Employment Judge Liz OrdRamona Morgan (instructed by counsel) for respondentDate 10 October 2025
JUDGMENT
[1]The complaint of unfair dismissal is dismissed.[2]The complaint of wrongful dismissal is dismissed.[3]The complaint of direct race discrimination is dismissed.[4]The complaint of failure to pay holiday pay is dismissed.
REASONS
[1]The claimant complains of: 1.1. Unfair dismissal 1.2. Wrongful dismissal 1.3. Direct race discrimination 1.4. Failure to pay holiday pay Case No: 2302687/2024[2]The issues for the tribunal are set out in the attached Annex.
Evidence
[3]The tribunal had before it the following documentary evidence: 3.1. a documents bundle (142 pages), a video recording, a chronology, and 3 witness statements, 3 legal authorities from the respondent, 1 legal authority from the claimant.[4]On behalf of the claimant I heard evidence on oath from: 4.1. Diana Taylor[5]On behalf of the respondent I heard evidence on oath from: 5.1. Malgorzata Kee (Registered Manager and disciplinary officer) 5.2. Stephanie Whalley (appeal officer).[6]Number references in brackets [01] are to the documents bundle. References in brackets in the format [XX 01 01] are to paragraph and page numbers within witness statements.[7]Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The tribunal has not referred to every document it read and/or was taken to in the findings below, but that does not mean it was not considered if the tribunal was taken to the document in evidence or as part of a reading list. The tribunal notified the parties at the outset of the hearing that they would only read documents that they were specifically referred to and would only read documents referred to in witness statements insofar as they were identified as being relevant to an issue in the case. The Law Unfair Dismissal
The Law
[8]Section 98 of Employment Rights Act 1996 provides, so far as is relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it- a) … b) Relates to the conduct of the employee c) … Case No: 2302687/2024 98(4) whether the dismissal is fair or unfair (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.[9]The ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2015 applies to the procedure followed. Wrongful Dismissal[10]A dismissal by the employer in breach of contract, gives rise to an action for wrongful dismissal at common law. The reasonableness or otherwise of an employer’s actions is not relevant. What has to be considered is whether the employment contract has been breached. The tribunal must be satisfied, on a balance of probabilities, that there was a repudiation of the contract by the employee. Direct Race Discrimination[11]Section 13 Equality Act 2010 – (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Holiday Pay[12]This involves a consideration of whether the respondent has breached the employment contract by not paying the claimant any holiday pay that may have accrued on termination. Other law[13]The authorities provided were considered. These were the well-known cases of British Home Stores Ltd v Burchell [1080] ICR 303 EAT; Iceland Frozen Foods Ltd (appellants) v Jones (respondent) [1982] IRLR 439, Madarassy (appellant) v Nomura International Plc (respondents) [2007] IRLR 246, provided by the respondent, and Allay UK Ltd v S Gehlen UKEAT 0031 20 AT, provided by the claimant. Findings of Fact Dismissal Case No: 2302687/2024
Findings of Fact
[14]The respondent is a national provider of support to adults with learning disabilities and complex needs. The support is provided by staff going to the homes of the supported adults and assisting them with their day to day living.[15]The claimant was engaged by the respondent from 12.3.2019 as a bank worker, and then from 8.11.2021 as an employee until her summary dismissal which took effect on 7.12.2023. At the time of her dismissal the claimant was employed as a Support Worker. The claimant is of black ethnicity.[16]On 20.10.2023, an incident occurred at one of the homes for supported adults between the claimant and another employee, FL. FL was the Practice Lead for that home and, as such, she was senior to the claimant and, in the manager’s absence, took responsibility for the home. As such, part of her role was to assign tasks to staff including the claimant. FL had asked a supported adult to pass on a message from FL to the claimant. The claimant became annoyed at the fact FL did not speak to the claimant directly herself.[17]FL secretly recorded the claimant’s reaction. The recording shows the claimant talking to FL in an aggressive, agitated manner [transcript of recording at 81-83]. The claimant, amongst other things, said to FL: “… next one, you won’t like it. Do you hear what I’m telling you? The next one, you won’t like it, … Let me tell you, you are lead in yourself, not in me … Do not tell me what to do, because I am not doing it … You are playing silly … you act stupid because you are lead …”[18]FL made a comment: “… next time if you don’t mind your language, you’ll be suspended again”[19]The claimant made further comments including: “I deal with high people, I deal with people high, not you, lead … Lead, you are a doormat to me, lead … “[20]FL, referring to the manager, asked the claimant: “You will beat her?” The claimant replied: “It is you I will beat up…It is you I will beat up …try me … try me … Try me for suspension … try me … try me..”[21]FL said: “If you raise your hand” And the claimant replied: “Try me” Case No: 2302687/2024[22]FL’s comments appeared from the recording to be said in a calm, rational manner.[23]FL sent the recording to Becki O’Sullivan, the Home Manager.