Ms A Portosi v MacAusland Design Limited — 2022

Ms A Portosi was employed as an architect from 2 May 2017 until her dismissal with effect from 30 September 2020. The tribunal found that the respondent relied on conduct issues arising from Adobe Illustrator training during furlough, failure to complete a training test by 28 July 2020, and the claimant being abroad in France during furlough. It accepted that training could be required during furlough and found that the claimant had completed only limited training and had not completed the test, but it did not treat being abroad on furlough, of itself, as misconduct. The judgment was liability only, with a remedies hearing listed for 21 July 2022.

The unfair dismissal claim succeeded because the dismissal was procedurally unfair under s.98(4) ERA 1996. Applying the Burchell test and the band of reasonable responses approach, the tribunal held that Mr MacAusland had a genuine and reasonable belief in misconduct as to the training and test issue, but that there had been no proper or reasonable investigation before the disciplinary process. It also found that the appeal was not heard independently, which was unfair in the circumstances and contrary to the ACAS Code of Practice. The tribunal made no Polkey reduction because the respondent had not shown that a fair procedure would have led to dismissal in any event.

The tribunal did, however, find contributory conduct and reduced any compensatory award by 50% under s.123(6) ERA 1996. It found that the claimant’s conduct was culpable because she carried out minimal training and refused to complete the test, and that her poor working relationship with Mr MacAusland meant she did not communicate her concerns to him before raising her grievances. The tribunal found that if she had raised the advice she said she had received, or engaged more clearly with the respondent, the outcome may have been different.

The whistleblowing claim failed. The tribunal found that the alleged health and safety disclosure about the 12 September 2019 roof inspection was not made in the public interest because it was only raised in late July 2020, shortly before the training deadline. It also found that the furlough-related disclosure was not made on a reasonable belief that the respondent was breaching legal obligations and was not made in the public interest. Even if there had been a protected disclosure, the tribunal found that the principal reason for dismissal was the claimant’s refusal to carry out the training and test, not whistleblowing. The wrongful dismissal claim also failed because the tribunal held that summary dismissal was justified by gross misconduct/serious insubordination.