Member J McCullagh Tribunal Member A Matheson Ms K Lowe v Represented by: Mr C Jackson Solicitor Shop & Save Limited — 2019

Ms Kelly Lowe worked for Shop & Save Limited from 18 December 2013 as a shop assistant. The tribunal found that she was dismissed on 22 December 2018, with the dismissal evidenced by the WhatsApp exchanges in which Mr Anees said the business did not have to accept her fit note and did not need her if she did not return, together with the P45 issued later stating a termination date of 24 December 2018 and the claimant's unanswered letter of 21 December 2018. The judgment records that no Equality Act 2010 claim was pursued.

The tribunal accepted that Mr Anees genuinely believed he was entitled to reject the GP fit note and to treat the claimant's refusal to return as gross misconduct, so the reason for dismissal was conduct and was potentially fair. It nevertheless held the dismissal to be unfair because the claimant had a GP fit note supported by stress at work and pregnancy, Mr Anees was not medically qualified, no occupational health or other qualified advice was obtained, no proper investigation or disciplinary hearing was held, and the respondent failed to follow the ACAS Code of Practice. The tribunal also rejected contributory fault and did not accept that any offer of reinstatement had been proved.

On remedy, the tribunal accepted a basic award of £1,055 and assessed compensatory loss at £6,462.82. That figure included four weeks' sick pay, 15 weeks' lost net earnings and employer pension contributions, statutory maternity pay, and £500 for loss of statutory rights. The tribunal then added a £500 uplift under the ACAS Code provisions, producing a total award of £8,017.82. The recoupment section recorded a monetary award of £8,017.82 and a prescribed element of £5,962.82, but the date to which the prescribed element relates is stated inconsistently elsewhere in the judgment.