Ms M Henry v Represented by:10 Mr I Service - Lay Representative Kibble Education and Care Centre — 2024

Ms M Henry was employed by Kibble Education and Care Centre from 8 June 2017 until her dismissal on 1 November 2023, most recently as a Domestic Team Leader. The tribunal accepted that she had a long-term hearing impairment and held that she was a disabled person for the purposes of s.6 Equality Act 2010. It also recorded the internal sequence of grievance, investigation, precautionary suspension on 30 August 2023, disciplinary hearing, appeal, and second appeal before reaching its decision.

On the unfair dismissal claim, the tribunal accepted that the respondent had a conduct reason for dismissal, including the incident on 14 August 2023 in which the claimant deliberately sprayed Paulina Sofka with air freshener after being sprayed herself, and the claimant's admitted swearing at Isabel McCheyne. It found, however, that parts of the investigation and disciplinary framing were too vague. In particular, several allegations were not specified with sufficient precision or linked clearly to the evidence relied on, and the wider allegations about a pattern of conduct across the claimant's employment were not formulated in a way that allowed her properly to meet them.

The tribunal held that the respondent did not carry out a reasonable investigation in relation to all of the conduct relied on for dismissal, and that the dismissal was therefore unfair under s.98(4) ERA 1996. It applied the Burchell test and accepted that the respondent did have reasonable grounds to believe that the claimant deliberately sprayed Paulina and swore aggressively at Isabel on 14 August 2023, but found that the second and third limbs of the Burchell test were not satisfied for the other grounds. It also considered the dismissal against the band of reasonable responses.

On remedy, the tribunal held that the claimant would in any event have been dismissed fairly for the 14 August 2023 conduct alone. It therefore applied a 100% Polkey reduction to the compensatory award. It also found that the claimant's conduct was culpable and blameworthy and reduced the basic award to zero. The tribunal found a breach of the ACAS Code because not all charges were made sufficiently clear, but considered that a 10% uplift would have no practical effect because the monetary award had already been reduced to nil. The result was that no monetary award was made against the respondent.

The direct disability discrimination claim under s.13 Equality Act 2010 failed because the tribunal found that the claimant was dismissed for what she did and said, and for the tone and manner of that conduct, rather than because of the volume of her speech. It accepted that references to volume in the process reflected the claimant's own explanation that she spoke loudly, and the respondent's response that its concern was with the conduct and manner of the incidents rather than disability-related loudness. The tribunal found no basis for concluding that a comparator without the disability would have been treated differently.