Ms A Conteh v Transforming Support (South London) Ltd: 2309587/2024

EMPLOYMENT TRIBUNALS

Case No 2309587/2024

Between

Ms A ContehClaimant

Transforming Support (South London) LtdRespondent

Before

Employment Judge A Beale

Mr E. Lixandru (instructed by Counsel) for claimant

Date 11 June 2026

JUDGMENT

[1]The Claimant’s complaints of unfair dismissal and wrongful dismissal are well founded.

[2]The Respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. It is just and equitable to increase the relevant awards by 10%, under section 207A Trade Union and Labour Relations (Consolidation) Act 1992.

[3]The Claimant's blameworthy conduct contributed to her dismissal. The basic and compensatory awards are reduced by 50% under section 122(2) and section 123(6) Employment Rights Act 1996 respectively.

[4]In respect of the claim for wrongful dismissal the Respondent shall pay to the Claimant the net sum of £2,749.44 (comprising £2,422.60, plus 10% uplift to £2,664.60, for pay due during the notice period, plus pension contributions of £77.12, uplifted by 10% to £84.84).

[5]In respect of the claim for unfair dismissal, the Respondent shall pay the Claimant the following sums (to which the appropriate uplifts/reductions have been applied, as stated):5.1 a basic award of £1,211.30 (following a 50% reduction for Case Number: 2309587/2024 contributory conduct);

5.2 an award in respect of loss of statutory rights of £275 (following a 10% ACAS Code uplift and a 50% reduction for contributory conduct);

5.3 a compensatory award in respect of loss of earnings and pension contributions of £5,774.31 (following a 10% ACAS Code uplift and a 50% reduction for contributory conduct).

[6]The total amount payable to the Claimant under this judgment is therefore the net sum of £10,010.05.

[7]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply to the award made under section 123 ERA 1996. The total monetary award made to the Claimant is £10,010.05 (net). The prescribed element is £5,774.31 (net). The dates of the period to which the prescribed element is attributable are 17 September 2024 – 12 February 2025. The monetary award exceeds the prescribed element by £4,235.74.

REASONS

Judgment having been sent to the parties on 23 June 2026 and written reasons having been requested in accordance with rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided: Introduction

[1]The Claimant was employed by the Respondent as a support worker from 10 January 2019 to 12 August 2024. She was dismissed for gross misconduct, namely that she was found to have falsified attendance records. The Claimant made an early conciliation notification on 4 October 2024, and submitted her claim to the Tribunal on 7 November 2024, contending that she was unfairly and wrongfully dismissed. She claims compensation only. The Respondent denies both claims.

[2]The issues in the claim were set out by EJ Brewer in a case management order dated 2 October 2025. They are reproduced as an appendix to these written reasons.

[3]I had before me a bundle of documents running to 164 pages and witness statements from the dismissing officer, Ms Price, the appeal officer, Mr Richards and the Claimant. All three were cross-examined. Some additional documents were provided during the course of the hearing, including an email from the Metropolitan Police relating to the Claimant’s bail conditions and a number of payslips, Universal Credit documents and a spreadsheet from the Respondent setting out the Claimant’s pay in her final year of employment with the Respondent, which the Claimant’s representative agreed was accurate. I heard submissions from both representatives, to which I refer where appropriate in the body of these written reasons. Credibility

[4]I found the evidence of both of the Respondent’s witnesses largely credible. They accepted certain flaws in the process followed in relation to the Claimant’s dismissal. Ms Price did not seem to have an independent recollection of the hearing, understandably given the lapse of time, and relied heavily on her witness statement at points. Mr Richards appeared to have a greater independent recollection of events. I have commented on specific aspects of their evidence in the body of my written reasons below.

[5]The Claimant’s evidence was less easy to follow than the Respondent’s. Sometimes she seemed to be answering a different question from the one asked. She also introduced new information which had not been brought up at her disciplinary or appeal hearings. Her evidence on some points (for example, the number of times she had signed in at Temple Road) was inconsistent. However, overall, I formed the view that the Claimant was trying to assist the Tribunal, although her recollection of certain points was unclear or incomplete. Again, I have commented on specific aspects of the evidence in the course of my written reasons. Findings of Fact

[6]The Claimant was employed by the Respondent as a support worker from 10 January 2019. At the relevant time, she worked primarily at the Respondent’s service in St Julian’s Farm Road in West Norwood. This is a supported living facility for service users with learning disabilities. Each service user has a tenancy agreement for an individual apartment. Some of the service users lack capacity and have Court of Protection orders in place.

[7]The Respondent has several other services in the South, including a service on Temple Road in Croydon.

[8]At the time of the relevant events, in 2024, the Claimant had a clean disciplinary record and had received no warnings. The Claimant was a Senior Support Worker.

