Miss A Curtis v Milltek Sport Ltd — 2021

Miss A Curtis was the Respondent’s Accounts and HR Manager. In April 2019 she told Chairman Mr Phillip Millington that Managing Director Mr Steven Pound was misusing the company credit card and expenses, including personal items, gifts sent to his girlfriend, and car parts for his own vehicle. The tribunal found that she did make that disclosure to Mr Millington, that it was a disclosure of information rather than a bare allegation, and that she genuinely and reasonably believed it tended to show fraud and a breach of legal obligation. It also found that she reasonably believed the disclosure was made in the public interest.

After Mr Golding later made allegations about confidential information, Mr Pound suspended the Claimant on 20 August 2019. The tribunal found that Mr Pound was aware of the protected disclosure before suspension and that the suspension was not based on the corroboration he claimed to have found. It found there was no proper investigatory meeting, that the suspension letter overstated the investigation that had been carried out, and that the Claimant was not given enough detail to answer the allegations. It also found that the document dated 2 September 2019, relied on as a note of Mr Golding’s account, was produced only after the Claimant challenged the absence of written evidence.

The disciplinary process was found to be unfair. Mr Thorpe, who chaired the disciplinary hearing on 6 November 2019, relied on Mr Pound’s account and on an anonymised account from Mr Golding without properly testing the evidence, identifying the witness to the Claimant, or disclosing relevant interview notes and later witness interviews. The tribunal found that Mr Pound had embellished Mr Golding’s account in material respects, including by adding salary, dividend and address details that were not actually recorded in his original notes, and that Mr Pound spoke to Mr Thorpe during the process despite saying he had no input. It held that the Respondent’s process breached the ACAS Code and fell outside the band of reasonable responses.

The tribunal upheld the whistleblowing detriment claim under s.47B ERA 1996, finding that the protected disclosure materially influenced the suspension, the failure to hold an investigatory meeting, the late provision of evidence, and the addition of allegations during the process. It also upheld automatic unfair dismissal under s.103A ERA 1996, finding that the principal reason for dismissal was the protected disclosure and that Mr Pound’s motivation was attributed to the employer under the Jhuti principle. Ordinary unfair dismissal under s.98 ERA 1996 also succeeded because the stated misconduct reason was not the real reason and, in any event, the investigation and disciplinary procedure were inadequate.

On remedy, the tribunal accepted the Claimant’s mitigation evidence and awarded a basic award of £3,150 and injury to feelings of £4,750 for the detriment claims. It found no contributory fault and no Polkey deduction. It applied a net ACAS uplift of 15% to the compensatory award, reflecting a 20% uplift for employer breaches of the Code less 5% for the Claimant’s failure to appeal. The compensatory award was assessed as loss of salary and benefits from 8 November 2019 to the hearing on 26 May 2021, with any amount over £30,000 to be grossed up, but the final figure was left to be calculated after the hearing, so the judgment does not state a final total award.