Member Ms Z Zwanenberg Tribunal Member Mr R Martin Ms C McCluskie Armadale Group Practice v Ed by Mr S Smith, solicitor — 2022

The claimant worked as a practice nurse for the respondent from 4 April 2016 until her dismissal with effect from 29 March 2021. She had type 1 diabetes and had used glucogel from the respondent's stock on occasions when she felt a hypo was coming on. The respondent treated that use, together with a fridge and cold-chain incident, as gross misconduct and dismissed her after an investigation and appeal.

The tribunal found the investigation was not reasonable in all the circumstances and was not conducted in a neutral way. It found no proper investigation into whether the partners or other staff knew of the claimant's glucogel use, no investigation into her point that staff and partners took paracetamol from stock, and no meaningful exploration of previous employers or mitigation. The tribunal also found the investigator intervened in witness evidence, the investigation report was unbalanced, and the respondent had predetermined the outcome. It concluded the respondent did not have a genuine belief, on reasonable grounds after a reasonable investigation, that the claimant had committed gross misconduct, and that dismissal was outside the band of reasonable responses under s.98(4) ERA 1996 and the Burchell approach.

On discrimination, the tribunal dismissed the direct disability discrimination claim. It found no comparator was advanced and no facts were provided to construct one. It also found there was no evidence that the claimant's disability, as distinct from absences arising from it, was an operative reason for dismissal. The tribunal noted concerns about comments made about the claimant's absences, but said that any claim based on absences would have been a different legal route and was not the claim before it.

On victimisation, the tribunal accepted that the claimant had done a protected act by bringing her unfair dismissal and discrimination claims, but held that the alleged detriments were not because of that protected act. It found the staff involved in the smear-test issues were not shown to know the nature of the claim, and that the response to the claimant's complaint email was not initially treated as a complaint because it was not recognised as one. The tribunal awarded a basic award of £2,421, a compensatory award of £35,079.20 and £500 for loss of statutory rights, totalling £38,000.20, and accepted that the claimant had taken reasonable steps to mitigate her loss. It applied the statutory cap of one year's gross salary and did not make any Polkey or ACAS uplift reduction.