Mrs B Cullinan v National Car Parks Ltd: 2404980/2019
EMPLOYMENT TRIBUNALS
Case No 2404980/2019
Between
Mrs B CullinanClaimantNational Car Parks LtdRespondent
Before
Employment Judge McDonaldIn person for claimantMr Clayton (instructed by Solicitor) for respondentDate 4 November 2019
JUDGMENT
The claimant’s claim of unfair dismissal fails and is dismissed.
REASONS
[1]The claimant brings a complaint of unfair dismissal. There is no dispute that she was dismissed on 12 April 2019. The respondent says that dismissal was for gross misconduct. Specifically, it says the claimant failed to follow its internal procedures relating to refunds to customers.[2]The claimant represented herself and the respondent was represented by Mr Clayton. I heard evidence from the claimant and, for the respondent, from Mr William Fadden (Service Delivery Manager) and Mr James Graham (at the relevant time Business Manager for the North West). Each witness had provided a written statement and was asked cross examination questions by the claimant and Mr Clayton respectively. I also asked each witness some questions. Because the claimant was representing herself and not familiar with the way tribunals work I explained that she needed to challenge any part of the respondent’s witnesses’ evidence with which she disagreed. I explained that otherwise the tribunal would take that evidence as being unchallenged.[3]There was an agreed bundle of documents consisting of 250 pages (“the bundle”). During the hearing the claimant also produced a schedule of loss which was added to the bundle at page 251. The page numbers referred to in this judgment when talking about documents are to page numbers in the bundle.[4]At the end of the evidence I heard oral submissions from Mr Clayton and from the claimant. I then reserved my decision. I have not set out the submissions I heard in full but have referred to them at relevant points in this judgment.[5]On 25 September 2019, two days after the hearing, the tribunal received an email from the claimant. It set out questions she wished she had put to the respondent’s witnesses in cross examination during the hearing. Although I sympathise with the difficulties faced by the claimant as a litigant in person conducting cross examination for the first time, I have not taken the contents of that email into account because it was in effect an attempt to re-open the evidence part of the hearing which had closed on the 23 September. The issues in the case[6]Before I started hearing the evidence I discussed with the claimant and Mr Clayton the issues I needed to decide. In essence, the claimant’s case was that the reason given by the respondent was not the real reason for her dismissal. She claimed that during her employment with the respondent she had been subjected to bullying consisting in particular of being picked up for minor faults.[7]After discussion with the parties it was agreed that the issues for the tribunal were:a. Whether the reason given by the respondent for the dismissal, i.e. (mis)conduct, was the real reason for the dismissalb. Whether the respondent followed a fair procedure in reaching the decision to dismiss.c. Whether the respondent acted fairly in treating the misconduct as justifying dismissal. The relevant law Unfair dismissal
The relevant law
[8]S.94 Employment Rights Act 1996 (“ERA”) gives an employee a right not to be unfairly dismissed by her employer. To qualify for that right an employee usually needs two years’ continuous service, which the claimant has in this case.[9]In determining whether a dismissal is unfair, it is for the employer to show that the reason (or if more than one the principal reason) for dismissal is one of the potentially fair reasons set out in s.98(2) of ERA or some other substantial reason justifying dismissal. In this case the respondent says the reason for dismissal was the claimant’s (mis)conduct which s.98(2)(b) says is a potentially for reason for dismissal. The claimant disputes that that is the real reason for dismissal The burden of proving the reason or principal reason for dismissal[10]The Court of Appeal set out the position when there is a dispute about the real reason for a dismissal in Kuzel v Roche [2008] EWCA Civ 380[2008] IRLR 530:a. It is necessary for the tribunal to identify only one reason or one principal reason for the dismissal. That reason or principal reason for a dismissal is a question of fact for the tribunal. As such it is a matter of either direct evidence or of inference from primary facts established by evidence.b. The reason for dismissal consists of a set of facts which operated on the mind of the employer when dismissing the employee. The employer knows better than anyone else in the world why it dismissed the complainant. It is for the employer to show that it had a reason for the dismissal; that the reason was, as it asserted, a potentially fair one; and to show that it was not some other reason.c. When the employee contests the reason for dismissal put forward by the employer there is no burden on her to disprove it, let alone to positively prove a different reason. However, where an employee positively asserts that there was a different and inadmissible reason for the dismissal, she must produce some evidence supporting the positive case, such as making protected disclosures.d. This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.e. Having heard the evidence of both sides relating to the reason for dismissal it will then be for the tribunal to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence. The tribunal must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was.f. If the employer does not show to the satisfaction of the tribunal that the reason was what it asserted it was, it is open to the tribunal to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the tribunal must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so.g. As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.