Miss Gemma Batty v The Woof Inn Limited — 2021

Miss Gemma Batty was dismissed by The Woof Inn Limited on 5 August 2020 after a period of dispute about furlough, childcare, annual leave and her conduct towards Miss Martin. The tribunal accepted that the respondent followed no disciplinary procedure at all, so unfair dismissal was conceded and upheld. Applying section 98 ERA 1996 and the range of reasonable responses approach, the tribunal found the principal reason for dismissal was conduct, not capability: the claimant had sent WhatsApp messages undermining Miss Martin and had called her a 'bitch' to Miss Fletcher on 6 July 2020. It also found that the claimant would have been dismissed in any event after a fair procedure, with the process likely taking about two weeks.

The tribunal accepted that the claimant's May messages and her conduct on 6 July 2020 were culpable and blameworthy. It found that the claimant did not prove she had actually been working cleaning caravans while on unpaid leave, although Miss Martin believed that she had. The tribunal held that, if there had been a fair disciplinary process, Miss Martin would have investigated, held a hearing, and likely reached the same conclusion on misconduct. An appeal would probably have been heard by Mr Yeates and would also have upheld dismissal. The tribunal therefore made Polkey findings that any compensatory award would be limited to the extra two weeks the claimant would have remained employed had a fair procedure been followed, and it reserved the question of any reduction for contribution and any basic award reduction to the remedy hearing under sections 122(2) and 123(6) ERA 1996.

The indirect sex discrimination claim failed. The respondent accepted three PCPs: requiring employees to return from furlough from 1 June 2020, not allowing children in the workplace from June 2020, and not allowing block booking of annual leave during the school summer holidays. For the return-to-work PCP, the tribunal accepted that women and the claimant were at a particular disadvantage, but found the measure was justified as a proportionate way to reopen the business and comply with staffing and licensing requirements. For the children-in-workplace PCP, it found the claimant was not put at that disadvantage because she did not want to bring her daughter into work, and in any event the rule was justified by the Covid-19 context and government guidance. For the holidays PCP, the tribunal held the claimant had not established group disadvantage to women or particular disadvantage to herself, and would in any event have failed on justification because the respondent needed to balance annual leave with summer cover.