell approach, together with the ACAS Code and Polkey, the tribunal held that the respondent did not have reasonable grounds, after a reasonable investigation, for believing the claimant guilty of gross misconduct. It accepted that the respondent may have had a genuine belief, but found that belief was not based on a proper investigation. The tribunal also refused any Polkey or contributory fault reduction, finding that a fair process was unlikely to have resulted in dismissal and that no reduction was justified for the claimant’s conduct. The judgment records liability only and states that the case would be relisted for a remedy hearing.