Claimant v Mr W Finlayson T/a Finlaysons — 2019

Ms A McMahon was employed as a typist/receptionist from 4 August 2015 until her dismissal on 24 November 2017 by Mr W Finlayson, trading as Finlaysons. The dismissal followed her letter of 18 November 2017 during a period of sickness absence, in which she said she had been subjected to "persistent harassment" and asked that he stop writing to her. The respondent treated that phrase as an accusation of criminal conduct, cancelled the disciplinary meeting that had been arranged, and dismissed her for gross misconduct by letter of 22 November 2017. He then heard and determined the appeal himself on 7 February 2018.

The tribunal held that, read in context, the phrase "persistent harassment" was not an accusation of criminal wrongdoing. It found that no reasonable employer could have read the letter that way, and that the respondent should have asked the claimant what she meant before taking the decision to dismiss. It also found that the respondent had not provided written terms and conditions or disciplinary rules, had not carried out any investigation, had not held a fair disciplinary hearing, and had not told the claimant of any right to be accompanied. On appeal, the respondent did not act impartially and used the hearing to seek agreement with his own earlier view.

On remedy, the tribunal rejected any Polkey reduction and found that, had a fair process been followed, dismissal would not have occurred and the claimant would have returned to work. It found no culpable or blameworthy conduct by the claimant for purposes of contribution. The basic award was assessed at £524. The compensatory award was £15,506.14, made up of net earnings loss to 30 September 2018, loss of statutory rights, pension loss, a 4-week uplift for failure to provide a written statement of particulars, and a 25% uplift for unreasonable failure to comply with the ACAS Code. Income Support received from 7 June 2018 was treated as a recoupable benefit; the prescribed element was £10,832.87 and the balance of £5,197.27 was payable immediately.