[9]In the summer of 2024, an issue arose around alleged mismanagement of a service user’s money. I shall refer to this service user as D. There was a concern that withdrawals were being made from D’s account, but were not being accounted for. The Claimant attended an investigation meeting about this issue on 6 June 2024, but I do not have the notes of this meeting.

[10]On 17 July 2024, the Claimant’s manager, Aisha Ajia, was notified that the Claimant appeared to have been clocking in and out at the Respondent’s Temple Road site and then completing her shifts at St Julian’s Farm Road. The Claimant was suspended from work on the same date. Her letter of suspension stated that it was to allow an investigation following allegations of money mismanagement and falsifying of attendance records.

[11]On 18 July 2024, the Claimant attended an investigation meeting with Beata Kozlowska, Quality Assurance Manager. The Claimant was questioned about a number of issues, including the attendance of another staff member at her place of work on 12 May, issues relating to the alleged mismanagement of funds, and clocking in at Temple Road.

[12]On the latter point, the Claimant explained that she had been experiencing problems with signing in at St Julian’s Farm Road. She said that sometimes the tablet she used to sign in would show that she had signed in and/or that her photograph had been taken, but when she checked the system on her phone, she would not appear to have signed in. She said that as a result of this, she would sometimes go to Temple Road to sign in or out. The Claimant said she had reported to her manager that the tablet was not taking pictures, and that she could not see the pictures on her phone, and had sent her photographs showing this. She agreed that she had not told her manager that she was signing in and out at Temple Road. The Claimant said her manager told her “anytime the tablet do like that, if you snap you one, you put it on and off, if it doesn’t work, just leave it.”. However, she said that in practice her manager had told her that she wanted to see her face on the login, and there were problems and tension because the tablet was not functioning properly on sign-in.

[13]The Claimant was asked about a suggestion that she had said she was coming into Temple Road in the morning to do a spot check; she said she had not said this and suggested that Ms Kozlowska spoke to two staff members called Sheila and Yasmin to confirm. She said she had told them why she was signing in and out at Temple Road when she was passing.

[14]The Claimant was asked whether she recognised that if she was not booked somewhere on shift, she should not be there, on the basis that she was not insured and put herself and others at risk. The Claimant said she did not, as in other workplaces she had been able to sign in at any part of the service. She was asked if she recognised this was a fraud and falsifying the records; the Claimant said she did not know that.

[15]Following the meeting, Ms Kozlowska produced an investigation report, in which she reported her findings as follows: “There is evidence that AC was clocking in and out from Temple Rd, whilst she was booked for shifts at St Julian's. This evidence is on Rota cloud. There is a contradictory statement re 12th May – when Eman came on shift when she was not booked for this shift and stayed 6hrs. AC was involved in money withdrawals, but there is no proof that she was the one who was withdrawing money and not entering them on finance forms. This is being handed over to the police to investigate further.”

[16]She recommended that the Claimant be called to a disciplinary meeting and that some other members of staff were to be questioned about the money withdrawal. She also suggested that the police be asked to request CCTV footage of the post office where the withdrawals took place.

[17]Ms Kozlowska noted that there was a need for referral to DBS for falsification records and unaccounted money withdrawals and there had also been a notification to the CQC.

[18]On 26 July 2024, the Claimant was invited to a disciplinary hearing, to take place on 1 August 2024. The allegations were:(1) allegations of money mismanagement on behalf of people the Respondent supports and

(2) falsifying attendance records. The Claimant was informed that if the allegations were substantiated, the Respondent would regard them as gross misconduct, and her employment may be terminated. The Claimant was provided with the investigation minutes dated 18 July 2024 and the investigation report. She was informed of her right to be accompanied by a fellow employee or trade union official.

[19]On the same date, Sally Price, Regional Director North, who was due to conduct the Claimant’s disciplinary hearing, interviewed two other employees in relation to the allegations of money mismanagement.

[20]The Claimant’s disciplinary hearing in fact took place on 9 August via Teams. The Claimant was unable to use the video function so the hearing was audio only.

[21]Ms Price asked the Claimant about the falsifying records allegation. The Claimant explained that although her address was in Croydon, she was spending time with her husband in the Abbeywood area, which was further away from her workplace. She agreed that, on 17 July 2024, she had logged on at Temple Road at 7:10 a.m. and had only arrived at St Julian’s at 08:56 for a shift that was due to start at 08:30. She said this was because of road works and traffic. She said she was logging in at Temple Road “because when I log in at St Julians they don’t see my picture, I get into arguments with Aisha regarding this, this started in July”. She said because of the incident with Aisha, she wanted them to see her face when she clocked in. The Claimant said that her manager had told her to take a photo of the whole screen when this happened. The Claimant said she had logged in to Temple Road from June around 4 – 5 times, and agreed that her manager wasn’t aware. She said she had explained why she was doing this to four employees at Temple Road, who she named.

[22]Ms Price said the Claimant was being paid from when she clocked in but the Claimant said she was not; she was paid from 8:30.

