Ms K. Herbert v Main Group Services Ltd — 2023

Ms Herbert was employed as office manager from 28 October 2018 under a contract requiring one month's notice. The tribunal accepted her account of the meeting on 20 May 2022, preferred her evidence and that of her sister Donna Anderson over the respondent's later account, and found that Thomas Swannell told her that she was sacked and to 'pack your kit and fuck off'. It rejected the respondent's later suspension and disciplinary narrative as a reliable account of what happened and found the later process had been put together after the dismissal.

On unfair dismissal, the tribunal found the reason for dismissal was the claimant's conduct at that meeting. It accepted that the respondent had a potentially fair reason under section 98(2) ERA 1996, but held the dismissal was procedurally unfair because the claimant was summarily dismissed without warning, investigation, or any disciplinary procedure before the decision was made. Applying section 98(4) ERA 1996 and the Burchell approach, the tribunal concluded that the claimant's one-off heated remark was not gross misconduct and that dismissal was outside the range of reasonable responses.

On the notice pay issue, the tribunal held the dismissal was also a breach of contract / wrongful dismissal because the claimant was entitled to one month's notice and her conduct, viewed in context, was not a repudiatory breach. It noted that the contract and handbook distinguished gross misconduct from lesser misconduct and that the claimant's comment did not fall within the kind of conduct justifying summary dismissal. The holiday pay claim failed because the tribunal found the claimant had already used her 2020 entitlement and had been paid for 37.5 days' accrued holiday on termination, including 7 days for 2022, leaving no further sum due. The tribunal also found the written statement of particulars failed to specify the place of work under section 1(4)(h) ERA 1996 and awarded two weeks' pay for that failure, but the judgment does not set out a final aggregate monetary total.