M Kearns Members: Mr F Russell Mr D Loughney Mrs A Qaraqish v Represented by: Mrs D Reynolds - Solicitor 1. Rossa Home Care Limited and 1 other — 2017

The claimant was the manager of Bennochy Lodge Care Home. The first respondent took over the home on 17 December 2015. The tribunal found that the parties quickly had difficulties over documentation, payroll timing, the handling of staff hours, and the claimant's relationship with the second respondent, but it accepted the respondents' evidence that their policies, procedures and documentation were in place from the outset and that the Care Inspectorate was satisfied with them.

The race discrimination claim failed. The tribunal accepted that the claimant was an Arabic-speaking Muslim from the Middle East and that the second respondent was a Muslim from Pakistan, but it did not accept that asking where the claimant was from, comments about her voice tone, or later management discussions amounted to less favourable treatment because of race. Where there was conflict in the evidence, the tribunal generally preferred the second respondent's account and found that the relevant conduct was explained by workplace and management issues rather than race.

The whistleblowing claims also failed. The tribunal found that most of the alleged disclosures were not proved, or were not shown to be made in the public interest. It held that the only qualifying disclosure was the complaint in the letter dated 3 January 2016, sent on 8 January 2016, about late payment of staff. However, it found that this disclosure was not the reason or principal reason for dismissal and did not materially influence the suspension, the grievance process, the disciplinary allegations, or the dismissal decision.

On unfair dismissal, the tribunal accepted that the first respondent dismissed the claimant for conduct and that the second respondent genuinely believed the claimant had committed gross misconduct, particularly in relation to the parcel incident and other allegations about staff hours, timesheets and resident incidents. It found that the investigation was within the range of reasonable investigations a reasonable employer might have conducted, but the procedure was unfair because the second respondent was not an impartial decision-maker and also carried out the investigation, and because the claimant was not given enough detail to answer some allegations or to challenge the evidence against her effectively. The appeal did not cure those defects.

Remedy was limited by mitigation and Polkey. The tribunal awarded a basic award of £2,156 and a compensatory award of £10,313 for unfair dismissal, making £12,469 on that claim. It applied a 50% Polkey reduction for the six-month post-dismissal period and then a 10% uplift for unreasonable non-compliance with the ACAS Code. In addition, it ordered £1,500 holiday pay and £151 arrears of pay, so the overall award totalled £14,120. The tribunal did not make findings on the health-insurance/breach-of-contract point and said notice pay did not need separate determination because any loss was covered by the compensatory award.