[11]In Associated Society of Locomotive Engineers and Firemen (ASLEF) v Brady [2006] I.R.L.R. 576, (paras 77-79) the Employment Appeal Tribunal (“EAT”) considered the situation where an employer may have good reason for dismissal whilst welcoming the opportunity to dismiss which that reason gives them:a. Where there is misconduct by an employee “the fact that an employer is glad to see the back of [that employee] does not render the dismissal unfair. What causes the dismissal is still the misconduct”.b. It does not follow that whenever there is misconduct which could justify the dismissal a tribunal is bound to find that this is indeed the operative reason. Even a potentially fair reason may be the pretext for a dismissal for other reasons. For example, even if there is misconduct meriting dismissal, if the employee is treated differently to the way others would have been treated, being dismissed when they would not have been, then a tribunal would be fully entitled to conclude that the misconduct is not the true reason or cause of the dismissal. The true reason is then the antipathy which the employer displays towards the employee.c. It is not only where there is evidence that the employee has been treated differently to the way others would be treated that a finding of unfairness can be made. Once the employee has put in issue with proper evidence a basis for contending that the employer has dismissed out of pique or antagonism, it is for the employer to rebut this by showing that the principal reason is a statutory reason. If the tribunal is left in doubt, he will not have done so. Evidence that others would not have been dismissed in similar circumstances would be powerful evidence against the employer, but it is open to the tribunal to find the dismissal unfair even in the absence of such strong evidence. In a case of mixed motives such as malice and misconduct, the principal reason may be malice even although the misconduct would have justified the dismissal had it been the principal reason. The fairness of the dismissal[12]Where an employer has shown a potentially fair reason for dismissal, whether the dismissal was fair or unfair depends on whether in the circumstances of the case the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The tribunal has to decide that in accordance with equity and the substantive merits of the case. (S.98(4) ERA).[13]In relation to conduct dismissals the leading authority on fairness is the case of BHS v Burchell [1978] IRLR 379, which sets out a three part test namely –(1) Did the employer have a genuine belief in the employee’s guilt?(2) Was that belief based on reasonable grounds?(3) Were those grounds formed from a reasonable investigation?[14]The case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 makes it clear that the test which the tribunal must apply is whether dismissal was within the band of reasonable responses that a reasonable employer in the circumstances might have adopted.[15]That “band of reasonable responses test” also applies in assessing the reasonableness of the investigation carried out into a conduct matter (Sainsbury’s Supermarkets v Hitt [2003] IRLR 23).[16]Where one side to a contract has broken a fundamental term of the employment contract, there by repudiating it, the other side has an option to terminate immediately. So, where an employee has committed an act of gross misconduct the employer can summarily dismiss her without notice or pay in lieu. Remedy if the dismissal is unfair[17]If a tribunal finds that a dismissal was unfair the compensation it should award is “such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the claimant in consequence of the dismissal” (s.123(1) ERA).[18]A just and equitable reduction can be made where the unfairly dismissed employee could have been dismissed at a later date or if a proper procedure had been followed (the so-called Polkey reduction named after the House of Lords decision in Polkey v AE Dayton Services Ltd 1988 ICR 142).[19]Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant it shall reduce the compensatory award by such proportion as it considers just and equitable having regard to that finding (s.123(6) ERA).[20]Where the tribunal considers that any conduct of the claimant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly (s122(2) ERA). Evidence, findings of fact and conclusion on each issue[21]The respondent operates car parks. The claimant was employed by the respondent from 30 November 2015. Between then and her dismissal on 12 April 2019 she had various roles, including a stint as a receptionist. At the time of her dismissal she had worked for about two years as a pre-book adviser as part of the pre-book team (“the Team”) at the respondent’s contact centre.[22]The Team deals with queries or complaints from customers. One of the tasks undertaken by the Team is to deal with requests by customers for refunds. This could come about, for example, where a customer had prepaid for parking but had then been unable to make use of the parking paid for due to technical issues. Each customer issue has a case reference on the respondent’s customer relationship management (“CRM”) system. The parties agreed that there were eight members of staff in the Team although not all of them would be working at the same time. The respondent’s operating processes relating to refunds[23]Both Mr Fadden and Mr Graham emphasised the importance of the systems which the respondent had in place to record and authorise refunds. They both gave evidence that those systems were crucial to ensure that any refunds were justified and also to avoid any possibility of fraud on the part of the respondent’s staff. Mr Fadden in his witness statement (para 12) gave unchallenged evidence that there have been occasions in the past when employees have, for example, tried to defraud the respondent by issuing refunds to themselves instead of a customer.[24]There were two particular operating processes which were relevant to the claimant’s dismissal. The first was the requirement to obtain authorisation from a manager for any refunds over £25. Mr Fadden explained in his witness statement (para 12) that it is the manager’s responsibility to check that the advisor has properly investigated the claim for a refund. The second was the requirement to keep records of any refund. The refunds are issued and logged using a payment system called Advam. However, when a refund was issued, an advisor was also required to record the refund in the respondent’s “Card Log”. That took the form of an Excel spreadsheet (Mr Fadden’s statement para 13). The parties were agreed that one consequence of that was that only one Team member at a time can enter data into the Card Log.[25]In the bundle there was an extract from the Advam refund log (p.59-60). That extract records the dates relating to the refund; the “operator” (in the case of the extract in the bundle the claimant) and the “response” but not the amount of refund approved or reason. The extract from the “card log” shows an excel spreadsheet with 8 columns. Those columns capture more detail about each refund including the reason for it; the amount; and the CRM number.