[23]The Claimant told Ms Price she was on 1:1 support for client S that day, and when asked who was with her from 08:30 – 08:56 said she was lying down on her bed.

[24]When it was put to the Claimant that this was fraudulent behaviour, she again said she did not know this, as when she worked in a different company she could clock in to different services. The Claimant said that the issue with the tablet was happening to others as well, and named an employee, but said they did not go to Temple Road. When asked whether she was the only person doing this at Temple Road, she said she did not know; Ms Price said the Claimant was the only person as she had checked the records.

[25]The remainder of the meeting concerned the allegations of money mismanagement.

[26]On 12 August 2024, Ms Price wrote to the Claimant with the outcome of the disciplinary hearing. In relation to the allegations of money mismanagement, she found that the Claimant was no more likely than anyone else in the service who had access to the card cabinet to have made the withdrawals. This allegation was not found to be substantiated. In relation to falsifying attendance records, Ms Price found the Claimant’s explanations to be unsatisfactory, because she had been paid from the time she clocked in, almost two hours before arriving for her shift, without approval. No other members of staff were doing this. She noted a person whom the Respondent supports had been left unattended due to the Claimant arriving late, but the Claimant was still paid for this time and additional time prior to this. Ms Price found this allegation to be substantiated, and that the Claimant had “deliberately claimed for additional time that you did not work”. She concluded that this had resulted in a fundamental breach of trust and confidence and considered that the disciplinary procedure stated that misconduct of this nature warranted summary dismissal. She did not consider she was able to apply a lesser sanction for the reasons already given.

[27]The Claimant was summarily dismissed. She was informed of her right to appeal.

[28]Ms Price’s oral evidence was that the dismissal letter accurately reflected her thought processes at the time, and the principal reason for her decision was that the Claimant had deliberately claimed for periods of time after clocking in that she had not worked.

[29]The Claimant’s solicitor submitted an appeal against dismissal on her behalf on 19 August 2024. The appeal letter focused primarily on the allegations of money mismanagement, albeit these had not been upheld. In relation to falsifying attendance records, the appeal letter noted that the Claimant had complained about the issue with the tablet to her manager and that dismissal in the circumstances was overly harsh. The Claimant referred to her long good service without disciplinary warnings.

[30]The Claimant was invited to an appeal meeting, to take place on 27 August 2024, on 22 August 2024. The meeting was again to be by MS Teams. She was informed of her right to be accompanied.

[31]The appeal hearing took place as planned. I understand the hearing was in fact by telephone. The first part of the meeting was spent clarifying the Claimant’s appeal as the appeal letter focused on the money mismanagement allegations, which had not been found proven. A relatively small amount of time was spent on the allegations which had resulted in dismissal.

[32]In relation to the falsifying attendance allegations, the Claimant agreed that she had signed in at Temple Road and had turned up later to St Julian’s; however, she explained she thought she should have a warning letter prior to being dismissed. She accepted the outcome of the investigation but felt the decision was too harsh. She corrected Mr Richards’ assumption that she had been paid from the time she clocked in; she said she had been paid from the start of her shift.

[33]On further questioning, the Claimant explained that she had told her manager about the problems checking in at St Julian’s and said that several people had let the building and noticed that the system was not showing that they had clocked in. She said she had sent her manager records and photos and could send them to Mr Richards.

[34]The Claimant agreed she had arrived at 08:56 on 17 July and said she had already explained she was delayed by traffic. When it was raised with her that people were left unattended, the Claimant challenged this, saying “we work in groups, medication starts at 09:00 and I always text my colleagues if I am going to be late”. Mr Richards did not ask anything further about this answer.

[35]The Claimant did send Mr Richards some photographs of the tablet. These appear to show the Claimant being logged in and logged out. In oral evidence, the Claimant explained that the issue was with the tablet login linking up to the system overall, as it was not showing on her phone.

[36]Mr Richards conducted some further investigations into the issue of whether the Claimant would have been paid from the time she clocked in on the days she clocked in at Temple Road prior to reaching his conclusions. He did not conduct any further investigations into the issue of whether the Claimant had notified anyone that she would be late on 17 July, or as to the usual procedures at St Julian’s Farm Road for such notification.

[37]On 29 August 2024, Mr Richards wrote to the Claimant with the outcome of the appeal. He explained the outcome of his further investigations, which was that the Claimant would have been paid from the shift start date rather than the actual clock in time at Temple Road, as it was not within 10 minutes of the start and end of the scheduled shift. He also advised that if there was no clock in the scheduled shift would be paid in full. Where there were issues with automatic check in devices, the manager could insert and override the check in time manually.

[38]On the basis of these enquiries, Mr Richards did not accept the Claimant’s explanation that the early check in Temple Road was a legitimate exercise and was not financially motivated. He went on to note that the Claimant arrived almost 30 mins after her scheduled shift, but failed to notify her manager that she checked in earlier elsewhere, or that she was late, and did not determine that the electronic device was not functioning on the day in question. He found she had various different options to check in on 17 July, and as a result of failing to notify of her alternative clock in and late arrival, was paid for time when she was not present.

