Claimant v Bramble v Birch Tree Northern Ltd — 2022

The claimant, a part-time payroll and accounts administrator employed since 2011, was suspended in July 2020 after a commercial dispute involving her husband’s separate building work with the respondent. The tribunal found that the respondent’s investigation into alleged fraud was built on an incorrect assumption that the claimant worked two days per week, when it preferred her evidence that she had continued to work three days per week until the first lockdown. It also found there was an agreement from early 2019 that she could bank hours and be paid later, and that the respondent did not provide her with her 2019 or 2020 diary when the allegations were being investigated.

The tribunal held that the respondent did not carry out a reasonable investigation or have a reasonable belief in the claimant’s guilt. It found that the investigation did not identify specific days or hours said to have been falsely claimed, relied on assumptions rather than evidence, and did not properly assess the claimant’s actual work. The disciplinary hearing on 2 September 2020 was found to have been adjourned, but no reconvened hearing took place before the dismissal decision of 15 September 2020, and the claimant was not given a proper opportunity to respond to the additional documents later sent to her on 14 September 2020.

The tribunal therefore found the dismissal unfair under section 98 of the Employment Rights Act 1996 and rejected the respondent’s case that the claimant had been fairly dismissed for fraud. It found no reduction should be made for contributory conduct, no reduction should be made to the basic award or compensatory award, and no reduction was justified for failure to attend the appeal hearing. It also found that the respondent had unreasonably failed to comply with the ACAS Code by not reconvening the adjourned hearing and by not allowing a full opportunity to present the claimant’s case, so any compensation would be subject to an uplift under section 207A of TULR(C)A, with the amount to be determined at remedy.

On wages, the tribunal found the claimant was required to work during furlough in May 2020 to complete payroll work and should have been taken off furlough for that period. It rejected her case for overtime, but held that she had been underpaid the remaining 20% of her normal wages for the three weeks she worked in May 2020. On holiday pay, it rejected her case that five days should be carried over from the previous holiday year, but found that at termination she was entitled to accrued and outstanding holiday pay for 8.5 days after crediting one day already paid in August 2020.