Mrs Elizabeth McCarthy v Represented by: Ms L MacSporran Solicitor Joan’s Carers Ltd — 2017

Mrs Elizabeth McCarthy had worked for Joan's Carers Ltd for many years and was Assistant Manager when the respondent's management structure changed in 2015 and 2016, with Russell Graham Jnr becoming more involved and then a Managing Director. The tribunal found that her working relationship with Mr Graham Jnr deteriorated, that she raised concerns about his role, and that she later lodged a grievance. It also found that the respondent raised concerns about her absences on Wednesdays, her hospital appointment on 7 September 2016, and what it said were references to grief counselling and staff meetings.

The tribunal accepted that conduct was the respondent's potentially fair reason for dismissal under section 98 ERA 1996, but it held that the dismissal was unfair under section 98(4). It found that Mr Graham Jnr and Mrs Graham were both involved in the investigation, that Mrs Graham had already formed a view, and that the process did not operate impartially. It also found that the investigation did not properly test the claimant's account, did not make even-handed enquiries of the carers about what had been discussed, and did not make available the office diary when that could have helped clarify the disputed dates.

On the substance of the allegations, the tribunal found that the respondent did not have reasonable grounds to believe that the claimant had falsified attendance at her hospital appointment on 7 September 2016 or at grief counselling on the specified Wednesdays. It found that the claimant had a genuine hospital appointment but missed it after losing her mobile telephone and that the grievance and disciplinary process did not fairly explore her explanation. It also found no evidence that she was holding unauthorised meetings in a public place to discuss private and confidential information about the company; the tribunal considered the conversations were aimed at reassuring and retaining employees.

The tribunal held that the decision to dismiss fell outside the range of reasonable responses. It was also not satisfied that the appeal process cured the defects in the original process, noting in particular that Mr Miller's appeal decision was not independent in the circumstances. The tribunal therefore upheld the unfair dismissal claim and directed that the case proceed to a remedy hearing.