Ms E Petts v Alice (Relief of Poverty Advancement of Community): 1301469/2023

EMPLOYMENT TRIBUNALS

Case No 1301469/2023

Between

MS EMILY PETTSClaimant

ALICE (RELIEF OF POVERTY ADVANCEMENT OF COMMUNITY)Respondent

Before

Employment Judge N Clarke

Mr. P. Roberts (instructed by Solicitor) for claimant

Date 23 June 2023

JUDGMENT

[1]The claim for Unfair Dismissal is dismissed.

[2]The claim for Wrongful Dismissal succeeds with damages assessed at £3,220.

[3]The claim for a defective written statement of Employment Particulars succeeds with damages assessed at £1,076

REASONS

Introduction

[1]I gave judgment in this claim on 23 June 2023. These are the written reasons. Claims and Issues

[2]I discussed the Issues with the parties at the outset of the hearing and the following issues were agreed:

Introduction

[1]Unfair dismissal1.1 Was the Claimant dismissed? It was accepted by the parties that the Claimant had been dismissed.

1.2 What was the reason for the dismissal?1.2.1 The Respondent’s case was that the reason for dismissal was conduct, namely a) The Claimant claiming and receiving payment for nursery fees from the Respondent between March and September 2020 in the sum of approximately £2,000. b) Not declaring those facts to the Board c) Signing off the Annual Report and Financial Statements for the year ended 28 February 2021 that included the statement, “No trustees have received any other benefits from the charity during the year”, when the Report did not include the nursery fees in (a) above.

1.2.2 The Claimant’s case was that the above was not the genuine reason for dismissal but that there was a “witch-hunt” against her.

1.3 Was it a potentially fair reason?

1.4 Did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? In particular:1.4.1 Were there were reasonable grounds for that belief?

1.4.2 At the time the belief was formed, had the Respondent carried out a reasonable investigation?

1.4.3 Did the Respondent otherwise act in a procedurally fair manner?

1.4.4 Was dismissal within the range of reasonable responses?

[2]Wrongful dismissal/Notice pay2.1 What was the Claimant’s notice period? The parties agree that the relevant notice period was 7 weeks

2.2 Was the Claimant paid for that notice period? The parties agree that the Claimant was not paid notice.

2.3 If not, was the Claimant guilty of gross misconduct? / did the Claimant do something so serious that the Respondent was entitled to dismiss without notice?

[3]After I had given judgment on these claims, the Claimant’s representative raised a matter under Schedule 5 of the Employment Act 2022. The issues were:3.1 When these proceedings were begun, was the Respondent in breach of its duty to give the Claimant a written statement of employment particulars or of a change to those particulars?

3.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.

Procedure

[4]This hearing was by CVP and there were no issues with the link.

[5]There was an agreed file of documents of 444 pages. I explained to the parties at the outset that I had read the pleadings, witness statements and the documents expressly referred to in those witness statements. I asked them to proceed on the basis that I had not read any other document and would not do so unless specifically taken to it during the evidence. I reminded the representatives about this a number of times during the hearing.

[6]The Respondent called two live witnesses, who had both provided witness statements, David Hole and Matthew Dashper-Hughes. The Claimant, Emily Petts, gave oral evidence and also relied on a witness statement.

Findings of Fact

[7]I made the following findings of facts on the balance of probabilities. Very little was in dispute, factually, and where there was a dispute I explain why I made the finding I did.

[8]The Claimant and her mother, Stephanie Talbot, established the Respondent charity in 2011 and the Claimant became a trustee from 2012 (until October 2022)

[9]In 2015 the Claimant became an employee of the Respondent as a Family Support Director. She subsequently became Deputy Chief Executive.

[10]The Respondent’s Annual Report and Financial Statements for the year ending 28 February 2021 was in the bundle. It is signed as approved by the trustees and signed on their behalf by the Claimant. It records, under the heading “Trustees remuneration and expenses”:10.1 “Emily Petts received remuneration of £21,626 …during the year.”

10.2 “The remuneration paid relates to work carried out in the role of Family Support Director”.

10.3 “Legal authority under which the remuneration was paid was requested from the Charity Commission and was granted on 7 February 2018”

10.4 “No trustees have received any other benefits from the charity during the year”

[11]The Claimant says in her witness statement, “The Charity Commission authorised me to be paid even though I was a Trustee.”

