Oksana Babajeva v Gabokun Dental Care Limited t/a East Dulwich Dental Care — 2024

The claimant worked as a receptionist from 4 March 2019. In spring 2023 relations between the claimant and a co-receptionist, Ana, deteriorated. Ana emailed Dr Ighodaro on 6 April 2023 saying she was being bullied and harassed by the claimant, and Dr Samadi was asked to investigate. The tribunal noted that no written investigation outcome was produced and Dr Samadi was not called to give evidence. On the evidence before it, the tribunal found there was no evidence that the claimant had actually bullied Ana, but rather that the two colleagues did not get along and had a personality clash.

On the morning of 9 May 2023 Ms Olte handed the claimant a dismissal letter terminating employment with immediate effect and stating that the reason was alleged bullying of colleagues. The respondent said the dismissal was later revoked during an afternoon meeting, but the tribunal found that the contractual appeal and written confirmation requirements in the handbook were not followed. There was no written appeal by the claimant and no written confirmation from the respondent that dismissal had been suspended or revoked, so the purported revocation was not effective. The tribunal therefore found that the claimant was summarily dismissed on 9 May 2023 and that the effective date of termination was 9 May 2023.

Applying the conduct dismissal provisions, including the Burchell approach and the s.98(4) ERA reasonableness test, the tribunal held that the respondent did not prove the reason for dismissal was misconduct. It found that Ms Olte and Dr Ighodaro could not identify specific incidents beyond the Ana issue, that the respondent had no properly documented history of concerns, and that the investigation had related only to the Ana complaint, which had effectively been resolved by Ana's resignation on 5 May 2023. The tribunal also found that, even if misconduct had been relied on, the dismissal was not within the range of reasonable responses and was substantively and procedurally unfair. It rejected contributory fault and awarded a 25% ACAS uplift because the respondent did not follow its own process or the ACAS Code.

The tribunal held that the claim was presented out of time on the face of the dates, because the ET1 was lodged after the three-month period running from 9 May 2023. It nevertheless extended time under s.111(2)(b) ERA 1996, finding it was not reasonably practicable for the claimant to present the claim in time given the confusion about her employment status and the respondent's lack of clear communication, and that she acted promptly once the position became clear. Remedy was assessed at a basic award of £1,944 and a compensatory award of £7,001.13, made up of agreed loss, £300 for loss of statutory rights, £600.21 for pension loss during the compensatory period, less £1,638.14 already paid by the employer, plus the 25% uplift. The total award was £8,945.13. The tribunal dismissed the holiday pay element as out of time and made no injury to feelings award because there was no discriminatory element.