[24]The claimant sent Ms O’Sullivan an email on 23.10.23 [84] suggesting that FL made intimidating and bullying statements to the claimant to the effect that FL would get her suspended.[25]Ms O’Sullivan undertook an investigation, which involved reviewing the recording and the email sent by the claimant. She did not interview anybody given that she had a clear recording of the conversation. The respondent’s Disciplinary Policy states that the company reserves the right to dispense with an investigatory interview [section 5. at 66]. Ms O’Sullivan prepared an Investigatory Report [85-87] and found that there was a case to answer.[26]The claimant was sent a letter dated 15.11.2023 inviting her to a disciplinary hearing on 17.11.2023 [89-90]. The allegations put to her were that she:• Spoke to a Practice Lead/Colleague in an inappropriate and disrespectful manner; and• Threatened physical violence against a colleague. The letter warned of the possibility of dismissal for gross misconduct. She was sent the investigation report and appendices, the Disciplinary Policy and the recording.[27]The meeting went ahead on 17.11.2023. Malgorzata Kee (Registered Manager) was the Chair and Claire Whitlow from HR took the notes [minutes at 91 -100]. The allegations were put to the claimant and she was given a full opportunity to put her side of the story.[28]The claimant and her union representative complained about the claimant not being interviewed at the investigatory stage and suggested it was not in line with ACAS good practice [92-93]. Ms Whitlow explained that the respondent’s policy allowed for them to proceed without investigation interviews and there was a short adjournment for the claimant to read the policy. The minutes show the union representative as being combative and speaking over others, such that Ms Kee had to pull her up over it [94].[29]The claimant asked why FL was recording. She and her representative also wanted to know whether it was normal practice to have service users bring messages to staff. They complained that confidentiality had been broken with respect to FL saying “suspended again” which they said indicated was a reference to the claimant’s past suspension.[30]The claimant said she was provoked by FL because of what FL was saying to her. Ms Kee asked her to explain what was intimidating or bullying. The union representative said FL was threatening to suspend the claimant.[31]At the end of Ms Kee’s questions Ms Kee asked if there was anything the claimant or her representative wanted to add. The union representative asked if it was legal to tape people and suggested FL was goading the claimant into Case No: 2302687/2024 saying things. The claimant said she had never given FL permission to record.[32]The meeting was adjourned and Ms Kee obtained further information concerning matters raised by the claimant. Specifically, Ms Kee spoke to FL on 28.11.2003 and recounted the conversation in an email to her of 29.11.2023 [105-106]. Ms Kee asked how FL knew the claimant had been suspended and she replied it was from the resident at the home. Ms Kee asked why she had recorded the conversation with the claimant and FL said the claimant had been very rude to her over the past couple of weeks and on at least 3 occasions had threatened to beat her up. As she had no clear evidence of how the claimant was speaking to her she decided to record the conversation.[33]The disciplinary meeting was re-convened on 7.12.23 to discuss this additional information and answer the claimant’s questions [minutes 100-104]. The claimant was given a full opportunity to respond to all the additional information. Ms Kee’s conversation with FL was related to the claimant and the claimant denied ever having previously spoken to FL [102]. The union representative commented that no-one said FL was the lead [103].[34]Ms Kee considered the evidence and the respondent’s Disciplinary Policy, the latter of which sets out examples of gross misconduct and includes abusive, objectionable or insulting behaviour [69]. The outcome letter of 7.12.2023 [109 -111] upheld the allegations and concluded that the claimant was guilty of gross misconduct which merited the sanction of summary dismissal without notice pay. Full reasons were set out in the letter, and the claimant was advised of her right to appeal [111].[35]The claimant appealed on 11.12.2023 [142]. The appeal letter sets out several grounds of appeal including that the claimant was not given a fair hearing because the meetings were cut short and the decision was predetermined; she was racially discriminated against; she was entrapped by her colleague and the recording did not cover the full conversation; it was against her personal right to be recorded without permission.[36]The claimant was invited to an appeal hearing [112] which was held on 18.12.23. Stephanie Whalley, the Regional Manager, was the Appeal Chair and Claire Whitlow from HR took the minutes [113-122]. All grounds of appeal were discussed and considered. The claimant was given a proper opportunity to participate in full. Ms Whalley asked her questions around each of her grounds of appeal. There was nothing in her answers that suggested any race discrimination.[37]The claimant and her union representative raised the fact that the claimant’s length of service and previous disciplinary record should have been taken into account. Ms Whalley considered this at appeal, noting that the claimant had previously been issued with a final written warning for another matter, which was not taken into account at the disciplinary stage.