Miss C Vary v Barnardo’s Trading Ltd — 2018

Miss C Vary was summarily dismissed by Barnardo’s Trading Ltd on 24 July 2017 after an investigation into work done for Mencap and into the relationship between Ms Sarwar, Mr Taylor and Mr Cousins. The tribunal found that Mr Duffy and Mr Moore genuinely believed misconduct had occurred, but the investigation did not go far enough for the Burchell test and s.98(4) ERA 1996: no one interviewed Mr Clark, there was no adequate investigation of whether BTL had previously done work for other charities, and there was no proper inquiry into whether the relationship with Mr Taylor and the Hong Kong trips had long been known and approved by earlier management.

The tribunal accepted that the claimant had been on sick leave after a stroke, had difficulty with recall, and was acting on Ms Sarwar's instruction when she helped with the Mencap cards. The handbook required line-manager agreement for other work and CLG approval only for paid external employment, and the tribunal held that the Mencap work was not paid external employment. The unfair dismissal claim therefore succeeded, although the tribunal also found that the claimant had been foolish in not questioning the commercial basis of the work, not keeping proper records, and not being more open about the relationship between Ms Sarwar and Mr Taylor.

On remedy, the tribunal said there was some possibility of a fair dismissal in any event if further investigation had been carried out, and it listed a remedy hearing. The breach of contract claim also succeeded: the tribunal held that the respondent had not proved a repudiatory breach, there was no general contractual duty on the claimant to report colleagues' misconduct, and the conduct found did not destroy trust and confidence so as to justify dismissal without notice.