Ms Y Kisheva v Secure Frontline Services Ltd — 2023

The tribunal found that Ms Y Kisheva left her shift at Ice Wharf on 29 January 2022 after an argument with a colleague and did not telephone Secure Frontline Services' central number as required by the respondent's code of conduct. It rejected her case that she left because of a health emergency, finding that the contemporaneous accounts and CCTV did not support that explanation and that the reason for leaving was her upset after the argument. The tribunal accepted that she knew of the obligation to call in and found that leaving the venue without doing so left the site short-handed on a busy Saturday evening.

On the unfair dismissal claim, the tribunal accepted that the reason for dismissal was conduct within s.98(2)(b) ERA 1996 and that Mr Sandulescu genuinely believed Ms Kisheva was guilty of misconduct on reasonable grounds. However, applying s.98(4) ERA 1996 and the Burchell test, it held that the investigation and dismissal process was procedurally unfair: she was not told she faced a disciplinary allegation, there was no investigatory meeting or disciplinary meeting, her explanation was not properly explored, and she was not told of any right of appeal. The tribunal concluded that, despite the potentially fair reason, the dismissal was unfair.

For remedy, the tribunal reduced the basic award by 100% under s.122(2) ERA 1996 and reduced the compensatory award by 100% under s.123(6) ERA 1996 because it found Ms Kisheva's own conduct caused the dismissal. It said there was therefore no basic award or compensatory award. It also said that, if there had been a compensatory award, it would have applied a 75% Polkey reduction and a 20% uplift for Acas Code failures, but those issues were academic because the award was nil. The wrongful dismissal claim was dismissed because the tribunal held that the claimant's conduct amounted to abandonment of contract and a fundamental breach entitling the respondent to dismiss summarily.