How not to dismiss an employee….and the consequences (L Cassell v Cracker Jacks Day Nursery Limited (1) and Mrs Fiona Lewis (2)).

In the case of L Cassell v Cracker Jacks Day Nursery Limited (1) and Mrs Fiona Lewis (2) ET 3322497/2016, the Claimant Mrs Cassell presented claims for Pregnancy/Maternity Leave Discrimination, Unfair Dismissal and Wrongful Dismissal. The Tribunal found sufficient procedural and substantive unfairness to conclude that the Claimant had been unfairly dismissed. It also found that she was wrongfully dismissed, as there was no evidence of gross misconduct sufficient to justify summary dismissal. The complaint of Pregnancy/Maternity Leave Discrimination was not upheld.

The factual background

The Claimant had been employed as a nursery manager in a small private nursery run by the Second Respondent, Mrs Lewis and her husband since November 2011. On 3 August 2015, the Claimant commenced a period of maternity leave.

At around the beginning of October 2015 Mrs Lewis received complaints from staff members. These included that the Claimant unreasonably refused holiday requests, ante-natal appointments, medical appointments and other requests for absences and that the Claimant had caused other staff members to fear Mrs Lewis by making derogatory comments about her.

Mrs Lewis instructed a former HR colleague, Gary Armstrong, to investigate. His report concluded that the Claimant perpetrated a culture of fear, that she bullied and harassed other staff members, sustained a long-standing campaign of subversive and disruptive conduct and that she led a culture of nepotism and favouritism among various other findings.

On 12 October, the Claimant received a text from Mrs Lewis, stating that serious allegations had been raised against her and invited her to a meeting the following day. Accordingly, the Claimant attended the meeting. The meeting was recorded, and the Claimant was told she could not have anybody accompany her. She complained that she was being bombarded and made to leave the meeting. Mrs Lewis then summarily dismissed her.
On 15 October, Mrs Lewis wrote to the Claimant confirming her summary dismissal “on the grounds of gross misconduct due to bullying, breach of implied trust and confidence and some other substantial reason justifying termination of employment”.

On 2 November 2015 the Claimant produced a response to the interim investigation report. Mrs Lewis instructed an independent HR consultant, Nancy Batchelor, to conduct the appeal with Mr Lee Corless, a friend of Mrs Lewis, to act as note-taker. The appeal meeting took place on 15 January 2016. Mrs Lewis had instructed Mr Corless to audio record the meeting. He did so covertly. Ms Batchelor subsequently withdrew from the appeal process, which was carried on by Mr Corless.

He wrote to the Claimant on 26 January 2016 to ask her to confirm the accuracy of his handwritten notes of the appeal meeting. He did not mention that he had also made an audio recording. Later, he invited the Claimant to a new appeal meeting on 12 February 2016 but the Claimant declined to attend because she said that she had no confidence that he would find in her favour. On 26 February 2016 Mr Corless sent his appeal outcome to the Claimant. The appeal was rejected.

The Claimant submitted her claims to the Employment Tribunal.

The decision of the Employment Tribunal

The Tribunal considered the Unfair Dismissal claim in light of the relevant legislation (sections 94 and 98 of the Employment Rights Act 1996), relevant case law and the ACAS Code of Practice on Disciplinary Procedures. It followed the three-step procedure to conclude that the Claimant had indeed been unfairly dismissed, taking as its starting point the right of the employee not to be unfairly dismissed.

First, the Tribunal considered whether there was a potentially fair reason for the dismissal, specifically, whether the First Respondent had a genuine belief in the misconduct alleged.

Second, whether in the circumstances, the First Respondent acted reasonably or unreasonably in treating the misconduct as a sufficient reason for dismissing the employee. The Tribunal considered whether the First Respondent had reasonable grounds on which to believe that the misconduct the Claimant was accused of had occurred. The Tribunal also had to consider the investigation that the First Respondent had carried out and whether the investigation and the Claimant’s dismissal fell within the range of reasonable responses.

Third, in considering the above matters, the Tribunal had to ensure it did not substitute its own view for that of the First Respondent but must assess the actions of the First Respondent against the range of reasonable responses.

The ACAS Code of Practice on Disciplinary Procedures (2015) sets out the steps that the First Respondent ought to have taken to address the allegations of misconduct against the Claimant. The Code is not legally binding but reflects best practice and can be taken into account by the Tribunal in determining whether a person has been unfairly dismissed on grounds of misconduct.

In this case, the Tribunal found that there was a “wholesale disregard of the basic requirements of the ACAS Code of Practice”. The Tribunal’s specific criticisms of the process were:

• The First Respondent gave the Claimant less than 24 hours’ notice of the investigation meeting, was not told the purpose of the meeting in advance, was not given anything in writing prior to the meeting and was not given any written account of the allegations against her. This was especially concerning as an investigation report had been prepared and could easily have been provided to the Claimant.
• The meeting on 13 October that was billed as an investigation meeting turned very quickly into a disciplinary and dismissal meeting.
• The Tribunal concluded that there ought to have been a procedure for the Claimant to be warned that the meeting would turn into a disciplinary meeting, that she should know the allegations in advance and to be given the right to a companion.
• The dismissal letter had stated that the Claimant’s conduct at the meeting was one of the reasons that she had been summarily dismissed. However, the Tribunal reviewed the transcript of the meeting and did not consider the Claimant’s conduct amounted to to “…treating the process with scant regard and with a fair degree of arrogance in that your primary approach was not to engage but to control it moving forward” as the Respondent claimed.
• The Claimant had been given no opportunity to know the allegations against her in advance, to consider her response or to consider what evidence and witnesses she would wish to produce.
• Despite the First Respondent appointing an independent person to compile the investigation report, Mrs Lewis was extensively consulted in its preparation and then went on to conduct the investigation/disciplinary meeting herself and to dismiss, which went against the requirement for impartiality in the Code. This was inappropriate given that one of the allegations against the Claimant was that she had turned staff against Mrs Lewis.

In conclusion, there was no procedure, fair or otherwise.

The Tribunal then considered the appeal process, concluding that it had also been unfair and was tainted by dishonesty. The specific issue around the appeal process was that Mrs Lewis was involved in scrutinising three witness statements that were made by staff members. These were not provided to the Claimant until 2 days prior to the appeal meeting. It was also clear to the Tribunal when these witnesses were cross-examined that there were significant disparities between what they said at the initial investigation meetings, and the content of the witness statements.

The Respondent also failed to reveal to the Claimant that it had recorded the appeal meeting without her knowledge. This fact did not surface until the Tribunal hearing started. The Tribunal considered that this amounted to dishonest conduct.

The Tribunal agreed with the Claimant’s argument that the allegations were based on unsubstantiated gossip, grumbles, distortions and untruths. It found that there was no fair reason for the dismissal, the Respondent not having conducted sufficient investigation or produced reliable evidence to justify its decision to dismiss. The dismissal was outside the range of reasonable responses.

Wrongful dismissal

The Tribunal decided that the Claimant had been wrongfully dismissed. It considered the evidence before it and could find no evidence of gross misconduct such as to justify summary dismissal.

Conclusion

This case is a salutary lesson to all employers about the need to conduct disciplinary processes fairly. In particular, employers should do all they can to ensure impartiality by separating out the various stages of the process and assigning them to different individuals, which would have been entirely possible in this case. A thorough and above-board investigation will go a long way to convincing a Tribunal that the employer did all that was reasonable to determine whether the employee was guilty of misconduct and that a decision to dismiss falls into the “range of reasonable responses”.