[12]The Claimant and her mother attended the offices of Employment Law Solutions, who provided HR services to the Respondent, on 23 September 2022 to register their concern about team morale and the possibility of a reorganisation.

[13]Staff of the Respondent had concerns, as the Claimant accepts in her witness statement, and the Grounds of Resistance record that “all staff made complaints about the way that the Claimant and her mother were managing the charity” on 4 October 2022.

[14]The situation is reflected by an email of Alf Murphy, of ELS, on 6 October 2022 (at 14.59): “.. I was tasked by Steph Talbot and Emily Petts, CEO and deputy of the Alice Charity, to look into an alleged breakdown of trust and confidence with Kayla Poole and Helen Moss. I met with these two ladies and other colleagues yesterday. Kayla and Helen raised grievance [sic] to me about the CEO and her deputy and made protected disclosures also”

[15]Mr Murphy decided to investigate the Claimant and her mother, as is reflected in a further email from him that day (at 17.06), where he states, “Considering that I want to investigate Ms Talbot and Ms Petts…”

[16]Kayla Poole was tasked with the disciplinary investigation of the Claimant. A document headed “Evidence of Kayla Poole” appears in the bundle. It notes, “On or shortly after Tuesday, 4th October 2022, I was approached by ... Katy Sharman, who said that she had become aware that I was making enquiries into the conduct of Emily Petts”.

[17]There is an inconsistency here between Mr Murphy’s email, which suggests an intention to commence an investigation in the future (i.e. after 6 October 2022), and Ms Poole’s “evidence”, that suggests that it had already started.

[18]Ms Poole’s “evidence” continues: 2. [Katy Sharman] reminded me that she had worked as an Executive Administrator to Stephanie Talbot for a while last year. 3. She told me how Steph had asked her to complete and file some outstanding receipts for the Charity’s accounts for year 2020. 4. She said she had become concerned when she came across invoices for Nursery fees for Emily’s son, Charlie. … 6. She told me that she had raised her concerns with Steph by asking her if she really wanted her to file the invoices or if they had been misplaced. 7. She said that Steph had told her that it didn’t concern her that she should just place the receipts in the relevant parts of lever arch files. 8. She also said that a few hours afterwards, Stephanie had met with her to tell her that her position was being made redundant. Katy said that she had then resigned. … 14. I found invoices for .. Emily’s son, Charlie’s nursery care. .. 15. The September Nursery fee invoice was put through as a project called ‘Little Kindnesses’

[19]A similar document (a form of statement) appears for Katy Sharman in the bundle that is consistent with Ms Poole’s statement and states, “When I knew that Kayla was making enquiries, I told Kayla about the invoices I had seen as I did not think it was right for the Charity to be paying the nursery fees..”

[20]The Claimant’s mother was suspended on 7 October 2022 and resigned later that day.

[21]The Claimant was suspended on 8 October 2022, but there is no document that explains that suspension, although I note that the Claimant refers to a letter of suspension in her letter of 2 November 2022.

[22]Kayla Poole had been appointed an investigating officer, but it is not clear from the evidence, as noted above, exactly when that was. Neither is there any evidence demonstrating that the Claimant was told about this appointment or the basis of it. In an email of 20 October 2022 to Alf Murphy, the Claimant says: “.. the content below confirms that Kayla Poole is the Investigating Officer, something that seems very unfair in the circumstances. Whilst I have still received very little information by way of the allegations resulting in my suspension, the comments that you and your team have made to both me and Steph Talbot would suggest that the investigation was triggered by concerns raised by Kayla Poole and therefore I do not understand why an impartial investigator would not be appointed particularly given the investigation was regarding the CEO and Deputy CEO.”

[23]A document that the Claimant produced for the subsequent Disciplinary Hearing includes a message from “Nath” in which he reports that Kayla Poole was looking for nursery fees invoices on 12 October. He states that he believed the Claimant was “subject to work bullying false allegations and has had no chance to defend herself.”

[24]I was also referred to a message from “Julie”, Chair of the Board, that states: “Hi Steph hope you’re ok Well Alice is in a bit of a mess of course- I understand you’re hurt and angry but at the moment the only people suffering are the ones you originally set up Alice to help. We have no access to the crm, quick books, Facebook etc but I suppose you already know this Did you speak to your solicitor and did he say that’s ok? Is this how you want to exit the Charity – your whole family are completely sabotaging everything you and Emily have built up? And the vulnerable families you wanted to help will be the victims along with your staff – please ask your solicitor to confirm he thinks it’s all legal and above board to do all this as I’m not sure it is? Let me know urgently please x”

[25]The Claimant’s case was that this message demonstrates that the process was pre-judged, in that Julie had already concluded that the Claimant had sabotaged the Respondent by acts done well before the suspension.

