Miss C Fisher v Gwanmesia Plastic Surgery Limited — 2021

The tribunal found that the claimant's principal reason for dismissal was her text on 10 September 2018 saying she could not attend because her son had been unwell overnight. It accepted that the child was ill, that nursery attendance was not possible, and that the claimant was taking action covered by s57A ERA 1996. The respondent's later criticisms about performance were not accepted as the principal reason for dismissal; the tribunal found that by 10 September, and certainly by 13 September, the respondent had become set on dismissal and was seeking a pretext. It therefore upheld automatic unfair dismissal under s99 ERA 1996, but reduced the basic and compensatory awards by 30% because of the claimant's own failings and covert recording of the 13 September meeting, and applied a 20% uplift under s207A because the ACAS Code was not followed. No final monetary award was fixed in this liability judgment.

The direct sex discrimination claim failed. The tribunal accepted that the respondent used the phrase 'this girl' in emails, but held that the treatment complained of arose from the claimant's taking time off to deal with her sick child, not because she was a woman. It found there was no sufficient basis to infer that a male employee in materially similar circumstances would have been treated differently, and it rejected the submission that the respondent's dishonesty about his reasons necessarily proved sex discrimination. The burden of proof under s136 Equality Act 2010 was not shifted, and the claim was dismissed.

The claimant's wrongful dismissal claim succeeded because her contract entitled her to one month's notice after probation, the respondent did not lawfully dismiss her without notice, and she was only paid to 17 October 2018 even though dismissal was communicated on 26 October 2018. The tribunal therefore held that the dismissal was wrongful and reserved the exact compensation for a remedy hearing. The separate s38 Employment Act 2002 claim failed because the tribunal found that a compliant written statement of particulars had been provided by March 2018.

The respondent's breach of contract counterclaim succeeded in principle. The tribunal found that the claimant had taken nine days more holiday than her entitlement, so the respondent could recover payment for three further days in addition to the six days already deducted from final pay. It also found a PAYE-related debt agreement, but the arithmetic in the judgment is not fully consistent: one passage refers to an original debt of £1,948.46, while another refers to £1,948.96. The tribunal's provisional calculation left a further £356.95 owing, but the exact set-off was left subject to confirmation at remedy.