[26]In her cross-examination evidence, the claimant said she accepted the reasons why those processes were in place and that it was very important to stick to them. In relation to the “card log” she also accepted that it was hard for the respondent to audit refunds if that card log was not filled in. That would lead to scope for fraud and for the respondent to lose money by refunds being made to those not entitled to them. Events leading up to the disciplinary action against the claimant[27]The claimant accepted in cross examination that she had received the email send by her then manager, Laura Anderson, to the Team on 3 February 2019. That email (p.55) has the subject heading “Pre book refunds” and is marked as “high” importance. In it, Ms Anderson informs the Team that “You can authorise and refund payments under £25.00, anything over needs to be queued to myself or another Team Manager”. She goes on to say that “Also this has been made into a process so failure to follow will result in disciplinary action being taken”.[28]The email refers to “a process map that I will be sending round shortly and you will need to sign to say that you understand and will be following the process”. I did not hear evidence from Ms Anderson and in answer to my question, Mr Fadden said he did not know whether the process map referred to in her email was circulated to the Team.[29]The bundle included an email with “read receipt” confirmation (p.55) that the claimant (and other Team members) had read the email. In the claimant’s case, she is recorded as having read it on 4 February 2019 at 11:32. In the investigatory meeting notes (p.45), the claimant is recorded as suggesting she may have clicked on the email from Ms Anderson but not ready it through. She suggested that she might have seen it, clicked on it, got busy and forgot to re-read it in the quiet period. In cross-examination the claimant was asked by Mr Clayton whether she agreed that she ought to know what the threshold was. She confirmed that she always knew she had an email about the threshold.[30]The email from Ms Anderson was marked “high” importance. The claimant received it and opened it. It is a short email consisting of three paragraphs. The first two are two lines long and the third is three lines long. The information about the £25 limit is in the first sentence. On the balance of probabilities I find that the claimant did read it all and therefore was aware on 3 February 2019 of the limit on refunds without a manager’s authority and that disregarding that limit was a disciplinary matter. The investigatory process[31]The claimant was initially suspended from work on 28 March 2019 while an investigation was carried out into whether she had used a company phone for making personal use during working hours. The suspension letter was in the tribunal bundle (p.40). Mr Faddon in his witness statement (paras 15- 16) confirmed that the letter was incorrectly dated 18 February 2019.[32]The suspension letter was from Matthew Derbyshire (Call Centre Team Manager). It confirms the claimant’s suspension on full pay whilst a full investigation was carried out “into an allegation that you used a company telephone for personal use during working hours”. It refers to a meeting which took place at “NML Manchester on 28th of March” between the claimant and Mr Derbyshire. There were no notes of that initial meeting in the bundle.[33]An investigatory interview was carried out on 3 April 2019 by Mr Derbyshire. There was a note taker present and her notes from that interview were in the bundle (pp.41-48). At the tribunal hearing, the claimant said that the notes of the investigatory interview were inaccurate in certain respects. I therefore need to decide whether I can accept those notes as an accurate record of what happened on 3 April 2019.[34]The notes are handwritten but on a pre-printed NCP “Investigation Form”. At the bottom of each page of the form there are spaces for the interviewer and the interviewee to sign. On the first page of the form there is a preprinted text which is “to be read to employee being investigated”. That text says, amongst other things, “at the conclusion of the interview you will be given the opportunity to read the notes. You’ll be asked to sign each page to agree that the notes are a true record of interview.” The claimant did not suggest that Mr Derbyshire failed to read out any of the preprinted text. She had signed the first page of the form directly underneath that preprinted text. She also signed the bottom of each page of the form, in effect confirming the accuracy of the notes of meeting.[35]At the tribunal, the claimant suggested that the notes overstated and exaggerated what she had said at the interview. She raised two specific complaints about the notes. One of those was about a comment she had made that the respondent was “not MI5” (p.43). At the tribunal hearing she accepted that she had made that remark but explained that it had been a flippant remark rather than a sarcastic one. That does not to me support her complaint that the notes inaccurately recorded what she said. If anything, it goes to her complaint about how the respondent interpreted the words said. The second complaint was that she claimed she had never said that she “always” forgot the need to get authorisation for refunds over a certain amount (p.43).[36]When asked why she had signed each page of the notes if they were not accurate, her evidence was that she would probably only have glanced over the notes. The claimant accepted in cross examination that she had not questioned their accuracy at the disciplinary hearing which took place on 12 April 2019.[37]I find that the notes of the investigatory interview (p.41-49) are an accurate record of what was said by the claimant and Mr Derbyshire on 3 April 2019. The claimant did sign each page including the first page (p.41) which acknowledges that Mr Derbyshire read out the explanation that the signature on each page was to confirm the notes were an accurate record. The letter inviting her to that disciplinary hearing confirms that she was sent the investigation interview notes on 8 April 2019 (p.61). Even if, as she says, she only glanced at the notes before signing them on 3 April 2019, she would have had a further opportunity to read through them and raise any complaint about their accuracy at the disciplinary hearing 12 April 2019 and did not do so.[38]According to the notes, the investigatory interview started at 3.09 p.m. and ended at 4:30 p.m. Only the first part of the meeting (pp. 41, 42 and the first half of p.43) dealt with the allegation of using a company telephone for personal use during working hours. About halfway down p.43 the notes record Mr Derbyshire as saying “Something has come to light whilst you’re off. Card refund process?”