Mrs M Garner v Cooper Residential Homes Limited — 2024

Mrs Garner was employed as a care assistant and the tribunal found that her employment began on 14 October 2000. The only claim before the tribunal was unfair dismissal. The respondent said she was dismissed for gross misconduct connected with allegations made after Mr Buckley resigned in August 2023, including alleged homophobic comments and inappropriate comments to residents.

The tribunal found that the respondent did not really believe Mrs Garner was guilty of the misconduct with which she was charged. It held that the decision-maker accepted some allegations that were not supported by the evidence, including two charges which Mrs Lumb accepted were not misconduct even on her own evidence, and that the respondent relied on witness statements whose reliability was undermined by the way they were produced. The tribunal also found that the investigation was flawed because there were no notes of staff meetings, the statements were written up later from memory, there were unexplained differences between the earlier questionnaires and the later statements, and some questions put to witnesses were leading.

The tribunal further found that the appeal was unsatisfactory and amounted in effect to a rubber-stamping exercise, with the respondent accepting the Croner report without critical analysis and the appeal report itself dealing with allegations that were not even part of the disciplinary charges. Applying section 98 ERA 1996 and the Burchell line of authority, the tribunal held that the respondent failed to prove a potentially fair reason for dismissal and, in any event, did not act reasonably in treating the matter as sufficient reason to dismiss.

On remedy, the tribunal rejected any Polkey reduction, saying it would be pure guesswork to predict what would have happened under a fair procedure. It also rejected any reduction for contributory fault, finding that the only potentially relevant act was Mrs Garner telling a resident to mind his manners, which the respondent accepted was not misconduct. Remedy was left to be determined at a future hearing, so no monetary award was fixed in this decision.