Miss S M Carlyon v Connor Associates Limited — 2021

Miss S M Carlyon was employed by Connor Associates Limited from 9 November 2019 and was summarily dismissed for gross misconduct on 12 March 2020. The tribunal described the case as confined to breach of contract (failure to pay notice pay), because she did not have two years' qualifying service for an unfair dismissal claim. The dispute arose from events on 23 February 2020 at The Grange and Firtrees, including whether she had been authorised by Harry Armer to go to Firtrees and what welfare checks she carried out while away from The Grange.

The tribunal found that the respondent's investigation was inadequate. It said the claimant was not invited to a disciplinary investigation meeting, was not supplied with a disciplinary pack, and that relevant witnesses and records were not properly explored, including phone logs and contemporaneous evidence. It also found the respondent's evidence about what Harry Armer had said was inconsistent, and that the respondent had not sufficiently checked the claimant's account that she was told she could go to Firtrees and continue welfare checks from there.

Applying an objective breach-of-contract analysis, the tribunal held that the respondent had not shown on the balance of probabilities that the claimant's conduct amounted to a repudiatory breach that deprived her of notice pay. It accepted that there were shortcomings by the claimant, but concluded they were not so serious as to justify withholding her contractual notice entitlement. The tribunal found that the contractual notice due was one week's pay, agreed at £248.19 net.

The tribunal then applied section 207A of TULR(C)A 1992. It held that the disciplinary process had not complied with the ACAS Code of Practice in material respects, including investigation and disciplinary stages, and that the appeal did not cure those defects. It therefore increased the award by 20%, adding £49.63, and ordered the respondent to pay a total of £297.82 net. The tribunal said it had no jurisdiction to order a reference or any further sums.