. This seems to be the first time the concerns relating to refunds were mentioned to claimant. That was the claimant’s evidence in cross-examination. The letter or email inviting the claimant to the investigatory interview wasn’t included in the bundle so I do not know what it told the claimant about the purpose of the interview. From the way that Mr Derbyshire introduced the subject of refunds, however, I accept the claimant’s evidence that she had not been told before the interview that the respondent was also investigating concerns about the way she was dealing with refunds.[39]Those concerns, according to the respondent, had been triggered by an email from another member of the Team to Laura Anderson, the claimant’s line manager. That email (p.52) was dated 30th March and asked Ms Anderson to look into a particular refund processed by the claimant, identified by its CRM number. The email noted that “it would appear [the claimant] issued a refund of £86.50 on 28 March 2019 but I cannot find the case or card refund log entry relating to the refund ( the refund was valid for an on- site payment but is higher than our personal £25.00 refund limit without auth).”[40]The claimant neither at the tribunal hearing nor during the disciplinary process suggested that that email was not genuine. She did not suggest that the colleague concerned had been asked or prompted by Mr Fadden or anyone else to proactively look for examples of failures by her to follow operating procedures relating to refunds. She did say in cross-examination that she had a poor relationship with the colleague who sent the email. However, she also accepted in cross-examination that the colleague was “doing her job” when she raised the matter with Ms Anderson. Mr Fadden also said that the colleague’s decision to highlight the issue to Ms Anderson reflected the importance with which the operating process was regarded by other Team members. The claimant did not challenge that evidence and I accept it.[41]According to the investigatory interview notes, the claimant’s immediate reaction when Mr Derbyshire said that “something had come to light” in relation to the card refund process was to say “I always forget I have to seek auth [orisation] over certain amount. Unsure of the amount.“ Although the claimant denies saying she “always” forgot she had to seek authorisation, I have accepted that the notes are accurate and find she did say that. I do however, accept that it is unlikely that she literally meant that she forgot to seek authorisation on every single occasion when the limit was reached. Even if I am wrong about the accuracy of the notes, the claimant accepted in cross examination that she had told Mr Derbyshire that she did forget to seek authorisation. I note that Mr Derbyshire had not at that point mentioned that the issue was a failure to seek authorisation for refunds over a certain amount. The claimant immediately knew that was what the concerns were about.[42]The notes also record that when Mr Derbyshire asked how much the limit was before authorisation had to be sought, she said she thought it was £50. When Mr Derbyshire told her it was £25 she said that she thought that different Team members had different limits (p.45). When it comes to recording refunds in the “card log” the notes record the claimant as saying that she was aware that needed to be done but that she might have missed some (p.45). Later she explains that she had possibly missed some “due to going home/not well.” She said that she had worked through some bad days of sickness and was “not good in terms of memory”. She said that “may or may not be the reason” (p.46).[43]The notes record Mr Derbyshire adjourning the meeting at 15:50 and then resuming at 16:22. When the meeting resumed the notes record him as telling the claimant that he would be referring her “to disciplinary for gross misconduct due to potential loss of revenue, loss of trust, and failure to follow procedure”. He also confirmed that he would not be progressing the issue of use of the company phone as a disciplinary matter but would deal with that as a letter of concern “which will advise that going forward you will use your personal phone and make calls during break and lunchtime” (p.47).[44]After she was told the outcome, the notes record the claimant as saying that she thinks that the respondent had been “trying to manage her out when Simon was here”. (In cross examination she confirmed that Simon was a manager who had left in 2018). The claimant said she still felt pushed out. She said that she was honest but that “managers lie although they should know better”. She said that in previous jobs she had been commended and now she’d gone to having negative feedback all the time. She said that she had apologised to the team for her poor work.[45]At the end of the meeting the claimant said that she “don’t dispute the factsI accept them”.[46]After the investigatory interview, Mr Derbyshire wrote an investigation report (pp.49-51). On the front page he set out the “Allegation” as “potential loss of revenue; loss of trust; failure to follow procedure.” He attached the relevant documents, including Ms Anderson’s email 3 February; the read receipt for that email; the email of 30th of March raising concerns about a refund; the investigation interview notes and the CRM record relating to that refund. He also included the Advam refund log which showed that the claimant had processed 69 refunds from October 2018 to the date of the report and the card log for the same period of time which showed only 26 refunds logged by the claimant, a shortfall of 43.[47]In the case summary of his investigation (p.51), Mr Derbyshire records his recommendation that the claimant be invited to a disciplinary hearing for potential gross misconduct for: “Potential loss of revenue due to not following agreed company processes; Failure to follow process as [the claimant] has confirmed during the interview; loss of trust based on the failures to follow agreed actions“. His summary also records that “during the interview [the claimant] advised that she was unaware of the refund limit before seeking approval from managers but even at the £50 limit [the claimant] believed to be the amount there is evidence to suggest [the claimant] has completed refunds above this amount without seeking authorisation.” The disciplinary hearing and decision to dismiss[48]By letter dated 8 April 2019 (p.61) the claimant was invited to a “gross misconduct disciplinary meeting” on 12 April 2019. The letter repeated the “Allegation” as set out in Mr Derbyshire’s investigation report and enclosed copies of the supporting documents in his report.