Ms H Nicholson v Delilah Cosmetics Limited Heard: Remotely by video On: 9 and 10 September 2021 — 2022

Ms H Nicholson was employed by Delilah Cosmetics Limited as Managing Director from 1 January 2014 until the effective date of termination on 16 April 2020. The tribunal recorded that her only claim was unfair dismissal, and that there was no claim of detriment or dismissal for making a protected disclosure. The claimant accepted that she was bound by her service contract, employee handbook, and shareholders agreement, including duties not to act against Delilah's interests or disclose confidential information.

The tribunal found that in March 2019 the claimant used her Delilah email account to initiate and continue a conversation with BATB about developing a makeup line and a personal consultancy role, including a consultancy fee and commission, without telling anyone at Delilah. It found that she also offered BATB contact with Delilah's manufacturers and suppliers, and that those actions breached her contractual and fiduciary duties as a director. The tribunal rejected her case that the respondent manufactured the dismissal to depress the value of her shares, finding that the relevant conduct pre-dated her stated intention on 8 May 2019 to leave and sell her shares.

The tribunal further found that the respondent's investigation, disciplinary process, and appeal were within the band of reasonable responses. It accepted that Delilah was a small employer with limited resources, that Ms White investigated, Mr Kingston dismissed, and Ms Hamer heard the appeal, and that this was reasonable in the circumstances. It also found that the claimant was given relevant documents, the chance to be accompanied, an occupational health report was obtained, a written process was agreed, and further questions were asked where needed. The tribunal held that the absence of a live disciplinary or appeal hearing did not make the process unfair because the claimant had consented to it and had every opportunity to participate.

Applying section 98(4) of the Employment Rights Act 1996 and the authorities cited, including Burchell, Sainsbury's Supermarkets Ltd v Hitt, Iceland Frozen Foods, and Polkey, the tribunal concluded that Mr Kingston's decision to dismiss for gross misconduct was reasonable and that the claimant was not unfairly dismissed. It added that, even if there had been a procedural flaw, compensation would have been reduced by at least 90% because of the claimant's conduct and at least 90% on a Polkey basis.