[26]In my judgment, however, the context of the message is the Respondent’s continuing access to its systems and the suggestion (as evidenced in the subsequent invitation to Disciplinary Hearing letter) that the Claimant’s family had removed items from the Respondent’s premises over the weekend of 8 and 9 October 2022. Julie’s email to Stephanie Talbot on the same day (12 October) notes: “..staff came in on Monday morning to find a lot of equipment had gone over the weekend, including the Wi-Fi point for the main office” And ,“..would you be prepared to at least give us the admin passwords for all the IT systems? Obviously we’d be even happier if you could reinstate the original Facebook page, the Canva and so on as well, but if nothing else the admin password for the IT would at least allow us to carry on supporting local families and to let the staff do their jobs.”

[27]What is being suggested, I find, is that the Claimant’s “whole family” was “sabotaging” the Respondent by preventing it from having access to its systems and making it difficult to continue operating by acts it (the family) committed on or since 8 October 2022.

[28]On 25 October 2022 Alf Murphy assured the Claimant that, “Kayla is an impartial and entirely professional person and as the Charity’s HR director ..is the most appropriate person to conduct any investigation into your alleged misconduct”. He proposed an investigation meeting.

[29]The Claimant replied by email later that day stating that she was happy to meet with Kayla and “there are no conflicts to resolve at this stage if the investigation remains impartial.” In evidence before me, the Claimant indicated, emphatically, that she would rather have had Kayla investigating matters because she “had less confidence in Alf Murphy”

[30]The investigation meeting took place on 26 October 2022 and was audiorecorded. I note the following from the transcript:30.1 The Claimant was asked to discuss “nursery fees paid for you by the charity” and was shown nursery invoices.

30.2 The Claimant was asked whether “having your nursery fees” was part of the charity’s objectives and replied that she felt it was because the aims were to “support not only vulnerable families, but its staff”

30.3 Kayla stated that “one of the reasons for today [was] to give you the opportunity to see the evidence that was found so you can be better prepared for your hearing”.

30.4 That Claimant was asked if the Board of Trustees knew that she was claiming nursery fees and said that she did not know.

[31]There was no written evidence, and the witnesses were not able to assist, as to who decided that there was a disciplinary case to answer such that a disciplinary hearing was required. David Hole, the Respondent’s Interim CEO said in evidence, that as the Claimant had been suspended, he would expect a disciplinary hearing, which seemed to ignore the possibility that there may have been no case to answer. That is consistent with Kayla Poole’s comment in 30.3 above. There was, I find, an assumption that the allegation would proceed to a disciplinary hearing.

[32]The Claimant was invited to a Disciplinary Hearing, to be held on 2 November 2022, by letter of 31 October 2022. The allegations were, broadly, that the Claimant had claimed and received a total of £2,129.50 from the Respondent against invoices for nursery fees. The letter made no reference to:32.1 Any disciplinary policy (and one was not produced in the hearing before me)

32.2 Gross misconduct or any “offence”

32.3 “dishonesty”

32.4 The Respondent’s Annual Report and Financial Statements as being the basis of any allegation.

[33]The letter does refer to the possibility of a dismissal (albeit not a summary dismissal). David Hole, the newly appointed interim CEO, was to be the Chair, and a bundle of documents, including the Annual Reports was enclosed for the Claimant.

[34]There is a transcript of a staff meeting on 1 November 2022, which was covertly recorded. The Respondent does not take a point about the covert recording. The Claimant did not attend the hearing, so cannot have recorded it. I note the following from the transcript:34.1 David Hole states, “Tony was dealing with facilities management here, Joe was IT, Emily was Deputy Chief Exec and Steph was Chief Exec.”

34.2 Later he stated “..either Emily will be unsuspended or will leave the organisation. At this moment I don’t want to prejudice that, but the trustees are there to govern their charity and fell they thought it was appropriate to suspend her, at that time, based on professional advice given to them.”

[35]The Claimant complains that David Hole’s reference to her in the past tense (in34.1 ) demonstrates that the outcome was pre-judged. I have concluded that this was simply a loose use of language and that the comment in

34.2 above clearly indicates that Mr Hole understood that one possibility was that the Claimant would return to work.

