Ms S Pearson v McCurrach UK Ltd — 2020

Ms S Pearson was employed from 27 June 2016 as a Telephone Account Manager on the respondent's Canada Life contract, with salary latterly of £24,750. She was told she would, subject to the scheme rules, receive a bonus of £9,375 on 28 March 2020. The case arose from a WhatsApp group conversation dated 6 July 2019 containing racist comments. After investigation, the respondent concluded that the messages came from the claimant's telephone number, invited her to a disciplinary hearing, and dismissed her summarily on 20 March 2020. Her grievance alleging a vendetta was not upheld and her appeal was rejected.

On the unfair dismissal claim, the tribunal accepted that the reason for dismissal was conduct under s.98(2)(b) ERA 1996 and then applied s.98(4) ERA 1996 together with the Burchell approach. It found that the dismissing manager genuinely believed the claimant had committed gross misconduct, had reasonable grounds for that belief, and had carried out a reasonable investigation. Although the investigator had placed unnecessary emphasis on who took the photograph in the WhatsApp post, the tribunal held that this did not undermine the fairness of the dismissal decision because the dismissing manager did not rely on that point.

The tribunal also rejected the claimant's comparison with E1, E2 and E3. It found that those individuals were not truly parallel comparators because they admitted their conduct, expressed remorse and gave assurances that it would not be repeated, whereas the claimant did not. The tribunal concluded that summary dismissal was within the band of reasonable responses and dismissed the unfair dismissal claim.

For wrongful dismissal, the tribunal went beyond reasonable belief and found that, on the balance of probabilities, the claimant had in fact posted the racist comments. It held that the comments were of a racist nature, breached the respondent's Equality Policy and amounted to a fundamental breach of contract, so the respondent was not obliged to provide notice pay. On breach of contract, the tribunal held that the sales incentive scheme required the participant to be employed and not under notice when the bonus was paid; because the claimant was dismissed on 20 March 2020, she was not contractually entitled to the bonus due on 28 March 2020. Both claims were dismissed.