Peace Ndugba v Royal Mencap Society — 2021

The claimant brought an unfair dismissal claim, later amended to include wrongful dismissal. Claims for unlawful deduction of wages had been dismissed on withdrawal. The respondent argued that the tribunal lacked jurisdiction over unfair dismissal because the claimant’s employment started on 14 August 2017, less than two years before dismissal on 9 August 2019. The tribunal found that paid, mandatory shadow shifts from 31 July 2017 were work under the contract of employment, rejected the argument that continuity was broken between 7 and 13 August 2017, and held that it had jurisdiction to decide the unfair dismissal claim.

The reason for dismissal was conduct. The tribunal found that Ms Battin genuinely believed the claimant had neglected a vulnerable service user, and had reasonable grounds for that belief based on the video evidence, evidence from Esther Sanni, the contemporaneous accident report, inconsistencies in the claimant’s accounts and logs, and the service user’s care plan. Although the tribunal noted criticism could fairly be made of the decision not to show the claimant the video at the investigation interview, the video was sent before the disciplinary hearing and the respondent’s overall investigation remained within the range of reasonable responses.

The tribunal also found that proceeding with the disciplinary hearing in the claimant’s absence was within the range of reasonable responses, because the hearing had already been adjourned, the claimant had been suspended for a considerable period, the allegation was extremely serious, and she had been offered alternatives including telephone, Skype or written submissions. The tribunal described the refusal to permit an out-of-time appeal as harsh, but found it was not outside the band of reasonable responses given the evidence, the claimant’s engagement with the process, the apparent grounds of appeal, and the appeal deadline she had been given. The unfair dismissal claim was dismissed.

For wrongful dismissal, the tribunal applied the balance of probabilities and found the claimant was guilty of gross misconduct. It found strong evidence that she failed to check on the service user in accordance with the care plan, relied on Ms Sanni’s evidence, inconsistencies in the claimant’s accounts and the video evidence, and was not satisfied with the claimant’s evidence. The tribunal found the misconduct justified dismissal without notice, so the respondent did not act in breach of contract. No compensation or other monetary remedy was awarded; the £11,700 figure in the judgment was the annual salary stated in the claimant’s 2017 offer letter, not an award.