Member Mrs L Brown Tribunal Member Mr W Muir Mrs T Graham v Represented by: Mr R Eadie -15 Solicitor DSS Automatic Doors Limited — 2022

The claimant, Mrs T Graham, worked for the respondent from 1 July 2007 until her dismissal without notice for gross misconduct on 22 July 2021. She had been suspended on 29 June 2021 after whistle-blowing disclosures prompted an investigation into alleged conflicts involving Total Door Solutions Ltd, Marian Engineering invoices, Premier Inn and go-karting expenditure, mileage claims, and later a refusal to provide further information. The sex discrimination claim was withdrawn at the hearing and dismissed under rule 52.

On unfair dismissal, the tribunal accepted that the reason for dismissal was conduct and applied the Burchell approach and section 98(4) ERA 1996. It found that the investigation fell outside the reasonable range because of multiple deficiencies, including the handling of the Total Door Solutions website evidence, the overbearing tone of Neil Matthews at the investigatory meeting, the failure to investigate alleged emails from "Matty" and Mr Fraser's role in the Marian Engineering issue, the limited handling of the Premier Inn/karting allegation, and the lack of a reasonable investigation into the mileage claims. The tribunal did, however, find reasonable grounds for belief in guilt in relation to Total Door Solutions Ltd and the claimant's failure to cooperate. On procedural fairness, the majority concluded it was outside the reasonable range to defer and then not investigate the claimant's grievance at the same time as the disciplinary process, although the minority would not have found that aspect unfair.

The tribunal nevertheless held that dismissal would have been a certainty after a fair procedure, so compensation was reduced to zero on Polkey grounds. It also reduced both the basic and compensatory awards by 100% for contributory fault, finding the claimant was a senior and experienced employee who either knew or should have known that her actions were wrong. The wrongful dismissal or notice pay claim failed because the tribunal found the claimant was in fundamental breach of the implied term of trust and confidence and in breach of clause 7.7 of the handbook, so the respondent was entitled to dismiss summarily without notice.

On remedy issues, the claimant was awarded £827.96 gross for holiday pay because the tribunal preferred her evidence that she had worked on four disputed dates: 10 March 2021, 11 March 2021, 28 April 2021 and 4 May 2021. The respondent accepted that it had failed to provide a written statement of terms under section 1 ERA 1996, but the tribunal made no compensation award under section 38 of the Employment Act 2002 because it found exceptional circumstances: the claimant had HR responsibilities for much of her employment and was primarily responsible for the omission.