Mr A Mpande v Summercare Limited — 2020

Mr A Mpande was dismissed by Summercare Limited on 9 April 2019 after disciplinary allegations concerning his management of Summer Lodge, including record keeping, maintenance reporting, the action plan, and the care provided to service user NM. The tribunal accepted that the respondent operated in a regulated care setting, that the claimant had long service and no prior disciplinary warnings, and that concerns had arisen after a Southend Borough Council inspection in June 2018 and later concerns about NM's weight loss and care records.

Applying section 98(2)(b) and section 98(4) of the Employment Rights Act 1996, and the Burchell approach, the tribunal found that Ms Homan genuinely believed the claimant had committed misconduct, that her belief was based on reasonable grounds, and that the respondent had carried out a reasonable investigation. It accepted that the claimant had admitted some shortcomings, including fire doors being propped open and missing medical audit records, and held that the more serious findings about NM's care, the ongoing shortcomings after support and an action plan, and the reputational and financial consequences meant dismissal for gross misconduct fell within the range of reasonable responses.

The claim nevertheless succeeded because the overall procedure was unfair. The tribunal held that the dismissal letter offered an appeal only within five working days, the respondent knew the claimant was leaving the country the next day, and it did not extend time or otherwise make the appeal right effective in practice. On that basis, the tribunal concluded that the appeal safeguard was ineffective and that the dismissal was unfair overall.

The tribunal also made findings relevant to remedy. It concluded that there was a 50% chance the claimant would still have been dismissed had a fair appeal been allowed, so any compensatory award would be reduced by 50% on Polkey grounds. It also found contributory conduct and said the claimant's award would be reduced by a further 50%, and increased by 5% for failure to follow the ACAS Code. No remedy hearing was required because the parties reached an agreement.