[49]The disciplinary hearing on 12 April 2019 was conducted by Mr Fadden. The claimant was represented by Paul Dutton. There was a notetaker and their handwritten notes were in the bundle (p.63-71). There was also a typed transcript of those notes which both parties at the tribunal accepted was an accurate transcript of the handwritten notes (p.72-76). The claimant did not, however, accept that those handwritten notes (and by extension the typed transcript) were themselves an accurate record of what was said at the disciplinary meeting. In particular, she did not accept that she had said that “as I was sometimes on my own, my work became sloppy” (p73). She also suggested that the respondent had deliberately misinterpreted a reference at the meeting to wanting to “coast” for the last 2 years (p.74). The notes record that she explained that what she meant by that was “no responsibility in the role for the final 2 years”(p.75).[50]Unlike the investigatory interview notes, the claimant was not asked to sign the disciplinary meeting note to confirm their accuracy. Even on the claimant’s case, however, her objections to the words recorded in the notes are to the one word “sloppy” which she denies using. It seems to me the claimant’s objection to the notes is less to do with the accuracy of the notes themselves and more to do with the way that during the meeting she felt Mr Fadden deliberately misinterpreted her words to put a worse spin on them than she intended, an objection summarised in her “appeal” email dated 17 April 2019 (p.82) where she says that Mr Fadden “wilfully misinterpreted my comments that I was coasting”.[51]In that email the claimant also refers to her “admission that my work had deteriorated as a result of the treatment I received by yourself and others”. It is clear, therefore, that she had made comments at the meeting about the quality of her work deteriorating. On the balance of probabilities, I find the notes of the disciplinary meeting are an accurate record of the words said at that meeting and I base my findings of fact about what happened at the meeting on those notes unless otherwise stated.[52]The notes record Mr Fadden putting to her that there was evidence of her refunding £86.50 to a customer without authorisation from a manger. He also told her that the records showed that there were records of 12 refunds above the £25 limit set by the respondent. At the tribunal, the claimant did not deny that she said at the disciplinary hearing she “did not dispute the facts” and that “everything was accurate” (p.73). The claimant did not deny saying at the disciplinary hearing that she was not sure whether the limit was £25 or £50 (p.73). In her defence she said at the meeting that she felt she was being “targeted with everything I do” and that she had been made to feel “Bullied and intimidated” (p.75). She also said that she had had “3 false allegation made against me in 1 week” although she accepted that was “months ago” (p.75). The claimant also did not deny saying that “if she could leave [the respondent] and pay her way she would.” She accepted at the meeting that her work “wasn’t up to scratch” but also said at the meeting that her life had been made a misery for 2 years leaving her feeling “miserable” and “[leaving her] with no confidence. She did say, however, that she was happy with Ms Anderson as her manager (p.75).[53]The claimant presented Mr Fadden with copies of references from her prerespondent employment (pp.87-95) and copies of favourable feedback and quarterly reviews with the respondent (pp.98-159). Those reviews covered three quarters, from 1 April 2016 to 30 June 2016 (pp.100-115); 1 July 2016 to 30 September 2016 (pp.116 to135); 1 January 2017 to 31 March 2017 (pp.136 to154). There was also a “Stretch Target and PDF Creation” for the review period 1 April 2016 to 31 March 2017 (pp.155 to 159). Each of the quarterly reviews gave the claimant an overall performance rating of 3, i.e. “good performance”. Those documents were all from the period when the claimant was managed by Charlotte McMullen.[54]In his witness statement, Mr Fadden refers to these documents and says that he did not think they were “particularly relevant to the issues”. He notes that the positive feedback was from “over a year earlier”. The disciplinary hearing notes simply record Mr Fadden as saying in relation to these documents that “These are different roles” (p.76). The claimant’s evidence was that Mr Fadden did not read the documents. However, the notes from the meeting record that the claimant “shows [Mr Fadden] good feedback from over a year ago” and that she explained to him that she got “good feedback when on Charlotte McMullen’s team” (p.74). There is nothing in the disciplinary hearing notes to suggest that Mr Fadden read through all the documents provided by the claimant, which amounted together to some 50 plus pages. I find that Mr Fadden did not read those feedback and review documents in detail but was aware from what the claimant told him at the meeting that they included positive feedback for the claimant albeit dating back over a year.[55]The notes record the claimant referring at the disciplinary hearing to specific incidents in the past where she felt that the respondent had “failed to do anything (p.74) in relation to issues the claimant had with two senior staff. She also referred to an incident when she had been criticised for her “wrap up time”, i.e. the time it took her to finish a call. She accepted at the disciplinary meeting and at the tribunal that that incident was around May 2018, i.e. nearly 10 months before the incident leading to the disciplinary action.[56]Having adjourned the meeting, Mr Fadden then returned to tell the claimant that he had decided to dismiss her for gross misconduct. He advised her of her right to appeal within 5 days of receiving the letter confirming the decision to dismiss. The claimant confirmed she would be appealing and said that she had “been advised by ACAS to follow the procedure, I have no faith in NCP for a fair outcome, I feel the decision was pre-determined” (p.76).[57]Mr Fadden confirmed the decision to dismiss for gross misconduct in his letter dated 15 April 2019 (p.79). It summarised his findings and said that three allegations were upheld:a. Failure to follow procedure: this related to the refund of £86.50 made without authorisation. The letter notes that the claimant did not dispute that she had failed to follow the process and even if she understood the limit to be £50, there had been a failure to follow procedure.b. Potential loss of revenue: the letter states that “out of the number of refunds you have processed without seeking the relevant authorisation, I have a genuine belief that these actions have led to a loss of revenue for the business and I am therefore upholding this allegation”.c. Loss of trust: the letter stated that Mr Fadden was satisfied that the claimant was aware of a process put in place by the respondent but “chose to disregard them”. It also noted that Mr Fadden was very concerned about the claimant’s comments that she was “coasting” and had been for the previous 2 years.