[39]In relation to the question of whether the dismissal was overly harsh, he concluded that the intentional misrepresentation of the clock in time, which resulted in additional payments being made to which the Claimant was not entitled, alongside the representational damage which could result from a service being understaffed in breach of regulatory requirements, met the threshold for gross misconduct and immediate dismissal. Mr Richards noted that the Claimant had said she did not know of the existence of the staff handbook, but said it was available on the company’s electronic systems and in any event, it was not relevant.

[40]In his witness statement, Mr Richards explained that in considering whether a sanction short of dismissal would have sufficed, he noted that the conduct occurred on multiple documented occasions; the Claimant had failed to inform her line manager of the temple road clock ins; the conduct concealed late arrival in a regulated care setting where service users on 1:1 support depended on staff being in the rostered location at the rostered time; and trust and confidence had been undermined to a degree that could not be remediated by a warning. Mr Richards also noted that whilst the financial gain to the Claimant on any given occasion was small in absolute terms, the Respondent operated on a small budget, but he did not regard financial gain as the principal materiality of the conduct - that was the concealment of late arrival in a regulated care setting and the consequent undermining of the integrity of attendance recording.

[41]In oral evidence, Mr Richards said that if it had just been an issue around loss of money (being paid for working 26 minutes more than had in fact been worked) he did not think that would in itself be gross misconduct, but with the added concerns about attendance on 1:1 support and reliability, that made it gross misconduct. He said (in reference to the sentence in his appeal letter regarding the repeated nature of the conduct) that he believed the Claimant had been late on other occasions, and that she had admitted this.

[42]When asked why he considered the conduct to be gross misconduct, Mr Richards said he could not understand why the Claimant would clock in at Temple Road and did not think her explanations were satisfactory, so he did not consider her reliable in that respect. Reliability was very important as the Claimant was working with service users with complex needs requiring 1:1 support. He had very much in mind a recent coroner’s inquest where someone had died in the service as a result of a 12 (or 13) minute medication delay, and with that in the forefront of his mind, he felt the risk to individuals around the falsification of attendance records was too high to allow a final written warning.

[43]It is common ground that the Claimant was arrested on 12 August 2024 in connection with the allegations of money mismanagement. She was bailed, and part of her bail conditions were to inform the Officer in Charge of any new employment, and not to work in any care environment including with vulnerable adults and children. On 4 November 2024, the Claimant was informed she no longer had any bail conditions but was still under investigation. The investigation still has not concluded. The Law Unfair Dismissal

[44]Pursuant to section 98 Employment Rights Act (‘ERA’) 1996, it is for the employer to show the reason for dismissal, and that it is a potentially fair reason within the meaning of section 98. A reason relating to the conduct of an employee is a fair reason within section 98(2)(b) of the Act.

[45]If a fair reason can be shown, section 98(4) ERA 1996 provides that the Tribunal must consider whether the dismissal was fair or unfair, which will depend on whether in the circumstances (including the size and administrative resources of the employer), the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.

[46]Where the reason for the dismissal is conduct, as is alleged in the present case, it is established law that the guidelines contained in British Home Stores Ltd v Burchell

[1980] ICR 303

apply. An employer must(i) establish the fact of its belief in the employee’s misconduct, that the employer did believe it. There must also

(ii) be reasonable grounds to sustain that belief,

(iii) having carried out such investigation into the matter as was reasonable in all the circumstances of the case. A conclusion reached by the employer on a balance of probabilities is enough. Point (i) goes to the employer’s reason for dismissal (where the burden of proof is on the Respondent) and points (ii) and (iii) go to the general test of fairness at section 98(4) (where there is a neutral burden of proof).

[47]The Tribunal must further determine whether the sanction imposed by the employer fell within the range of reasonable responses.

[48]At the stages set out at points (ii) and (iii) in paragraph 46 above, as well as paragraph 47 above, the Tribunal must consider whether the employer’s conduct fell within the range of reasonable responses open to it (Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

; and see Sainsbury’s Supermarkets Ltd v Hitt

[2003] ICR 111

, where it is confirmed that this principle also applies to the investigation carried out and procedure adopted by the employer). It is not open to the Tribunal to substitute its view for that of the employer.

[49]In Tesco Stores Ltd v S,

UKEATS/0040/19/SS

, Lord Fairley held at paragraph 42 that the need to carry out a reasonable investigation applied equally to issues bearing upon the sanction for proven or admitted misconduct. He continued: “The degree of investigation required in relation to potential mitigation is inevitably fact sensitive and will vary from case to case. In considering whether a particular line of inquiry into mitigation was so important that failure to undertake it would take the investigation outside the Sainsbury's band, Tribunals require to consider inter alia the degree of relevance of the inquiry to the issue of sanction, whether or not the employee advanced any evidential basis which merited further inquiry, and the extent to which resultant further investigation could have revealed information favourable to the employee.”

