EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4104624/20175 Held at Glasgow on and January 2018 Employment Judge: W A Meiklejohn (Sitting alone) Miss Natalie McQuillan v Represented by: Dr T Berry - Representative Mr Andrew Barclay Fitzsimons and others — 2018

Miss Natalie McQuillan worked for the respondents as a care assistant from 30 August 2004. The dispute arose after a resident was found to have two incontinence pads on, which the respondents treated as double padding. The tribunal found that the claimant and Ms Russell had been the last staff to complete the chart before the discovery, and that the respondents relied on the chart together with statements from other staff to begin disciplinary action.

The tribunal accepted that the process had defects. The claimant was not given copies of the witness statements or the chart in advance of the disciplinary hearing or the appeal, the appeal was not heard within the 10 working day timescale in the disciplinary procedure, and there was overlap between the roles of investigating officer, disciplinary officer and appeal officer. The tribunal said the failure to provide the documents was a significant failing and could amount to a material breach of contract, but it did not accept that the claimant resigned in response to that failing.

The tribunal held that the respondents were entitled to investigate the allegation, to decide that the evidence justified disciplinary action, and to impose a final written warning. It found that the finding of guilt was not one that no reasonable employer could have reached on the evidence available. The tribunal also found that the respondents' submission of a report to the SSSC was not a breach of contract, and that the claimant decided to resign after becoming aware of that report rather than because of any earlier procedural defects.

Applying section 95(1)(c) ERA 1996 and the approach in Western Excavating and Malik, the tribunal concluded that the claimant had not established a constructive dismissal. It therefore dismissed the unfair dismissal claim. No monetary award was made.