[36]Also on 1 November 2022, the Claimant asked for a postponement of the Disciplinary Hearing and made a Subject Access Request. The latter did not make a request for specific documents.

[37]The Claimant sent a further letter to David Hole on 2 November 2022 in which she:37.1 Repeated her request for more time.

37.2 Said that the hearing at such short notice would exacerbate her mental health issues and would prevent her from taking advice.

37.3 Suggested that the outcome was predetermined.

37.4 Reminded Mr Hole that she had raised concerns that she did not believe the investigation was impartial.

37.5 Said that she had a “significant amount of information” to be shared that could not be considered if the hearing went ahead as planned.

[38]Kayla Poole responded to the Claimant’s two letters by an undated letter (at page 130 of the bundle), but which the Claimant received on 2 November 2022 (as noted from her reply on 7 November) which stated:38.1 That the hearing would be postponed to 7 November 2022.

38.2 That “There can be no doubt that the Charity paid at least some of your nursery fees and it is only a matter of you giving the Charity a legitimate reason for that having happened”

38.3 “I will not be in attendance”

38.4 “Alan Crossley [will] attend the hearing as your companion”

38.5 It would be a fair and objective hearing and had not been predetermined.

38.6 The matter could be considered on the papers if the Claimant felt she could not attend in light of the anxiety she had referred to.

[39]The Claimant responded on 7 November 2022, directing her response to David Hole only. She thanked him for the postponement and enclosed a number of documents. She invited him to consider the case “on the papers” and thanked him for this “reasonable adjustment”. In oral evidence before me she accepted that she had sufficient time to prepare for the hearing. The bundle of documents ran to about 65 pages and included a report that she had produced specifically, supporting documents, the Respondent’s accounts to February 2021 and a statement from her mother.

[40]This bundle of documents was handed to David Hole at the disciplinary hearing by Alan Crossley, one of the Claimant’s colleagues who attended as her companion. The Claimant did not attend, in accordance with her letter.

[41]I note, from the Claimant’s report, the following:41.1 She admitted to having claimed nursery fees against the “Little Kindnesses project”, which she had made in good faith and with authorisation from her line manager.

41.2 She identified two further invoices, which raised the total claimed to £2,493.50.

41.3 At the time she had been in significant financial hardship.

41.4 “The request was authorised by the CEO who had the authority to do this. I would like to note that the Trustees remit is not that of an executive management team and roles clearly differ between the executive Management Team and the governance provided by the Trustees”.

41.5 Other employees had been supported by the Little Kindnesses project.

41.6 Whilst the Accounts did state “no trustees have not received any other benefits from the charity during the year”, and reference to the nursery fees should have been included, “it is not a document that I prepared myself and therefore it is not that I have excluded this personally with an intention to deliberately mislead”

[42]The outcome letter is dated 9 November 2022 and concluded:42.1 “You kindly offered some added information to the effect that during 2020 you actually received £2,439.50 funds from the Charity general reserved to settle invoices from [the nursery]”

42.2 “You agreed that the claims were made under the Charities [sic] “Little Kindness” [sic] Project”

42.3 This meant that in a twelve-month period, the Claimant received 21% of that project’s expenditure. The remaining sum (almost £8,000) was shared between 327 families, which meant that the Claimant’s share was disproportionate.

42.4 As an employee and trustee, “you should have been aware of your respective duties, dual roles and potential for significant conflict… especially considering you being the person responsible for signing off the accounts..”

42.5 “As both an employee and trustee, you placed yourself in an invidious position but should still have appreciated that full disclosure of Trustee remuneration and benefits is vital to underwrite the Trust, to maintain transparency and respect the public purpose that the Charity was established for”

42.6 The accounts signed off by the Claimant carried a note that no trustees had received any other benefits “which was clearly not true”

42.7 “You have endangered the reputation of the Charity; the disproportionate use of the Little Kindness fund completely undermined the credibility of the Charity.”

42.8 The statement from the Claimant’s mother was “unavoidably conflicted”

42.9 The Claimant, “should have questioned [her] CEO .. with regards to the tax consequences for [herself] and the Charity” and the letter went on to state, “I do not believe that you could have thought that the taking of such disproportionate sums of money was proper behaviour.”