[50]In Taylor v OCS Group Ltd

[1996] ICR 1602

, the Court of Appeal emphasised that, where a Tribunal had to consider whether an appeal had cured an earlier defect in the dismissal process, the question did not turn on whether the appeal should be classified as a ‘review’ or a ‘rehearing’. The Court held, at paragraph 47: “In [applying the statutory test], they should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.” Polkey/contributory fault

[51]In Software 2000 Ltd v Andrews

[2007] ICR 825

, the EAT set out the following summary of the legal principles to be applied in considering whether dismissal would or might have occurred in any event:

[54]The following principles emerge from these cases.(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)

(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

(5) An appellate court must be wary about interfering with the tribunal's assessment that the exercise is too speculative. However, it must interfere if the tribunal has not directed itself properly and has taken too narrow a view of its role.

(6) ...It follows that even if a tribunal considers that some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely. 52. In London Ambulance Service NHS Trust v Small

[2009] IRLR 563

, the Court of Appeal highlighted the danger of making factual findings about a claimant’s conduct at the stage of determining whether or not a dismissal was unfair, when such findings are relevant not to that issue, but only to the issue of whether there was contributory conduct if the dismissal is found to have been unfair. Separate and sequential findings of fact on discrete issues may help to avoid errors of law such as substitution, even if they entail some duplication. 53. In considering contributory fault under s. 122(2) of the Employment Rights Act 1996 (dealing with the basic award), the Tribunal must consider whether it is just and equitable to reduce the basic award. Under s. 123(6) ERA 1996, the Tribunal must consider both whether the conduct in question caused or contributed to the dismissal to any extent, and if so, whether it is just and equitable to reduce the compensatory award. In Steen v ASP Packaging Ltd

[2014] ICR 56

, the EAT held that both sections required the Tribunal (1) to identify the conduct which is said to give rise to potential contributory fault; and (2) having done so, ask whether that conduct is blameworthy. For the purposes of s. 123(6), the Tribunal must also ask if the conduct which it has identified and considers blameworthy caused or contributed to the dismissal to any extent. Finally, under both sections, the Tribunal must consider the extent to which it is just and equitable to reduce both the basic and the compensatory award. Conclusions Unfair Dismissal The Reason for the Dismissal 54. Dealing first with the question of whether the Claimant was unfairly dismissed, the first question is, what was the reason for dismissal. The Respondent’s case is that the Claimant was dismissed for a reason relating to conduct, namely falsifying attendance records. I accept that evidence. In her witness statement, the Claimant argued that she was dismissed for the money mismanagement allegations, even though these were allegedly dropped. The Claimant did not pursue this argument during the hearing, and the Respondent’s witnesses were not cross-examined on that basis. I find that Ms Price and Mr Richards genuinely did not take these allegations into account in dismissing the Claimant. Genuine Belief

[55]I must then consider whether the Respondent had a genuine belief in the conduct found to have taken place. The Respondent did have a genuine belief that the Claimant had falsified records because she had admitted doing so; she agreed she had clocked in at Temple Road when working at St Julian’s and that she had done so without informing her manager, on 4 – 5 occasions. The Claimant also admitted that on 17 July 2024, she had attended St Julian’s at 08:56, 26 minutes after her shift started, having clocked in at Temple Road at 07:10. Reasonable Grounds and Reasonable Investigation

[56]I deal with the issues of whether the Respondent had reasonable grounds for reaching the conclusions set out above, and whether they were reached after the Respondent had carried out as much investigation as was reasonable in the circumstances, together below.

[57]As I have noted above, it is clear from the authorities that the requirement to carry out a reasonable investigation (subject, as always, to the range of reasonable responses test) applies both to investigation of the misconduct itself and to investigation of any mitigation advanced. As these issues overlap, I have dealt with both below.

[58]I do consider that a reasonable investigation was carried out into the question of whether the Claimant had, as alleged, clocked in at Temple Road. The Respondent checked its systems, which demonstrated that she had clocked in at Temple Road on around 6 occasions when her shift was at St Julian’s. The Respondent also had evidence that C had arrived late to her shift at St Julian’s on 17 July 2024, having clocked in at Temple Road early, which the Claimant freely admitted.

[59]As I have found above, the dismissal by Ms Price was on the basis that the Claimant had been paid for all the hours after she had clocked in at Temple Road on these several occasions. Ms Price reached that conclusion despite the Claimant’s own statement that she had only been paid from the start of her shift. Ms Price did not investigate that statement from the Claimant, which was in fact accurate. She did not have reasonable grounds for this aspect of her conclusions, which led her to dismiss the Claimant, and those conclusions were not reached following a reasonable investigation. Ms Price’s decision to dismiss the Claimant was therefore unfair.

