Case 3333823/2018 · Employment Tribunal
Mr M Sprack, Counsel For the v Respondent — 2018
- Case reference
- 3333823/2018
- Decision date
- 2 July 2018
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Smail Appearances
- Venue
- Watford
Parties
1 namedClaimant
Mr M Sprack, Counsel For the
Respondent
- —
Key findings
Tribunal's reasoningMrs G Duku worked as a nurse at The Chase Care Centre and was summarily dismissed on 29 June 2018 after concerns arising from the death of resident CM on 24 December 2017. The tribunal dealt with unfair dismissal, wrongful dismissal, an unlawful deduction from wages claim, and holiday pay. It found that when the claimant returned from extended leave in 2018 she had agreed to revert to bank hours, so she was not entitled to salary for the period between 12 January 2018 and dismissal on 29 June 2018. It also found she was entitled to holiday pay for the appropriate part of the leave taken in January and February 2018, but the amount was left for the remedy hearing.
On unfair dismissal, the tribunal accepted that the respondent had a genuine belief in misconduct and reasonable grounds for that belief, but held that the decision to refuse the claimant an appeal was outside the range of reasonable responses and contrary to natural justice. The tribunal said the appeal opportunity was essential, found the respondent's refusal to acknowledge the solicitors' appeal letter unreasonable, and concluded that the claimant lost a real chance of reinstatement on appeal. It assessed a 40% chance that she would not have been dismissed on appeal and therefore applied a 60% Polkey reduction to compensation. It found no additional reduction for contributory fault and no reduction to the basic award.
On the underlying misconduct allegations, the tribunal found some criticism was justified, including poor note-taking, the absence of a record verifying death, and the failure to call the out-of-hours doctor when the resident deteriorated. However, it held it was outside the band of reasonable responses to criticise the claimant for waiting to tell the daughter until she arrived, and for not using a stethoscope to verify death when that was not the home practice. For wrongful dismissal, the tribunal found the claimant had not committed a repudiatory breach or gross misconduct; dismissal therefore required notice.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Upheld because the respondent unreasonably refused to allow an appeal; the tribunal applied a 60% Polkey reduction, found no contributory fault, and left compensation to the remedy hearing. | Upheld | — | — |
| Wrongful dismissal | Upheld because the claimant's conduct was found to be poor but not repudiatory or gross misconduct; she was entitled to notice. | Upheld | — | — |
| Unlawful deduction from wages | Dismissed after the tribunal found the claimant agreed to revert to bank hours on return from extended leave and no minimum hours or pay were guaranteed. | Dismissed | — | — |
| Holiday pay | Upheld for the appropriate part of the January-February 2018 leave period; the amount was left to be calculated at the remedy hearing. | Upheld | — | — |
Legal tests applied
6 references- s.98 ERA 1996
- s.98(4) ERA 1996
- British Home Stores v Burchell
- Sainsbury's Supermarkets v Hitt
- Iceland Frozen Foods v Jones
- band of reasonable responses
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
- Open official judgment 1 PDF on gov.uk
- Open official judgment 2 PDF on gov.uk
- Open official judgment 3 PDF on gov.uk
Published on gov.uk under the Open Government Licence v3.0.
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