Member Z van Zwanenberg Tribunal Member R Henderson Mrs N Dudenko v Costa Limited — 2021

The claimant, an Assistant Manager at the respondent's Corstorphine store, was dismissed after a fire alarm evacuation on 23 November 2019. The tribunal found that the respondent's reason for dismissal was conduct, which was a potentially fair reason under s98(2)(b) ERA. It rejected the automatic unfair dismissal and pregnancy and maternity discrimination claims because the investigation began before the claimant told the respondent she was pregnant, the claimant first informed the store manager on 6 December 2019, and there was no evidence that the disciplinary or appeal decision-makers were consciously or unconsciously motivated by pregnancy.

The ordinary unfair dismissal claim succeeded. The tribunal found that the investigating manager was not impartial and that the respondent did not investigate how long evacuations normally took at that Costa store or when other departments completed evacuation on the day. It accepted that the disciplinary and appeal managers genuinely believed the claimant had committed misconduct, and that there were reasonable grounds for believing she did not start the evacuation immediately, did not direct her team effectively, and collected her jacket during the evacuation. However, it found there were no reasonable grounds for concluding that the six-minute evacuation was unreasonable.

Applying s98(4) ERA, the tribunal found dismissal fell outside the range of reasonable responses. It held that no reasonable employer would have treated the short delay while the claimant assessed the safest exit route as gross misconduct, or treated the leadership issue as gross misconduct where she had received no additional training or guidance as Assistant Manager about fire evacuation leadership or difficult customers. It also found summary dismissal for collecting her jacket was outside the range of reasonable responses in circumstances where other staff who had the same training also collected jackets and were not disciplined.

On remedy, no Polkey reduction and no Acas uplift were made. The tribunal found the claimant had stopped to take her jacket contrary to the respondent's Fire and Evacuation Procedures, but otherwise handled the evacuation as best she could in the circumstances. It reduced both the basic and compensatory awards by 25% for contributory conduct. The basic award was reduced from £1,249.62 to £937.22, and the compensatory award was £13,463.70, producing a total award of £14,400.92. The Employment Protection (Recoupment of Benefits) Regulations 1996 applied, with a prescribed element of £11,726.35 for 28 January 2020 to 16 February 2021.