[60]That is not the end of the matter, however, because, in accordance with Taylor v OCS, I must consider whether the overall investigation and process was fair, including any appeal.

[61]At the appeal stage, Mr Richards rectified the earlier error, in that he investigated the Claimant’s comment that she had been paid only from the beginning of her shift, and found that she was correct.

[62]It was clear from Mr Richards’ oral evidence that this information shifted his focus in relation to the Claimant’s misconduct, from the financial gain which had been at the heart of Ms Price’s decision, to the regulatory and safety aspects of the Claimant’s conduct. As I have recorded above, Mr Richards did not consider that financial gain alone was enough to merit a finding of gross misconduct; his focus was on the attendance and reliability issues which impacted on the Respondent’s reputation and the safety of service users.

[63]Given that shift of focus, I consider that, in order to carry out a reasonable investigation, Mr Richards needed thoroughly to explore those issues with the Claimant and investigate any points arising from the appeal. I find that he did not do that.

[64]In relation to the issue of staff cover, ratios and safety, the Claimant told Mr Richards that, at St Julian’s, the staff operated as a group and that she always contacted the service to say that she would be late. Mr Richards found that she had not contacted her manager (although his enquiries into this point are not recorded anywhere), but he did not explore with the Claimant what measures she had taken to ensure there was adequate staffing and cover for her, nor did he check with staff at the service what the Claimant had done, and whether the procedure she had followed was the standard procedure followed by everyone.

[65]It was clear from his oral evidence that Mr Richards’ decision was heavily influenced by a recent safety event where there had been a delay in giving an individual medication and they had sadly died. It was clear he felt that he could not take the risk of that happening again and he considered continuing to employ the Claimant would give rise to that risk. However, I do not consider it was reasonable for him to reach that view without enquiring into what in fact happened on the day that the Claimant had attended late.

[66]There were also further gaps in the investigation, namely:(a) Mr Richards’ evidence was that he believed the Claimant had admitted to being late on several occasions. There is no evidence of that in the documents before the Tribunal, and there appears to have been no investigation of whether the Claimant was late on any occasion other than 17 July. I consider that Mr Richards’ perception of multiple late arrivals influenced his conclusion that the Claimant could not be relied upon, and thus that there was a breakdown in trust and confidence.

(b) The Claimant acknowledged that she had not informed her manager that she was clocking in at Temple Road, but said she had been clear with staff there as to the reasons why she was doing so. As Ms Price and Mr Richards doubted those reasons, in my view, they should have spoken to the staff, who the Claimant named in the disciplinary meeting, to see whether they corroborated her account.

[67]For all of the above reasons, I consider that Ms Price and Mr Richards did not carry out a reasonable investigation into the misconduct and the Claimant’s explanations and did not have reasonable grounds for their belief that the Claimant had committed the full extent of the misconduct they alleged. Fair Procedure

[68]The Claimant has raised various points in relation to the fairness of the procedure during the course of these proceedings. Some of those were not pursued in the hearing before me. For completeness, the Claimant previously complained that she was not allowed to have a representative; the Claimant was informed of this right before the disciplinary and appeal hearing, but wished to bring someone other than a fellow employee or union official which was not permitted by the Respondent. That decision fell within the range of range of reasonable responses.

[69]In final submissions, the Claimant’s counsel argued that the procedure was unfair because some investigations were undertaken by Ms Price rather than Ms Kozlowska (namely interviewing other employees re: the money matters). Although ideally this would not have happened, given that those allegations against the Claimant were not found proven, I find that this made no difference to the outcome and was not such as to render the process unfair.

[70]The Claimant’s counsel also argued that having the hearings via phone made it difficult for the Claimant to present her case and show her evidence. This was not a point put to the Respondent’s witnesses. The Claimant did not at any point in the process – or later – complain that she had not been able to present her case or her evidence. She was able to supply photographs subsequently. I find that the Claimant was not put at any disadvantage by the manner of the hearings, and the process was fair.

[71]Finally, the Claimant’s counsel argued that she was not warned that dismissal could be the outcome. This is not correct. The Claimant was told that she could be dismissed for the allegations in the letter inviting her to her disciplinary hearing. Sanction

[72]I have already found that the dismissal was unfair because there was a failure to carry out a reasonable investigation, meaning the dismissing and appeal officers did not hold the belief they had in the misconduct committed by the Claimant on reasonable grounds.

[73]I have found that there were, in the absence of a proper investigation, no reasonable grounds for the conclusions that the Claimant was paid in full for the clocked in hours (dismissal only); that she was late on multiple occasions, or that her actions on 17 July 2024 resulted in a service user being left without support and opened the Respondent up to allegations of understaffing.

[74]Mr Richards made clear in his oral evidence that the financial gain for 26 minutes’ work alone would not have been sufficient to amount to gross misconduct and that his focus was on attendance, reliability, the Respondent’s regulatory position and service user safety.