42.10 “.. you signed off the accounts without disclosing the monies and this is evidence of your dishonesty”

42.11 “.. you have committed gross misconduct by taking £2,493.50 for your son’s nursery fees from Charity reserves without alerting the Board and/or making any other disclosure of the sum. I believe that by falsely declaring that “no trustees had received any other benefits” you were acting dishonestly and damaging the reputation of the charity and its charitable purpose.”

42.12 That the Claimant should be summarily dismissed.

42.13 That the Claimant could appeal the decision.

[43]In oral evidence, Mr Hole said that he had not looked into whether the Respondent’s CEO had authorised payment of the monies but went on to say he thought it was most likely that the CEO had authorised payment. I accepted that evidence because it was consistent with what Mr Hole had said in the dismissal letter, that the Claimant should have challenged the CEO about the tax implications. He did, however, accept that he had not looked into whether the CEO herself had authority to allow such payments.

[44]In oral evidence Mr Hole said he had accepted that the CEO had proposed taking the sums from the Little Kindnesses budget pot, and that other employees had received money from that fund. He accepted that he had made an error in saying that the Claimant had resigned as a trustee, but that this had not formed a factor in his decision.

[45]Mr Hole went on to say that the main thrust of his decision was that the taking of funds without discussing it with the Board in the context of the Claimant’s dual role, along with the dishonesty of signing the accounts in affirming that the trustees had no other benefits was the basis of the dismissal. He said that the finding of “dishonesty” was integral to his decision.

[46]The Claimant appealed the decision by letter of 15 November 2022, which enclosed a further report of twenty-six pages. The headings of the grounds of appeal are:46.1 That my dismissal was to ensure that the plan to remove all members of my family from Alice Charity was completed.

46.2 That the investigation was a Witch Hunt against me and my family.

46.3 That you provided me insufficient time to prepare for the disciplinary hearing

46.4 You ignored the former CEO’s statement that payments were authorised and that Kayla Poole and the Board of Trustees were aware of them

46.5 The invoices were in the Charity’s records so there was no attempt to hide them.

46.6 You announced to staff that I ‘was’ the Deputy CEO before the conclusion of the disciplinary hearing.

46.7 You ignored the fact that similar payments were given to other members of staff in the past.

46.8 There were inaccuracies in the dismissal letter

[47]I noted that the CEO’s statement that was provided for the Disciplinary Hearing did not state that Kayla Poole and the Board of Trustees were aware of the payments. I also noted that this point was not put to the Respondent’s witnesses in cross-examination before me, and that what had been put was the hypothetical, “if the Board had approved the payments…”

[48]The appeal did not raise any complaints such as that:48.1 The outcome had relied on matters that the Claimant had not been able to respond to in the hearing.

48.2 That issues had been raised in the hearing that had not formed part of the allegations against the Claimant.

[49]The Claimant was invited to an appeal, on 23 November 2022, by letter of 21 November 2022. Appeal letter bp384

[50]The appeal was heard by Matthew Dashper-Hughes who I found to be a reliable and balanced witness. Where David Hole was somewhat bullish and had a tendency to avoid answering questions, even when asked by me to confine an answer to “yes or no”, Mr Dashper-Hughes was fair and made sensible concessions.

[51]The outset of his letter reflects the level of care he took with the appeal. As it states, “I have spent significant time over the past week reflecting on our meeting and reviewing all the relevant materials. I have also listened back to the recording of our meeting in its entirety, and I believe I have a robust understanding of the data that have been presented to me. I confess I have found this process very challenging”.

[52]He goes on to state the following:52.1 “I have had to remined myself of my obligation to remain objective and to weigh things up based on the facts.”

52.2 “Over the three years I have been privileged to be a trustee, I have had respect and admiration for the drive you and your mother put into the charity. It as always seemed to me that you are fundamentally a good person, who acts with good intent.”

52.3 “..the appeal hearing was not a full re-hearing of the disciplinary”

52.4 The appeal would involve a review of the process and its fairness, the outcome and whether that was appropriate and reasonable and to consider any new information.

52.5 “I cannot see anything to suggest that you did not have the opportunity to state your case [in the Disciplinary Hearing]”

52.6 “I cannot help but agree … that signing sets of accounts that not only failed to declare benefits you had received, but also made an explicit statement that no such benefits had been received means you did commit an act of Gross Misconduct”

52.7 “I struggled to believe that you were being intentionally dishonest…. You told me that you had signed the accounts in good faith. They were prepared by your mother, a trained accountant. … you put it to me that had any other Trustee been asked to sign the accounts they would, likely, also have signed them, trusting they had been properly prepared. … I am forced to remind myself that the statement ..”no trustees received any other benefits” is a statement in plain English [and that] you were almost uniquely well-placed to challenge the accuracy of that statement.”

