Mr K.Sonaike, Counsel For v Mr N. Decker, Legal Consultant — 2022

The claimant, a support worker at the respondent's Vincent Villas site, brought claims of unfair dismissal, notice pay, and unpaid annual leave. The dismissal arose from two disciplinary allegations: that she failed to report, on the day of the event, an incident on 17 August 2020 in which another staff member struck a service user during a taxi journey, and that she wore non-approved PPE on various days after the respondent introduced its September 2020 PPE policy. The tribunal found that the claimant knew the safeguarding and PPE requirements, that the relevant incidents occurred, and that she accepted at least the core facts in issue.

Applying the Burchell test and s.98(4) ERA 1996, the tribunal held that the respondent had a genuine belief that the claimant had committed gross misconduct, reasonable grounds for that belief, and a reasonable investigation. It found that the claimant had been invited to investigation and disciplinary meetings, offered alternatives such as Zoom or a written response when she said she could not attend in person, and given the right to be accompanied and to appeal. The tribunal therefore held that the unfair dismissal claim was not well-founded and dismissed it.

On the dismissal process and sanction, the tribunal found the procedure fair and held that dismissal was within the band of reasonable responses in a care setting involving vulnerable service users and safeguarding duties. Because it had found gross misconduct, the tribunal also held that the respondent was entitled to dismiss without notice, so the notice pay / breach of contract claim failed.

On holiday pay, the tribunal found that the claimant had accrued 99 hours of leave at the end of employment, but had only been paid for 97 hours after termination. It therefore held that 2 hours remained outstanding and that the annual leave claim partially succeeded. The respondent was ordered to pay £17.49, and the tribunal said the provisional remedy hearing was unnecessary because the unfair dismissal claim had failed and the respondent had undertaken to pay the outstanding amount.