Ms F Finlayson v Limited (in Liquidation) — 2021

The claimant was employed by the respondent accountancy practice for over ten years and had told Ms Fox that she intended in future to obtain a practising certificate and set up her own business. The respondent said it dismissed her for misconduct, including alleged competition with the business, use of personal email and mobile phone for work-related matters, and breaches of confidentiality. The Tribunal accepted, with some hesitation, that the stated reason for dismissal was alleged misconduct, but found that the disciplinary process was approached without an open mind and with insufficient investigation into evidence that might support the claimant's explanations.

The Tribunal found no proper evidential basis for the central allegation that the claimant had acted in competition with the respondent. It accepted that her private bookkeeping arrangement with Mr Douglas had long been known to the respondent, and that isolated help given to a friend or relative with tax returns did not establish competition. The respondent had not adequately investigated witnesses identified by the claimant, and the appeal did not cure the defects; the appeal decision relied uncritically on a consultant's report and included matters not properly put to the claimant.

On confidentiality and information handling, the Tribunal rejected the respondent's broad approach that all material sent from a company source was confidential. It found that the claimant's obligations were to exercise reasonable care over genuinely confidential information, particularly client and staff information, and that the evidence did not justify dismissal. The Tribunal also found that use of WhatsApp with Mr Douglas arose from longstanding practical arrangements and was not ultimately maintained as a reason on appeal.

The whistleblowing allegation concerned comments the claimant made to Police about use of a client account during an investigation. The Tribunal considered whether that could amount to a protected disclosure, but found difficulties because the Police already had the transaction information and the claimant's observation did not clearly allege a crime or specified legal breach. In any event, there was no evidence that Ms Fox knew of the conversation and its nature when deciding to dismiss. The Tribunal awarded a basic award and compensatory award, declined an ACAS uplift, made no Polkey deduction, and found the claimant had mitigated her loss.