52.8 “I still do not believe that you’re a dishonest character. I looked at the responsibilities of a Trustee signing the accounts as a complete, true and accurate record of the charity’s activities for the year, and I was forced to conclude that any Trustee who signed the accounts should be at pains to satisfy him or herself of their accuracy. I regret to say that the sanction of dismissal does, therefore, appear reasonable and proportionate.”

52.9 A review of the further material provided by the Claimant with the conclusion, “I could not see a compelling case that Kayla and Helen stirred up discontent in the team. That Kayla and Helen orchestrated discontent is the keystone to your case that there was a witch hunt against you..”.

52.10 The process was fair and the decision to dismiss was appropriate. The finding of Gross Misconduct was reasonable and the sanction was appropriate. The decision to dismiss is upheld.

[53]In oral evidence he confirmed that he had not concluded that the Claimant had been dishonest but that the “outcome is one that will be looked at as being dishonest”. I took this to mean that he did not believe that the Claimant had been dishonest but that other may look at her acts, from the outside, and conclude that she had been. That seemed in my judgment to neatly encapsulate what had been expressed elsewhere as, “bringing the charity into disrepute”.

[54]He said it was impossible to distinguish between the Claimant’s roles as an employee and a Trustee for these purposes – in other words that even if a particular act was done technically as part of the Claimant’s role as a trustee, it is impossible to separate that from her acts and duties as an employee. Finally, he said that it was the combination of the Claimant taking the funds, the proportion of funds from the Little Kindnesses project (relative to other donations) and the signing off of the accounts that justified the sanction. Had the Claimant not signed off the accounts, he said, a lesser sanction would have been appropriate.

[55]I accepted his evidence, as I have said. He had clearly adopted an open mind to the process, drawing different conclusions to the Disciplinary Hearing, even though the appeal had not been a rehearing, in particular in concluding that the Claimant had not been dishonest.

[56]It was put to the Claimant in evidence that she had been thoroughly dishonest and had known what she was doing in taking nursery funds. She denied being dishonest. I found her to be a credible witness.

Law

[57]An employee has the right not to be unfairly dismissed by his employer by virtue of section 95 of the Employment Rights Act 1996.

[58]I consider fairness by applying section 98 and the following two stages:58.1 First, the employer must show the reason for the dismissal and that it is one of the potentially fair reasons set out in section 98, and

58.2 If the employer is successful at the first stage, I determine whether the dismissal was fair or unfair under section98(4). This requires considering whether the employer acted reasonably in dismissing the employee for the reason given.

[59]The burden on the employer in the first stage is not a high one, it is ‘sufficient that the employer genuinely believed on reasonable grounds that the employee was incompetent or guilty of misconduct. The employer does not have to prove the offence…’ Gilham and ors v Kent County Council (No.2)

1985 ICR 233

[60]When considering the second part of the test, section 98 states: ‘the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) — (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case’.

[61]There is no burden of proof on either party and the issue of whether the dismissal was reasonable is a neutral one for the tribunal to decide — Boys and Girls Welfare Society v Macdonald

1997 ICR 693

, EAT.

[62]A tribunal must not put itself in the position of the employer and consider how it would have responded to the established reason for dismissal. Employers often have at their disposal a range of reasonable responses to matters such as the misconduct or incapability of an employee, which may span summary dismissal down to an informal warning. It is inevitable that different employers will choose different options. In recognition of this fact, and in order to provide a ‘standard’ of reasonableness that tribunals can apply, the ‘band of reasonable responses’ approach was formulated and approved by the Court of Appeal in British Leyland (UK) Ltd v Swift

1981 IRLR 91

: ‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view.’

[63]The test was applied in Iceland Frozen Foods Ltd v Jones

1983 ICR 17

: ‘We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of [S.98(4)] themselves;

(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’

[64]Even where the sanction of dismissal is really at the limits of reasonableness, an employment tribunal is entitled to find that it is just about within the band, e.g. MacNab v British Telecommunications plc ET Case No.S/4100696/17.