[38]Ms Whalley upheld the dismissal for the reasons set out in detail in the appeal outcome letter of 21.12.2023 [123 -126]. All matters raised by the claimant were properly addressed in this letter. Case No: 2302687/2024 Holiday Pay[39]The claimant was suspended on 8.6.2023 for a matter distinct from the present claim. The suspension letter requested her to remain available during her working hours in case she was required to attend meetings or the company needed to contact her [75-76].[40]The claimant had annual leave booked for 9 days between 24.7.2023 and 11.8.2023 (3 days per week). She did not query whether she needed to be available during this time.[41]The respondent honoured that annual leave and paid the claimant holiday pay for this period [pay slip at 141]. During this time she was not required to participate in work related activities and she was not contacted by the respondent. The investigation meeting into the allegations did not take place until 4.9.2023. Discussion and Conclusions Unfair Dismissal
Discussion and Conclusions
[42]Regarding the reason for dismissal, the video recording demonstrates that the claimant was abusive to another employee. The evidence shows that the respondent’s genuine belief was that this abuse was gross misconduct. Conduct was the reason for the claimant’s dismissal and this is a potentially fair reason.[43]I turn to whether the respondent had reasonable grounds for their belief.[44]The recording was clear. The claimant made disrespectful and threatening comments against a colleague. Whilst the claimant said she was provoked, there is no evidence of this on the recording. Although she claimed there was an earlier unrecorded conversation when this occurred, there was no convincing evidence of this before the respondent.[45]Whilst the claimant suggested to the respondent that the video was a set up by management and an act of entrapment, the respondent had no evidence to support this. The claimant said she did not know that FL was a lead. Whether or not this is correct, it does not justify the language and tone she used towards her.[46]In short, the claimant provided no reasonable justification for her actions to either the disciplinary chair or the appeal chair.[47]With respect to the process undertaken, the respondent carried out a reasonable investigation. Whilst there were no interviews at this stage, the respondent’s policy allows for this. The ACAS Code of Practice does not require there to be interviews at the investigatory stage. Whilst the claimant suggested the recording was illegal, and the respondent accepted it was not usual practice, once heard, the respondent felt they had a duty to investigate. This was reasonable.[48]The claimant was provided with the evidence and the disciplinary policy prior to the first meeting. She was given a proper opportunity to respond. She was Case No: 2302687/2024 assisted by her union representative, who contributed enthusiastically to the discussions. The meeting was adjourned so that questions she and her representative raised could be investigated, which they were, and she was given a further opportunity to respond. The claimant was informed in a detailed letter of the reasons for her dismissal and of her right of appeal.[49]The claimant used her right of appeal and all of her appeal grounds were considered in full. She was given a proper opportunity to put her case. The appeal letter set out the detailed reasons as to why the dismissal was upheld.[50]The claimant submitted that the disciplinary and appeal meetings were cut short and that the outcomes were predetermined. There is no evidence of this. On the contrary, the disciplinary procedure was thorough and the claimant was given an opportunity to fully participate at each meeting.[51]Overall, the respondent acted in a procedurally fair manner, and the dismissal was within the range of reasonable responses. The respondent acted reasonably in all the circumstances in dismissing the claimant. Accordingly, the complaint of unfair dismissal is not well founded and is dismissed. Wrongful Dismissal[52]The claimant committed an act of gross misconduct. This was a repudiatory breach of the employment contract. The respondent was entitled to dismiss her without notice and without any notice pay.[53]Accordingly, the respondent did not wrongfully dismiss the claimant. Her claim is not well-founded and is dismissed. Direct Race Discrimination[54]There is no evidence whatsoever linking the claimant’s dismissal to her race. She was dismissed for gross misconduct, not because of her race. I accept the respondent’s submission that a white person in the claimant’s role, who behaved in the same way, would also have been dismissed.[55]Accordingly, the claim for direct race discrimination is not well-founded and is dismissed. Holiday Pay[56]The claimant says that she had to stay at home during her period of annual leave to make herself available to the respondent, if required. Therefore, her booked annual leave should be re-characterised as suspension time. She therefore claims 9 days’ pay (variously claimed as 116 hours in her schedule of loss, and 120 hours in her witness statement) for holidays accrued and not taken.[57]Whilst the suspension letter asked the claimant to be available during working hours, her annual leave was not her working hours; it was annual leave. If she was unsure about this, she could have enquired prior to her booked leave being taken. Case No: 2302687/2024[58]The claimant took her booked annual leave and was paid for it. She is not owed any accrued leave. Accordingly, her claim is not well founded and is dismissed. Approved by