Ms F MacDonald v Represented by: Ms M Dalziel - Solicitor Openreach Limited — 2022

The claimant, Ms F MacDonald, was employed by Openreach Ltd from 2 May 2007 until her dismissal on 19 August 2019. The respondent relied on conduct issues relating to working practices, including time recording, use of the Benbecula exchange, home stops during working time, and an alleged unauthorised overnight location of a company vehicle. The tribunal heard evidence from the claimant, Mr Donald MacDonald, Ms Katrina Robertson, Mr Kevin Walker and Mr Gavin Fleming, and found the witnesses generally credible and reliable.

On unfair dismissal, the tribunal accepted that misconduct was the reason for dismissal, so the case turned on section 98(4) ERA 1996 and the Burchell approach. It found the respondent had a genuine belief in misconduct and reasonable grounds for that belief, but the investigation was not reasonable because no relevant third-party witnesses were interviewed and Mr Fleming did not verify the claimant's explanation that her vehicle had been taken to a local garage. The tribunal also held that dismissal was outside the band of reasonable responses, particularly because the claimant had been given an assurance after the disciplinary hearing that dismissal would be taken off the table if she engaged in mediation and training, and that assurance was later withdrawn.

The tribunal then considered Polkey and assessed a 67% chance that the claimant would have been dismissed even if a fair procedure had been followed. It applied a 20% uplift for breach of the ACAS Code and a 50% reduction for contributory conduct, noting the claimant's own admissions about inaccurate timesheets, lunch booking, and related working practices. The agreed basic award of £7,087.50 was reduced to £3,543.75, the adjusted net loss figure produced a compensatory award of £5,947.50, and an additional £500 was allowed for loss of employment rights, making a total award of £9,991.25.

The separate common law notice claim failed. Although the claimant had been entitled to twelve weeks' notice, the tribunal held that her failure to comply with time recording requirements amounted to a fundamental breach of contract, including an unjustified receipt of overtime, so the respondent was entitled to dismiss summarily without notice pay. No damages were awarded on that claim.