[65]The ‘range of reasonable responses’ test applies not only to the decision to dismiss but also to the procedure by which that decision is reached — J Sainsbury plc v Hitt

2003 ICR 111

[66]In West Midlands Co-operative Society Ltd v Tipton

1986 ICR 192

the House of Lords said that both the original and the appellate decision by an employer to dismiss are necessary elements in the overall process of dismissal. To separate them and to consider only one half of the process in determining whether the employer acted reasonably in dismissing an employee is artificial.

[67]Therefore, although it would be wrong for an employer to dismiss an employee for a reason that only surfaced during the appeals process, a tribunal should consider facts that came to light during the appeal in considering whether the employer’s decision to dismiss was reasonable.

[68]Nothing in principle prevents an employer’s appeal panel upholding a decision to dismiss on a different basis from that on which the original decision was made, but for the dismissal to be fair, the employer must ensure that whatever grounds remain still justify dismissal - Perry v Imperial College Healthcare NHS Trust EAT 0473/10 P.

[69]Defects in the original disciplinary procedures may be remedied on appeal. For this purpose, it is irrelevant whether the appeal hearing takes the form of a rehearing or a review as long as the appeal is sufficiently thorough to cure the earlier procedural shortcomings - Taylor v OCS Group Ltd

2006 ICR 1602

[70]There is no limitation on the nature and extent of the deficiencies in a disciplinary hearing that can be cured by a thorough and effective internal appeal - Khan v Stripestar Ltd EATS 0022/15.

[71]The scope of ‘conduct’ as a potentially fair reason for dismissal is not limited to conduct that takes place in the course, or within the scope, of employment. It also covers conduct outside employment ‘so long as in some respect or other it affects the employee, or could be thought to be likely to affect the employee, when he is doing his work’ — Singh v London Country Bus Services Ltd

1976 IRLR 176

, EAT.

[72]Wrongful dismissal, on the other hand is a claim for breach of contract. The test is whether the employee has committed a repudiatory breach of contract that entitled the employer to summarily dismiss them - Laws v London Chronicle (Indicator Newspapers) Ltd

1959 1 WLR 698

, CA

[73]The employee’s conduct ‘must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in his employment’. Neary and anor v Dean of Westminster

1999 IRLR 288

approved in Briscoe v Lubrizol Ltd

2002 IRLR 607

[74]The employee’s conduct should be viewed objectively (Briscoe) by the Tribunal. It is not a question of what the Respondent considered the position to be or its motivation (Williams v Leeds United Football Club

2015 IRLR 383

) and an employee can repudiate the contract even without any intention to do so. The test for the tribunal is whether, objectively, there was a repudiatory breach of contract. Whether there has been a repudiatory breach is a question of fact.

Conclusions

[75]It is accepted that the Claimant was dismissed.

[76]The Respondent says that the reason for dismissal was misconduct, being:76.1 Having her child’s nursery fees paid by the Respondent charity in the sum of £2,439.50.

76.2 Not declaring that to the Board of Trustees

76.3 Signing of the Charity’s accounts that did not include the nursery fees as a benefit to the Claimant and stated that “No trustees have received any other benefits from the charity during the year” when that statement was incorrect.

[77]The Claimant says that this was not the genuine reason for dismissal, but that the true reason was a witch-hunt against her.

[78]I have concluded that conduct was the genuine reason for dismissal because:78.1 Although there was an obvious background of animosity between employees, the process had a significant degree of independence. ELS, and independent organisation oversaw the process, David Hole was a new and external appointment and Mr Dashper-Hughes was a fair person for the reasons I have already articulated.

78.2 There were criticisms on both sides – the Claimant and her mother on one side (with some supporters), and other employees on the other side.

78.3 Although there had been references to “sabotage” and reasons for the Claimant to allege that matters were pre-judged, these were not objectively justified for the reasons I have already given.

78.4 The primary facts of the misconduct alleged were admitted. The Claimant had used Charity funds to pay for her child’s nursery fees. This was not a case of a wholly false allegation being made for nefarious purposes.

[79]I have concluded that the Respondent acted reasonably in all the circumstances in treating the misconduct as a sufficient reason to dismiss the Claimant.79.1 There were reasonable grounds for that belief. The Claimant accepted having used Charity funds in the manner described. There was no evidence that the Board had known about it. The Claimant admitted having signed the accounts that contained the incorrect statement.

