Ms F McMillan v – Solicitor McMillans Accountants Ltd — 2020

Ms F McMillan had worked for the business since 1 September 2010, her employment transferred to McMillans Accountants Ltd in May 2014, and she signed a new contract on 1 August 2018 which provided for 12 months' notice during the first five years after signature. Following Mr Chapman’s acquisition of the business in August 2018, her role changed, and the dispute arose from events in January 2020.

The tribunal found that on 21 January 2020 there was a short workplace incident in which the claimant reacted to Mr Chapman’s questioning by raising her voice and saying that she was a 36-year-old woman who would not be spoken to like a schoolchild. It did not accept that she was drunk or on drugs, did not accept that Mr Chapman had made the fuller set of comments alleged in the dismissal letter, and did not accept the respondent’s evidence that she had received prior verbal warnings. It also rejected the respondent’s wider allegations of deliberate poor performance, unauthorised absence, cancellation of outsourced cover, misuse of client banking information, and taking steps to prevent a client from accessing his bank account.

On the dismissal process, the tribunal found that the claimant was not told in advance that a disciplinary process was underway, was not given the allegations to comment on at the 24 January meeting, and was not afforded a fair investigation or hearing. It accepted the claimant’s evidence that she told Mr McArthur on 23 January that she remained unwell and would not be in, and it found there was no communicated absence-reporting policy that she had been shown to breach. Applying section 98 ERA 1996 and the Burchell test, the tribunal held that the respondent did not have reasonable grounds for its belief in the misconduct allegations and had not carried out a reasonable investigation, so the unfair dismissal claim succeeded.

The tribunal also held that the conduct found on 21 January, whether viewed alone or alongside the other matters proved, did not amount to repudiatory breach justifying summary dismissal, so the breach of contract claim succeeded as well. On remedy, it awarded a basic award of £4,249.50 after a 10% reduction for contributory conduct, a compensatory award of £35,000 capped at one year’s pay, and £500 for loss of statutory rights. It applied a 25% uplift for unreasonable failure to comply with the ACAS Code, but no Polkey reduction, and the final award was stated as a combined total of £39,749.50.