Ms A Housley v A M Clark Limited — 2020

The respondent was a small pharmacy and retail business in Penistone, Sheffield. The claimant worked as a pharmacy assistant. The tribunal heard evidence about a sequence of incidents in late May in which the claimant was said to have been abrupt with a hard-of-hearing customer, to have argued with Mr Adam Clark, and to have made threatening and aggressive comments to Melanie Housley, who was involved in management. The claimant was then suspended, invited to a disciplinary hearing, did not attend the first listed hearing, attended a rescheduled hearing, and was dismissed for gross misconduct. The judgment's facts and conclusions sections refer to different years for the May incidents, but the findings relate to the same sequence of events.

On liability for unfair dismissal, the tribunal accepted that conduct under section 98(2)(b) ERA 1996 was the potentially fair reason relied on by the respondent, but it held that the dismissal was unfair under section 98(4) ERA 1996. The tribunal found that the investigation was not sufficiently detailed, that Mr Clark did not probe the claimant's account at the disciplinary hearing, that he was not an impartial and appropriate decision maker because he was a witness to part of the events and the key allegation came from his partner, and that the appeal did not cure the earlier defects. It concluded that the dismissal fell outside the band of reasonable responses.

The tribunal did not find an unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015, so it declined any uplift. It nevertheless found, largely on the claimant's own admissions, that she behaved inappropriately and aggressively, and it reduced both the basic award and compensatory award by 75% to reflect her conduct. There was no Polkey reduction. The separate breach of contract claim succeeded because the tribunal held that the claimant's conduct was not repudiatory and did not justify summary dismissal; damages were left to be assessed at the remedy hearing by reference to her contractual notice entitlement.