[75]I have had regard to the fact that the Respondent’s disciplinary policy classifies persistent lateness as misconduct. It further states that, where one of the misconduct rules has been broken and it is shown to be due to extreme carelessness or has a serious or substantial effect upon the Respondent’s operation or reputation, employees may be issued with a final written warning in the first instance. Examples of gross misconduct include theft or fraud, breach of health and safety rules that endangers the lives of or may cause serious injury to employees or any other person.

[76]I consider that, without further investigation into the points I have outlined above, Mr Richards’ conclusion that the Claimant was unreliable and that it was too great a risk to continue to employ her did not fall within the range of reasonable responses. On the evidence before Mr Richards, the tenor of the disciplinary policy points away from dismissal and towards a lesser sanction. It may well have been the case, had Ms Price or Mr Richards conducted the further investigations referred to above, that Mr Richards’ assumptions about the safety situation and/or the repeated nature of the Claimant’s actions would have been borne out, in which case dismissal probably would have fallen within the range of reasonable responses. But in the absence of that investigation, it did not. Polkey and contributory fault

[77]Mr Katz submitted that, should I make a finding of unfair dismissal, I should also make a finding of contributory fault at 50%, to be applied to both the basic and the compensatory award. Mr Katz did not submit that any reduction should be made on the basis of Polkey.

[78]As Polkey reductions were included in the List of Issues, I have given consideration to whether such a reduction should nonetheless be made. Having regard to Software 2000 v Andrews, I have come to the conclusion that this is one of those cases where the alternative outcome, had a proper investigation been conducted, is so riddled with uncertainty that I cannot speculate as to what it would have been. There are significant gaps in the evidence, and Mr Katz has rightly not sought to reconstruct events had those enquiries been made.

[79]Moving to contributory fault, I first have to consider whether the Claimant engaged in conduct which was culpable or blameworthy. I find that she did. The Claimant clocked in at a different service from the one she was working at, several miles away. She did not tell her manager she was doing so. Although I accept the Claimant’s consistent position throughout that she did not see this as fraud, or as endangering patient safety, she knew it was not what she should be doing. I accept that there were difficulties with the tablet at St Julian’s, but the appropriate course in response to this was to raise it with her manager and if (as I accept was the case) this did not result in resolution and caused difficulties for the Claimant, to raise it higher in the service. It was not a sensible reaction for the Claimant to take matters into her own hands and clock in elsewhere, especially without informing her manager that she was doing so.

[80]Although I do not accept that the Claimant’s actions put patients at risk, as I accept that she informed members of staff at the service when she was going to be late, I do accept that her actions meant records within a regulated service were (at least for a short time) inaccurate.

[81]I also find that the Claimant’s conduct contributed to her dismissal. The Claimant was dismissed for falsifying records. Both Ms Price and then Mr Richards took into account aggravating factors which were either factually incorrect or not properly investigated, but the core conduct for which the Claimant was dismissed did occur.

[82]Overall, I consider it is just and equitable to reduce both the basic and the compensatory awards by the amount proposed by Mr Katz; namely 50%. I consider that both parties were roughly equally to blame for the dismissal. ACAS uplift

[83]I was asked by the Claimant to apply an uplift for breach of the ACAS Code of Practice. I do consider there was a breach of the Code in that there was a failure properly to investigate the disciplinary matters, in accordance with paragraph 5 of the Code. Whilst there was a failure to do this, which I have found was unreasonable, it was not the most egregious breach. I find that an uplift of 10% is appropriate. Given the relevance of that breach to both the unfair and wrongful dismissal claims, I find that the uplift should be applied in respect of both matters (see Brown v Veolia ES). Wrongful Dismissal

[84]As I have explained above, whilst I find that the Claimant did clock in at Temple Road on several occasions without informing her manager, and on one occasion was late, I do not find that her conduct put patients at risk, as I find she informed the service that she was going to be late. I do not find that the Claimant acted for the purposes of financial gain or that she was fraudulent. For the avoidance of doubt, I cannot find, on the balance of probabilities, that the Claimant was involved in financial mismanagement in relation to patient D, as there is insufficient evidence to support such a finding.

[85]In the circumstances, I do not find that the Claimant committed an act of gross misconduct. She was therefore wrongfully dismissed, and she is entitled to her notice pay. Remedy

[86]The Claimant seeks compensation only.

[87]I deal first with wrongful dismissal, as no reduction for contributory fault applies to that award. The parties have agreed the sums paid to the Claimant over the year prior to her dismissal. As the Claimant's pay varied significantly over this period, I have used the 11 months prior to August 2024 (when she did not work a full month) to determine her weekly pay. Over this period of 47.71 weeks, she earned £23,116.35 net, which equals £484.52 per week on average.

