Mr D.Beemah, Counsel For v Ms E. Evans Jarvis, Senior Litigation Consultant — 2022

Mrs F Semon was employed by Lion Construction Ltd from 28 April 2014 until her dismissal on 7 September 2020. The tribunal found that the dismissal process arose first from the claimant's refusal to return to the office during the Covid-19 lockdown and then from her repeated non-attendance at investigation and disciplinary meetings. It held that the employer had a potentially fair reason for dismissal in conduct, and that the dismissal fell within the range of reasonable responses substantively.

The tribunal nevertheless found the dismissal to be procedurally unfair. Although the respondent was a small business and took external advice, Mr Paul was the manager who instructed the claimant to return to work, the investigator, the person who approved referral to discipline, the disciplinary decision-maker, and the appeal decision-maker. The tribunal said that an expectation had been created that an independent investigator and chair would be used, but that did not happen, and no notes were produced at the investigation or disciplinary hearings. That procedural defect meant the unfair dismissal claim succeeded.

The alternative automatic unfair dismissal case under s.100 ERA 1996 failed. The tribunal accepted that the claimant had genuine concerns about Covid-19, but found that she did not reasonably believe there were circumstances of serious and imminent danger in the workplace. It relied on the small size of the office, the social distancing and hygiene measures in place, and the fact that the claimant's position was effectively that she would stay away until the national lockdown ended. The tribunal said this was not a flexible working case, and it was not appropriate for her to absent herself from work entirely.

On remedy, the tribunal held that there was a high probability the claimant would have been dismissed even if a fair procedure had been followed, so it applied a 90% Polkey reduction to the compensatory award. It also found that the claimant's conduct caused or contributed to her dismissal and that it would be inequitable to make any compensatory award, and it reduced the basic award to nil for the same reasons. The remedy outcome was therefore nil overall. The opening summary of the judgment refers to a 75% reduction to the compensatory award, but the detailed remedy reasoning at paragraphs 122 to 124 applies a 90% reduction; the latter is reflected here.