Mr C Wallis, counsel For the v Respondent — 2021

The claimant, a Day Opportunities Worker, was dismissed after allegations about two visits during the first Covid-19 lockdown: a 24 March 2020 visit to MB and a 5 April 2020 visit to KM. The tribunal accepted that the 24 March visit was a genuine rota mistake, that he put his head around MB's door rather than fully entering the property, and that he visited KM on 1 April 2020 in line with the rota. It also noted that the holiday pay claim had been withdrawn and dismissed on withdrawal.

The unfair dismissal claim succeeded because, although Ms Baty and Mr Nicklin genuinely believed misconduct had occurred, the dismissal was outside the range of reasonable responses. The tribunal found serious flaws in the investigation: Mr Penna did not include the claimant's 5 April KM note in his report, did not gather other visit records for the relevant week, did not fairly deal with Jon Cooke's email evidence, did not ask available witnesses further questions, and added a PPE allegation without giving the claimant a proper opportunity to respond. It also held that the charges were framed on a false premise by fitting the facts into misconduct labels rather than properly analysing what had happened. The appeal decision did not cure those earlier defects.

The wrongful dismissal claim also succeeded because the tribunal held that the claimant's conduct did not amount to gross misconduct. It found that the MB incident was not a deliberate breach and that, at that stage of the pandemic, there was a reasonable debate about when masks should be put on. It further found that the KM visit on 1 April was authorised and that the 5 April date in the claimant's note was wrongly entered. The tribunal did not quantify any monetary award in this judgment, but it held that any compensatory award would be reduced by 10% for contributory conduct under s.123(6) ERA 1996.