Mrs E Farnell v Represented by Ms J Forrest - Solicitor Oakminster Healthcare Ltd — 2020

Mrs E Farnell was employed by Oakminster Healthcare Ltd from 15 September 2015 until her dismissal on 30 June 2019, latterly as Deputy Manager at Oakview Manor Care Home. After complaints from staff, a resident's family member and the Scottish Social Services Council, she was suspended on 12 April 2019 and an investigation by Ms Nicola Ferguson followed. Ms Ferguson interviewed 21 witnesses, but the claimant was not interviewed at the outset. The disciplinary hearing was chaired by Ms Kathleen McAdams, who dismissed the claimant for gross misconduct. The appeal, heard by Ms Megan Allan, was rejected.

The tribunal found that the respondent had established conduct as the reason for dismissal and that the belief that the claimant had committed gross misconduct was genuinely held. It accepted that the evidence, taken as a whole, showed a pattern of shouting, swearing and intimidating behaviour towards staff, and that dismissal for that level of bullying conduct was within the band of reasonable responses. However, the tribunal held that the investigation was not reasonable because potentially exculpatory witnesses were not pursued, the witness evidence was too general and lacking in detail, and only part of the written evidence was disclosed to the claimant. The investigation report, the amended report, and material obtained after the disciplinary hearing were also not provided to the claimant before the decision was made.

The tribunal further held that the appeal did not cure those defects. Ms Allan had not been given the full material considered below, including the claimant's supporting documents, and the claimant still had not been given an opportunity to comment on the additional evidence obtained after the disciplinary hearing. The dismissal was therefore unfair under section 98(4) of the Employment Rights Act 1996.

On remedy, the tribunal assessed a basic award of £2,362.50 and compensatory losses of £15,180.98, but reduced both for 75% contribution and applied a 75% Polkey deduction to the compensatory loss. It then applied a 20% uplift under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 for unreasonable failure to comply with the ACAS Code of Practice. The resulting award was £1,847.34.