[58]In the letter, Mr Fadden says that he considered issuing a Final Written Warning but “due to the severity” he “had no option but to dismiss”.[59]At the tribunal I asked Mr Fadden to tell me which of the examples of gross misconduct listed in the respondent’s disciplinary policy (p.39E-F) applied to the claimant’s conduct. He said there were two shown on that list: “[Serious insubordination] or serious failure to obey instructions, or any other serious act of insubordination”; “Serious neglect of duties, or a serious or deliberate breach of your contract or operating procedures”. He also added “loss of revenue to the business”. That is not on the list but the list is expressly stated to be “not an exhaustive list”. In one way “loss of revenue” seems to me not to fit well with the list since it is a consequence of conduct rather than conduct in itself. I understand the respondent’s evidence to be that conduct giving rise to loss of revenue would be viewed particularly seriously. That seems to me to be consistent with the evidence I heard, for example about the respondent’s focus on fraud prevention. The other examples on the list are those which are commonly seen given as examples of gross misconduct, such as physical violence; accessing obscene material, incapability due to alcohol or drugs and serious or repeated breach of health and safety rules. The appeal against dismissal[60]There was some confusion surrounding the claimant’s appeal. I find that what happened was that the claimant e-mailed Mr Fadden on the afternoon of the disciplinary hearing, i.e. 12 April 2019, to tell him that she did want to appeal (p.77). In that email she said she did not want to attend any appeal hearing but had been advised by ACAS to put her appeal in writing and request a written response. She made it clear that she thought the outcome of the disciplinary hearing had been pre-determined and it would be “futile to coming to listen to a repetition of this morning’s comments”. She said she did not expect a fair outcome but “ACAS suggest it is good practice to follow your process first”.[61]In terms of grounds of appeal, she said that her reasons remained the same, namely that “the deterioration in [her] work [was] directly linked to the appalling way in which [she] had been treated over the last two years”. She accused the respondent of only being interested in making money and Mr Fadden of dismissing her without reading the documents she had brought to the disciplinary hearing giving positive feedback from Charlotte McMullen (p.78).[62]The confusion, it seems to me, arose because the claimant sent that “appeal” email before Mr Fadden had sent her his letter dated 15 April 2019 (p.79) confirming her dismissal.[63]The claimant emailed Mr Fadden again on 17 April 2019 (p.82) in response to the dismissal letter saying she was “assuming this is your response to my appeal”. That assumption was not correct-Mr Fadden’s letter was the written confirmation of her dismissal. The claimant notes (correctly) that the dismissal letter makes no reference to her allegations of bullying and explains that her reference to “coasting” was to her “no longer having a job with responsibility as I had in the past as both a senior nurse and a tutor”. She says that she will now go on to “the next stage” through ACAS and ends by saying that “you still refuse to acknowledge that had you acted responsibly to both my injury and my bullying allegations we would not be at this stage”. The reference to her injury is to a back injury sustained at work in relation to which the claimant was bringing a personal injury claim against the respondent. Mr Fadden did not respond to the claimant to clarify that his letter was not the letter setting out the outcome of her appeal.[64]In the meantime, Mr Graham had sent a letter dated 16 April 2019 acknowledging the claimant’s request for an appeal and confirming he would be happy to accept any written representations from her or additional evidence by 24 April 2019 (p.81). The claimant’s evidence was that she did not receive that letter, though she confirmed it was sent to the correct address. I note it was sent to the same address (with postcode) as the other letters which the claimant did receive. Mr Graham confirmed that to the best of his knowledge the letter was sent. The presumption is that correctly addressed and posted letters are received and there was no evidence of non-receipt in this case so I find on the balance of probabilities that the letter was received by the claimant.[65]The claimant did not send any further representations or evidence to Mr Graham. Mr Graham in his witness statement said that he considered the papers in the case including the investigation report and supporting documentation (pp.49-60); the disciplinary hearing invitation letter (p.61); the disciplinary hearing notes (pp.72-76); the claimant’s confirmation of appeal email (p.77-78) and the disciplinary outcome letter (pp.79-80). It does not seem from his evidence that he considered the email from the claimant dated 17 April 2019 (p.82) which set out her explanation of what she had meant by “coasting”. His evidence does not refer to him having read the references and Charlotte McMullen quarterly reviews presented by the claimant at the disciplinary hearing (pp.86-159), although he does refer to them in his witness statement, as I discuss below). There is nothing in his letter of decision suggesting he had read them and I find as a fact that he did not do so. I do find that he was aware of them, however, as the claimant’s appeal email (p.78) refers to them and their relevance to the decision to dismiss.[66]By a letter dated 29 April 2019, Mr Graham told the claimant he upheld the decision to summarily dismiss the claimant (p.85). The letter says he did so “given that you have failed to supply any additional supporting evidence”. In his witness statement (para 13), Mr Graham said that “[the claimant’s] work appraisals [by Charlotte McMullen] were not particularly relevant to the matter” and that she had not explained how any poor treatment justified or excused a failure to follow clear instructions when she had been warned failing to follow them would lead to disciplinary action (para 11). His evidence was that “the importance the business places on the refund procedures, and the claimant’s lack of remorse and acceptance of wrongdoing (for example, seeking to place blame elsewhere) meant that dismissal was a reasonable sanction” (para 13).