79.2 The Respondent had conducted a reasonable investigation: Although the Claimant had raised concerns about Kayla Poole being the investigator: a) The fact of the payments was not in issue, indeed the Claimant had been able to find more invoices than the Respondent. b) The Claimant was not critical of the investigation itself. c) The Claimant had said that Kayla Poole was preferable as an investigator to the alternative. d) The Claimant had said, albeit in that context, that she was happy with the investigation. e) This was a small organisation with a limited number of suitable candidates to investigate.

79.3 The Respondent had otherwise acted in a procedurally fair manner: a) There were procedural failures: there was no written disciplinary policy and many of the documents (appointment of investigator, suspension letter, etc.) had not been produced for this hearing, there was no consideration of whether there was a case to answer after the investigation and the invitation to the disciplinary hearing was deficient (see paragraph 32 above). b) However, the appeal rectified those failures because: i. It was fair and independent for the reasons already outlined. ii. The Claimant had and took the opportunity to set out her case in full. iii. Although Mr Dashper-Hughes had said that the appeal was not a re-hearing he re-opened issues and came to different conclusions, in particular on the question of dishonesty. iv. It took a balanced view on the facts v. It included a fair and open review of the sanction.

[80]I am required to look at the process overall and by reference to the band of reasonable responses. The process was fair and reasonable and within the band of reasonable responses.

[81]The sanction was also, in my judgment, within the band of reasonable responses because:81.1 The Respondent was a Charity with a need to be open and transparent about its use of funds for the benefit of its beneficiaries and the public.

81.2 The Claimant was a senior employee, being Deputy CEO.

81.3 The Claimant was a trustee. Whilst that is distinct from her employment it is a distinction without a difference. The two roles were so closely connected with the Trust and the employer being the same organisation. In any event, the law recognises that acts out of work can be considered as misconduct. Here there was such a close connection between the two that the conduct of the Claimant as a trustee was obviously relevant to her employment.

81.4 The Claimant’s dual role (employee/trustee) increased the need for transparency.

81.5 Benefits in kind, which the payment of nursery fees was, are inherently risky because they can be made without being outwardly visible.

81.6 Signing off of statutory accounts is, self-evidently, important and care must be taken.

81.7 Taking those matters together, the failures are significant. The Claimant’s acts did have the potential to look dishonest from the outside and, therefore, to bring the Respondent into disrepute.

[82]The Unfair Dismissal claim therefore fails.

[83]As to Wrongful Dismissal, the Respondent’s case is that the Claimant was dishonest and that her dishonesty was a repudiatory breach of contract that justified summary dismissal.

[84]I am satisfied that the Claimant was not dishonest:84.1 I found her to be a credible witness and I accept that in signing the accounts to state that no benefits were received she made an oversight rather than being dishonest. It was one line in a long document that was easy to miss. Others had prepared the accounts and she reasonably felt able to rely on them in having produced correct accounts.

84.2 The payment of nursery fees had been authorised by the CEO.

84.3 The Claimant was entitled to, and did, conclude that those payments were therefore acceptable because they had been authorised by the CEO who was also an accountant.

84.4 Mr Dashper-Hughes was well placed to judge the Claimant’s honesty and concluded that she had not been dishonest.

[85]The Claimant was negligent in signing the accounts, but not grossly negligent and not to an extent that put her in repudiatory breach of contract.

[86]The claim for Wrongful Dismissal is therefore upheld.

[87]The parties agree damages for breach of contract in the sum of £3,220.

[88]The Claimant’s representative raised deficiencies in the Claimant’s Statement of Employment once I had given these reasons. An award under section 38 of the Employment Act 2002 is not contingent on such claim having been brought and it is sufficient that the tribunal makes a finding that the employer was in breach of section 1 of the Employment Rights Act 1996 at the hearing.

[89]The Respondent conceded that the Particulars were in breach of section 1 by failing to give a date for commencement of continuous employment or a pension scheme. However, they argued that it was unjust to make an award because the matter had not been pleaded and the Respondent had not therefore been able to rectify the failure, which would have defeated the claim.

[90]The date for determining whether the employer was in breach of the rules on written particulars is the date on which the main proceedings were begun by the worker — S.38(2)(b) and (3)(b) and so the Respondent could not have rectified matters even if the deficiency had been pleaded in the ET1. There was therefore no injustice in making an award. The appropriate award was two weeks’ pay and I did not consider it just and equitable to make a higher award. These were relatively small defects and there was no evidence that they had caused any difficulty for the Claimant. The award would be £1,076 as agreed by the parties. 4 August 2023