Mrs M Simon v Genesis Education Trust Ltd — 2019

Mrs M Simon was employed as a finance officer and was dismissed on 23 May 2018 after disciplinary proceedings relating to an email sent on 9 January 2018 to Ruth Ejvet about alleged conversations concerning staff contracts. The claimant pursued an automatic unfair dismissal claim under s.103A ERA 1996 and an ordinary unfair dismissal claim under s.94 ERA 1996. At the start of the hearing, the tribunal noted that injury to feelings and aggravated damages were not available for the s.103A claim under Dunnachie v Kingston-upon-Hull City Council, and the claimant confirmed that, if successful, she was seeking a basic award and a compensatory award only. On the facts, however, no award was made because both claims failed.

On the protected disclosure claim, the tribunal found that the claimant was aware that Mrs Ejvet had been suspended and was facing disciplinary proceedings, including an allegation that staff files were missing contracts. It rejected the claimant's account that she reasonably believed she had overheard a discussion about shredding staff contracts in order to evade TUPE obligations. The tribunal found that no such conversation took place as described, that any belief to that effect was not reasonable, and that the claimant's reason for sending the email was to provide information to Mrs Ejvet for use in her own disciplinary proceedings. It also found that the claimant had no public interest in mind, and that the disclosure was not made in accordance with s.43C or s.43G. The s.103A claim was therefore dismissed.

On the ordinary unfair dismissal claim, the tribunal accepted that the initial suspension did not comply with the contractual disciplinary procedure, including the provisions about consultation and an accompanying interview, but it found that this did not make the dismissal unfair when judged by the standard of a reasonable employer. It held that the claimant was promptly informed of the allegations, given opportunities to answer them at the investigation, disciplinary hearing, and appeal, and that the disciplinary and appeal panels reached conclusions that were open to them on the evidence. Applying the Burchell approach, section 98(4) ERA 1996, and the range of reasonable responses test, the tribunal found that the respondent held a genuine belief in misconduct based on reasonable grounds after a reasonable investigation. The ordinary unfair dismissal claim was also dismissed.