Mrs C Foody v Pinpoint Recruitment Limited — 2021

Mrs C Foody was employed by Pinpoint Recruitment Limited from 25 July 2016 and held a senior healthcare operations role. After a serious horse-riding accident on 31 March 2019 she was off work for many months, received regular sick notes, and was paid full salary for a period on a discretionary basis despite only being contractually entitled to statutory sick pay. The tribunal recorded that the respondent became concerned, after investigation, that while the claimant said she was unfit for work she was undertaking activities connected with family businesses and other personal business interests.

The tribunal accepted the respondent's evidence that, following a welfare meeting, grievance process and disciplinary investigation chaired by Terence Carney, it formed a genuine belief that the claimant had committed misconduct. The allegations upheld included that she had been working or engaging in activities indicating she was well enough to work while receiving full pay, failing to fully participate in absence management, withholding consent for medical advice, using company email for personal business matters, and sending confidential work emails to a personal account. Applying the British Home Stores v Burchell approach, the tribunal found that belief was based on reasonable grounds and followed a reasonable investigation.

Under section 98(4) ERA 1996 and the band of reasonable responses approach, the tribunal held that the dismissal was fair. It accepted that there were some troubling features of the process, including the same person carrying out both investigation and disciplinary functions and the short timetable over the Christmas period, but found that the hearing was in fact postponed to 10 January 2020 and the claimant had adequate time to prepare. The tribunal also noted that she did not appeal. On that basis, the decision to dismiss was held to fall within the range of responses open to a reasonable employer.

The tribunal further found that the claimant's conduct amounted to gross misconduct and that summary dismissal without notice was justified, so the claim for notice pay failed. In relation to holiday pay, the tribunal granted the claim for unpaid annual leave but held that no further payment was due because amounts had already been paid and the respondent's counterclaim could be set off. The respondent's counterclaim concerning repair and cleaning costs for the company car was allowed, with no separate payment order because the sum had been deducted.