Mrs M Kelly v Represented by: Ms D Flanigan - Solicitor St Mary’s Kenmure Ltd — 2020

The tribunal found that both Mrs Kelly and Ms Irvine had been unfairly dismissed by St Mary’s Kenmure Ltd, and the respondent conceded unfair dismissal in respect of each claim under s.98(4) ERA 1996. The dismissals arose from events in the Arran unit on 29 July 2018. For Mrs Kelly, the respondent later relied on her remaining seated while young people were in or around the office and on a mistaken belief that an item had been removed from the office and later used for self-harm. For Ms Irvine, the respondent relied at appeal on her having left AB and MN unsupervised in the computer room, after a final written warning had been issued on a different and previously disclosed basis.

On remedy, the tribunal found contributory conduct only in Mrs Kelly’s case. It held that her conduct in remaining seated while young people accessed the office contributed to her dismissal, but reduced both her basic and compensatory awards by 50% rather than adopting the larger reduction sought by the respondent. It did not find contributory conduct by Ms Irvine, accepting her explanation that she was dealing with a self-harm incident, noting the absence of a policy or training on use of the PIT alarm in the circumstances, and holding that her conduct was not blameworthy for s.123(6) ERA 1996 purposes.

The tribunal also made ACAS Code findings. It held that the respondent had unreasonably failed to comply with the Code in Mrs Kelly’s case because the disciplinary policy did not make clear that breach of the door-locking SOP or allowing a young person into the office could amount to gross misconduct, and it applied a 5% uplift. In Ms Irvine’s case, it held that the respondent unreasonably failed to specify the allegation that ultimately led to dismissal and failed to offer an appeal against the dismissal decision, applying a 20% uplift. Mrs Kelly’s final award was £2,533.65 basic award and £10,199.69 compensatory award, total £12,733.34, subject to recoupment of the prescribed element of £1,911.04. Ms Irvine’s final award was £5,472.91 basic award and £52,469.73 compensatory award after grossing up, total £57,942.64.