[67]The claimant denied that she had received the letter date 29 April 2019 notifying her of the outcome of her appeal. It was correctly addressed and Mr Graham confirmed that to the best of his knowledge it was posted. The claimant did not suggest why it would have been to the respondent’s advantage not to send her the letter. In the absence of evidence to the contrary, I find that letter was sent to the claimant. By the date it was sent the claimant had lodged her claim with the tribunal (which she did on 26 April 2019). The claimant’s evidence about the real reason for her dismissal[68]The claimant’s position was that she was “dismissed because I spoke up for myself and [the respondent] looked for every opportunity for a reason to do so (14th para of her statement). Her view was that after she joined the Team after her stint on reception she was a “thorn in the respondent’s side” and that she was “being targeted with a view to dismissing [her]” (10th para of her statement).[69]In her statement she referred to a dispute which had arisen about her pay when she had moved to the post of receptionist. Her evidence was that she challenged the rate of pay when it was reduced to minimum wage by the then Shared Services Director. The claimant’s evidence was that the post had previously been filled by the same director’s niece at a higher rate of pay. The claimant said she had taken a grievance about this (despite being previously warned it would not succeed). She claimed that she was “humiliated and belittled” by the then HR manager. She said she had been asked to stay on in the receptionist role until they got someone else but she was not willing to do so because she believed that she had been treated “appallingly” and rang her doctor and sent in a sick note for stress (7th para of her statement). Her evidence was that she was then told that because she had left the office without telling anyone she had not followed correct procedure and she would not be paid. She had emailed in response saying she had informed someone and that it was unlawful to withhold her pay. In her statement she comments that “it is astounding that the HR manager and her team completely disregard all employment law as they rule by intimidation” (8th para of her statement). The claimant did not suggest that the director or managers involved in those incidents had played any part in the investigatory or disciplinary process leading to her dismissal.[70]In her statement the claimant also said that her then manager Simon Parry would speak to her every week about “some misdemenaour on [her] part, mostly trivial or untrue”. She said that she told Simon she was aware that she was being managed out and “the hassle stopped for a while” (12th para of her statement). In cross examination she accepted that Simon had left the respondent in 2018. Again, there was no suggestion that he played any part in the investigatory or disciplinary process leading to her dismissal.[71]Mr Fadden clearly was involved in the process. In her email to Mr Fadden dated 17th April 2019 (p.82) the claimant says that “although [Mr Fadden] has no recollection of incidents of being rude and aggressive towards me I do as I was advised to log them all by ACAS”. Her witness statement does not refer to any such incidents nor did the claimant include any log of incidents in the bundle for the tribunal. In that same email she goes on to say that Mr Fadden “did not apologise for the one incident that was mentioned”.[72]Mr Fadden in his statement said that there was no history between him and the claimant and he “had no ill-feeling towards her personally” (para 41). He said he did not recall being rude or aggressive. He did recall one incident for which he did apologise. This was when he had asked the claimant why she was not sitting in the right chair – the respondent having had a chair adjusted and labelled to her specifications after a desk assessment. Mr Fadden’s evidence was that the claimant had said she found him doing so demeaning and embarrassing. Mr Fadden had apologised saying that was not his intention.[73]In cross examining him, the claimant put it to Mr Fadden that he had been rude and aggressive towards her. She suggested that people used to laugh and say that the claimant could not walk past Mr Fadden’s desk without being told off for something. Mr Fadden denied that was the case. He said that the only conversations he had with the claimant were as a manager and adviser and in relation to work issues.[74]I note that the claimant does not make that allegation in her witness statement. Nor does she say in her statement that Mr Fadden spoke to her rudely or aggressively. It is clear from the evidence that the respondent was very process driven. That is perhaps understandable given the nature of the business, which involves keeping track of an extremely large number of transactions handled remotely. It seems to me that Mr Fadden, as a manager in the business, took adherence to those processes very seriously. In contrast, the claimant made it clear both at the tribunal and in the investigatory and disciplinary meetings that she found work at the respondent to be excessively process driven and rule bound. She referred to the work as being “robotic” and being pulled up by her previous manager for “trivial” misdemeanors. Her attitude to the work is perhaps summed up by her comment that the respondent was “Not MI5”. I accept her evidence that she made that comment flippantly, but it seems to me to sum up her view that the respondent took its own rules too seriously. That view was perhaps informed by her previous roles as a senior nurse and as a tutor, both roles which she clearly viewed as involving more responsibility than her role at the respondent. Having observed both the claimant and Mr Fadden giving evidence and heard their evidence itself it seems to me probable they may well have had an uneasy working relationship.[75]However, the only specific evidence about an incident between the claimant and Mr Fadden I heard about was the chair incident dealt with by Mr Fadden in his statement. The comment made by Mr Fadden does not on its face seem to me to be demeaning or embarrassing and the claimant was not able to convincingly explain why it was so. I find the claimant has not provided evidence to substantiate her assertion that Mr Fadden was “rude and aggressive” towards her.