In person For the v Respondent — 2021

The tribunal held that the claimant’s dismissal was unfair. The respondent relied on some other substantial reason, namely an alleged irretrievable breakdown in the working relationship after the claimant went to the Miners Rest public house on 20 March 2020 during the early Covid-19 period. The tribunal accepted that the claimant broke no law and no instruction from the respondent, and found there was insufficient evidence that she had heard the Prime Minister’s 20 March speech. It also found the pub was virtually empty and that the respondent initially accepted the claimant’s explanation on social media.

The tribunal accepted that a personal care relationship is a special one and that the respondent was entitled to place weight on her daughter’s welfare, but it found that a reasonable employer with knowledge of the full facts would not have concluded that the relationship had irretrievably broken down. It noted that there had been no criticism of the claimant’s care, no complaint from Ms Berry, and no evidence that the claimant would not have continued to comply with the existing hygiene arrangements. The tribunal also treated the respondent’s later reliance on “reassurance” and the change in stance between the disciplinary and appeal stages as unsupported by cogent evidence.

The tribunal rejected an uplift under section 207A TULCRA 1992 because, following Phoenix House Ltd v Stockman, the ACAS Code did not apply to this SOSR dismissal based on breakdown of working relationships. It also made no Polkey reduction, finding that the respondent had already reached a closed view and had not proved that the claimant would have been dismissed fairly in any event. However, the tribunal did find contributory conduct: it considered the claimant had acted unwisely in going to the pub after the Prime Minister’s guidance and had not given a sufficiently full explanation, so it ordered a 20% deduction from any compensatory award.