Ms K Snarska v Finanspol Group Ltd — 2023

Ms K Snarska had worked for Finanspol Group Ltd since 6 February 2015, moving from a secretary role into accountancy work and often working remotely. In February 2022, after the respondent said it was in financial difficulty, Lidia Kaminska proposed that the claimant move to self-employment and accept lower pay. The tribunal found that the true reason for the first dismissal, on 10 March 2022, was the claimant's refusal to accept that proposal, not misconduct. The dismissal letter relied on vague allegations of negligence and loss of trust, but those allegations were not supported by evidence.

Applying the Burchell and related fairness authorities, the tribunal found that the respondent's investigation was not reasonable, that the claimant was not told a proper case against her before dismissal, and that she had no proper opportunity to respond or appeal. It found no reasonably held belief in misconduct, and noted that the respondent had no disciplinary procedure. The tribunal also rejected the respondent's later attempt to justify the dismissal by reference to matters said to have been discovered after the claimant's computer was returned, because those matters could not have been part of the dismissal decision made earlier. The summary dismissal on 25 March 2022 was also not justified: the respondent did not prove gross misconduct, and the tribunal rejected the allegations in relation to other work and the Skoroda Ltd example.

The tribunal also rejected contributory fault. It found that the respondent had been aware that the claimant undertook other work during her employment and had not treated that as misconduct before February 2022. Although the dismissal was unfair, the tribunal made a 50% Polkey reduction to the compensatory award because the respondent was genuinely in serious financial difficulty and there was a material risk the claimant would have been dismissed for redundancy later in any event. It then applied a 25% uplift for unreasonable failures to comply with the Acas Code, including the lack of investigation, notice, meeting, right to be accompanied, and appeal.

On the money claims, the tribunal held that the claimant was entitled to notice pay for the balance of her seven-week notice period, which was five weeks. It found that the respondent unlawfully withheld pay from 6 to 25 March 2022 because the claimant continued to work during that period. The holiday pay claim succeeded only for accrued untaken holiday from 6 February 2022 to 25 March 2022; the claim for earlier holiday years failed because the tribunal was not satisfied that there had been any agreement to carry leave forward, and the claimant had chosen not to take leave in those years. The total award was £9,063.83, subject to appropriate statutory deductions, made up of wrongful dismissal pay, a basic award, a compensatory award, unpaid wages, and holiday pay.