Mrs P Ashong v Miss S Powell — 2023

Mrs P Ashong was employed as a personal assistant by Miss S Powell from 8 March 2022 until summary dismissal on 10 March 2023. The tribunal noted that, because the claimant had less than two years' service, she could not bring an ordinary unfair dismissal claim. At the case management stage, the claimant accepted that the respondent had not known of her pregnancy before dismissal, so pregnancy discrimination was not in issue. The only live unfair dismissal issue was whether the dismissal was automatically unfair under s.100 ERA 1996, on the basis that the dismissal was for a health and safety reason.

The tribunal accepted that there had been earlier concerns about the claimant's performance, and that on 10 March 2023 there was a dispute about whether she had made sufficient efforts to travel to work in heavy snow. The claimant sent a series of WhatsApp messages explaining the weather, her difficulty travelling, and her attempts to get in. The respondent gave a verbal warning by WhatsApp later that day, saying she did not believe the claimant had made enough effort and warning that further disciplinary action could follow. The claimant replied, and the respondent then sent a further message saying she did not like the claimant's tone. Later that evening the respondent summarily dismissed her, and the next day sent a letter listing reasons including inadequate performance, poor attempt to commute, reliance on her daughter, and a rude response to the warning.

The tribunal found that the principal reason for dismissal was the respondent's perception that the claimant had been rude in her message responding to the warning. It accepted that the respondent also relied on the claimant's alleged failure to come in on time, the effect on other staff, and previous perceived performance issues, but held that the earlier snow-related issue had already been dealt with by warning and was not the reason for dismissal. On that basis, the tribunal found that the claimant had not been dismissed for a reason falling within s.100 ERA 1996. The unfair dismissal claim was therefore dismissed.