In person For the v Mr C Smart, Director — 2022

Miss Amanda Dunn worked as the respondent's office administrator from 9 January 2017 until her dismissal by letter dated 2 May 2020, received on 6 May 2020. The dispute arose during the early Covid-19 lockdown period. The tribunal found that the respondent offered reduced hours in a safe office environment, while the claimant wanted to remain at home and had concerns about returning to the office and about her elderly mother's condition. The claimant's mother was found to be disabled for Equality Act purposes, but the dismissal letter and the surrounding correspondence were treated as turning on the claimant's absence from work and the respondent's perception of misconduct, together with a reduced need for her work.

The tribunal held that the claimant was unfairly dismissed under the ordinary unfair dismissal provisions. It found the dismissal was both procedurally and substantively unfair because there was no suspension, no disciplinary hearing, no investigation of the claimant's position, no opportunity for her to state her case, and no appeal. Applying s.98(4) ERA 1996 and the authorities it cited, including Burchell and the band of reasonable responses approach, the tribunal concluded that summary dismissal for gross misconduct was not made out on the balance of probabilities and that the respondent had not taken reasonable steps to explore or resolve the dispute, including whether home working or some other arrangement might have been possible.

The tribunal dismissed the whistleblowing automatic unfair dismissal claim because it was not satisfied that the claimant had made a protected disclosure within the statutory definition. It also dismissed the health and safety automatic unfair dismissal claim, although it accepted that the claimant had raised concerns about whether it was safe to work in the office within s.100(1)(c) ERA 1996. In relation to disability discrimination by association, the tribunal accepted the mother's disability but found no evidential basis that the claimant was dismissed because of that disability or that a comparator would have been treated differently. The claims for accrued holiday pay and a statutory redundancy payment were also dismissed.

On remedy, the claimant did not seek reinstatement or re-engagement. The tribunal awarded a basic award of £1,854.00 and a compensatory award of £10,148.88 for unfair dismissal, made up of £9,648.88 for 29 weeks' loss to 31 December 2020 and £500 for loss of statutory rights. It applied a 25% ACAS uplift, producing a total unfair dismissal award of £15,003.60. The tribunal also awarded £1,201.35 for breach of contract notice pay and £824.00 for failure to issue a written statement of employment particulars, and it recorded that the Recoupment Regulations applied to the unfair dismissal award.