Ms Nicola McConnell v Represented by Ewan Mowat Solicitor Partners For Inclusion — 2021

Ms Nicola McConnell worked as a support worker for Partners For Inclusion from 1 August 2011 until her dismissal on 16 December 2019. The case concerned her support of AB, a service user with learning difficulties who required close supervision and had specific diet and safety needs. On 17 November 2019, while accompanying AB at Johnnie's Music Group, she twice left him unattended, first because she received a call from her daughter about the death of her daughter's father and then because she needed to use the toilet. While she was absent, AB was seen trying to drink from another person's fizzy drink and reaching for crisps. The claimant also left AB's outdoor bag in his car rather than bringing it into the venue.

The tribunal applied the Burchell test and held that the respondent had a genuine belief, based on reasonable grounds and a reasonable investigation, that the claimant had committed misconduct in leaving AB unsupervised on 17 November 2019. It accepted that the claimant was shocked by the telephone call and was unwell, but found that she should have asked another worker to monitor AB while she was away. The tribunal also held that dismissal fell within the band of reasonable responses. However, it found that the belief that the claimant had breached the Working Policy by leaving AB's outdoor bag in the car was not based on reasonable grounds, because the policy did not say that the bag had to be kept inside the venue.

The unfair dismissal claim nevertheless succeeded because the tribunal found material inconsistency in the respondent's treatment of comparable cases. It accepted that a November 2015 case involving a team leader who left a service user in a car had been dealt with by written warning, which led the claimant to expect a similar outcome, and it treated a 9 December 2019 incident involving AB being left unsupported while another worker dealt with matters in the home as a truly parallel comparator in which no disciplinary action was taken. The tribunal held that this inconsistency rendered the dismissal unfair, even though it had otherwise concluded that the conduct on 17 November 2019 was blameworthy.

On remedy, the tribunal assessed a basic award of £2,783.40 and a compensatory loss figure of £18,577.02 before deductions. It then reduced the combined award by 75% for contributory conduct, leaving £5,340.11, and added £350 for loss of employment rights. The final award ordered against the respondent was £5,690.11. The separate breach of contract claim failed because the tribunal held that the claimant's conduct amounted to a fundamental breach, releasing the respondent from any obligation to provide notice or pay in lieu.