[88]At the time of her dismissal, the Claimant had been employed for five full years and her statutory notice entitlement was therefore £2,422.60. Applying the 10% uplift produces a total of £2,664.60. Pension contributions also fall to be added to this: the Claimant’s gross weekly pay was £616.99 (using a similar calculation) and pension contributions were 2.5% of pay, so £15.42 per week. The loss is 5 x £15.42 - £77.12, uplifted by 10% to £84.84.

[89]The total award for wrongful dismissal is therefore £2,749.44 (net).

[90]The Claimant’s basic award, based on 5 years’ service at a time when she was under 40 years of age is £484.52 x 5 = £2,422.60. That sum falls to be halved due to my findings on contributory conduct: £1,211.30.

[91]I make an award of £500 in respect of loss of statutory rights. I increase that by 10%, applying the ACAS uplift, which produces a total of £550 and then reduce to half for contributory conduct, leaving £275.

[92]In relation to the compensatory award, the Claimant’s evidence was that she had not been able to find new employment because, following her dismissal, she was told by the Police that she should not work with vulnerable adults or children. It is clear that this was the case until 22 October 2024, when the Claimant’s bail conditions to this effect were lifted. I accept the evidence from the Metropolitan police (in the form of an email supplied by the Respondent) that the Claimant was made aware of this on 4 November 2024. The Claimant said that she was not aware of this, but I think it is likely that she was, because her suspension from her second job with Active Care was lifted at some point in early 2025. The Claimant said that she had continued to inform potential employers of the police investigation to date, and that she had been told to do this by the police. There is no evidence to that effect – indeed the email from the Metropolitan Police suggests the opposite, and I find that this was not the case.

[93]The Claimant said she had applied for many jobs and attended many interviews. Her evidence was that, in the absence of the police investigation she would have been able to obtain new employment within a month.

[94]I accept that in view of the Claimant’s bail conditions it would have been extremely difficult for her to obtain similarly paying employment up to 4 November 2024. However, thereafter, I do not consider that the Claimant acted reasonably in informing all prospective employers of the police investigation. The Claimant was aware that Active Care Group were willing to continue to employ her and in fact she increased her hours with them as time went on. It is surprising that this was possible given the restrictions the Claimant has said were placed upon her by the police.

[95]Taking the Claimant’s evidence into consideration, I conclude that, had she acted reasonably to mitigate her loss, the Claimant could have found employment paying her at a similar level to that received from the Respondent within 6 months of her dismissal, so by 12 February 2025. I appreciate that it is likely to have taken a little time to make applications following the dropping of the bail conditions and to start work.

[96]I have already made an award for the notice period of 5 weeks. The compensatory award in respect of loss of earnings is therefore in respect of 21 weeks. That would total £10,174.92. Increased by 10% that is £11,192.41; divided by 2, £5,596.21.

[97]The Claimant has also suffered pension loss. Based on her payslips, employer’s pension contributions were 2.5% of her pay. The Claimant’s weekly pension was £15.42 x 21 = £323.82. An additional 10% for the ACAS uplift takes the sum to £356.02; then division by two for contributory fault produces £178.10. The compensatory award for loss of earnings is therefore £5774.31.

[98]The total amount payable under this judgment is therefore the net sum of £10,010.05.

[99]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply to the award made under section 123 ERA 1996. The total monetary award made to the Claimant is £10,010.05 (net). The prescribed element is £5,774.31 (net). The dates of the period to which the prescribed element is attributable are 17 September 2024 – 12 February 2025. The monetary award exceeds the prescribed element by £4,235.74. Employment Judge A. Beale KC Date: 14 July 2026 APPENDIX 1: LIST OF ISSUES

[1]Unfair dismissal1.1 What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.

1.2 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:1.2.1 there were reasonable grounds for that belief,

1.2.2 at the time the belief was formed the respondent had carried out a reasonable investigation,

1.2.3 the respondent otherwise acted in a procedurally fair manner,

1.2.4 dismissal was within the range of reasonable responses.

[2]Remedy for unfair dismissal2.1 Does the claimant wish to be reinstated to their previous employment?

2.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

2.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

2.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

2.5 What should the terms of the re-engagement order be?

2.6 If there is a compensatory award, how much should it be? The Tribunal will decide:2.6.1 What financial losses has the dismissal caused the claimant?

2.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

2.6.3 If not, for what period of loss should the claimant be compensated?

2.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.6.5 If so, should the claimant’s compensation be reduced? By how much?

2.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.6.7 Did the respondent or the claimant unreasonably fail to comply with it?

2.6.8 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

2.6.9 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?

2.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

2.6.11 Does a statutory cap on compensation apply?

2.7 What basic award is payable to the claimant, if any?

2.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

[3]Wrongful dismissal / Notice pay3.1 What was the claimant’s notice period?

3.2 Was the claimant paid for that notice period?

3.3 If not, was the claimant guilty of gross misconduct?