Case 1800840/2021 · Employment Tribunal
Mrs N Khan v Bradford Metropolitan District Council — 2021
- Case reference
- 1800840/2021
- Decision date
- 7 October 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Parkin Representation
Parties
2 namedClaimant
Mrs N Khan
Respondent
Key findings
Tribunal's reasoningMrs N Khan had worked as a Clerk to the Governors since 18 May 2007, first through Serco/Education Bradford and then, after the 2011 TUPE transfer, for Bradford Metropolitan District Council. Although the written terms used the words "casual" and "intermittent", the tribunal found the contract and the reality of the arrangement pointed to a contract of employment: the claimant had continuous service from 2007, received training and equipment, was paid maternity pay and holiday pay, and worked within an organised pattern of allocated schools and term-time meetings. It therefore held that she was an employee with sufficient continuity for unfair dismissal and wrongful dismissal claims.
The dismissal arose after a Trust told the claimant in August and early September 2020 that it would not renew the council's School Governor Services contract and asked her to clerk the schools directly. She agreed to do so and only notified the council after being asked by her line manager about meeting dates. The council ended her engagement on 9 October 2020 without a disciplinary hearing or appeal. The tribunal accepted that conduct was the reason for dismissal and that the claimant had acted in breach of her duty of fidelity by entering direct work with the schools while still engaged through the council, but it held the dismissal was unfair because the council did not investigate properly, did not allow her to present her case, and did not provide any appeal. It also rejected the respondent's comparison with other clerks, finding the situations relied on were not truly or sufficiently similar.
On wrongful dismissal, the tribunal found the claimant's conduct was serious misconduct but not gross misconduct and not a repudiatory breach of contract. It therefore held that summary termination without notice was wrongful and that damages equivalent to 12 weeks' pay would follow, with quantification left to the remedy hearing. For unfair dismissal, the tribunal found a 50% Polkey deduction was appropriate and that the claimant had contributed to her dismissal to the extent of 60%. It noted that any ACAS Code uplift would be considered at the postponed remedy hearing, which was listed for 9 December 2021.
Claims and outcomes
2 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Liability was upheld, but remedy was postponed to 9 December 2021. The tribunal made a 50% Polkey deduction and found 60% contributory conduct at the liability stage. | Upheld | — | — |
| Wrongful dismissal | The tribunal held the claimant was entitled to notice pay because the conduct found did not amount to gross misconduct or a repudiatory breach. Damages were to be assessed at the later remedy hearing. | Upheld | — | — |
Legal tests applied
12 references- s.230(1) and (2) ERA 1996
- Autoclenz v Belcher
- Carmichael v National Power plc
- s.98(1), (2) and (4) ERA 1996
- Burchell test
- Hadjioannou v Coral Casinos Ltd
- ACAS Code of Practice 1 (2015)
- s.122(2) ERA 1996
- s.123(6) ERA 1996
- Polkey v AE Dayton Services Ltd
- s.86 ERA 1996
- Customer Systems plc v Ranson
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.
How we got this data
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