[76]In any event, the claimant did not provide any evidence to suggest that Mr Fadden had instigated the investigation which led to her dismissal nor had played any part in the investigatory process. His involvement was only at the disciplinary hearing stage and was based on the investigation carried out by Mr Derbyshire. In cross examination, the claimant said that she was not saying that Mr Fadden was dishonest or that he was lying when he said she was dismissed for misconduct. She accepted he was doing his job but the “system was geared that way”. I understood her to be saying that it was the respondent as an organisation, rather than Mr Fadden personally, which had pre-determined her dismissal.[77]The claimant did not suggest that Mr Derbyshire had ever been rude or aggressive to her or that he might have otherwise been involved in targeting her for disciplinary action.[78]In her claim form (p.7) the claimant said that she suspected it was her personal injury claim which brought about her dismissal. I do find (and indeed Mr Fadden accepted) that he was aware that the claimant was bringing personal injury proceedings against the respondent. His statement says he found out on 2 April 2019, i.e. after the claimant was suspended but before the disciplinary hearing took place. There was no evidence presented about when (if at all) Mr Derbyshire knew about the claim. Mr Fadden denied he took the existence of the claim into account in deciding the outcome of the disciplinary hearing. I found his evidence on this point credible and accept it.[79]There was a further piece of evidence which the respondent suggested was relevant to the issue of the real reason for dismissal so I will deal with it here. The claimant accepted that two weeks or so before she was dismissed a desk assessment was carried out by an external person. The respondent’s evidence was that it then ordered a special chair for the claimant as a result of that assessment. The claimant denied that a chair had been ordered but accepted she was not really in a position to know whether it had or not. In the absence of contrary evidence I find the respondent did order a chair for the claimant as a result of the external desk assessment. Mr Clayton suggested this was relevant because the respondent was unlikely to have incurred such expense if it knew that it was going to be dismissing the claimant (which it would have if the dismissal was predetermined as she suggested).[80]Finally on this issue, when it comes to consistency of treatment, the claimant said in answer to my question that she knew of colleagues who had made minor errors of procedure but nothing of the same severity as hers. Mr Fadden in answer to my question said that none of his other 50 disciplinary cases had involved issues relating to refunds. However, previous loss of revenue cases had led to dismissal. Finding of fact - the reason or principal reason for dismissal[81]I have to decide based on the evidence what was the reason or principal reason for the dismissal of the claimant, i.e. the set of facts which operated on the mind of the employer when dismissing the employee. The onus is on the employer to establish that reason.[82]I find that the respondent genuinely believed that the claimant had breached operating procedures which, by her own admission, were important to the respondent. At the disciplinary hearing she accepted the accuracy of records showing that she had on 12 occasions exceeded the £25 limit beyond which a manager’s authorisation was required for a refund. There was also clear documentary evidence that the claimant had repeatedly failed to record refunds in the card log despite knowing that was the required procedure.[83]The claimant in cross-examination was not willing to accept that she had acted “willfully” in breaching the procedures. She did accept in cross examination that she had been negligent and that what she had done could be characterised as “gross negligence”. However, I find that the respondent, and specifically Mr Fadden, did genuinely believe that she had knowingly failed to follow the operating procedures.[84]That belief was based on a reasonable investigation - even on the claimant’s own case at the investigatory hearing, i.e. that she thought that the limit was £50, there was clear documentary evidence of an unauthorised refund in excess of the limit. However, I find that Mr Fadden genuinely believed that the claimant was aware that the limit was £25, based on the email from Ms Anderson on 3 February and the read receipt showing that email had been opened by the claimant.[85]I find Mr Fadden also genuinely believed that the claimant did not show remorse or appreciate the seriousness of the breaches, leading to him genuinely believing that there was on ongoing risk that she would not follow the procedures in the future. That belief was based on the claimant’s comments about not wanting to work at NCP and that she had been “coasting” for the past two years. As I have noted, the claimant disputed that by “coasting” she meant what the respondent thought she meant. It seems to me that even on her own version of what she meant (explained in her email at p.78), however, it would support a genuine belief on the part of Mr Fadden that she did not view her role as one which carried the level of responsibility which he the respondent attached to it.[86]At this stage I am make a finding of fact as to the real reason for dismissal. In this case, I am satisfied that Mr Fadden, who took the decision to dismiss, genuinely believed that the claimant was guilty of misconduct which could justify dismissal.[87]The claimant accepted she had broken the operating procedures. However, it was part of the claimant’s case that, like in Brady, the employer took the opportunity provided by that misconduct to dismiss her for other reasons. The way she put it in cross examination was that the misconduct must have been “manna from heaven” for the respondent. I have considered carefully whether there is evidence that there were other factors in Mr Fadden’s mind when he decided to dismiss.[88]There is no evidence that the claimant was treated inconsistently to others. This is not a case, for example, where more than one employee was guilty of the same breach and each was treated differently in terms of the decision to dismiss. By the claimant’s own admission in answer to my question, no one else in the Team had committed breaches of the same severity as the claimant.[89]As Brady makes clear, it is not necessary for the employee to show inconsistency of treatment. It can be enough, e.g. to show the dismissal was motivated by malice. The claimant did in this case assert that that Mr Fadden was “rude and aggressive” to her but I have not found evidence to support that perception. She said that ACAS had told her to keep a log of incidents but did not produce it as evidence at the tribunal. As I have mentioned above, I can believe that Mr Fadden and the claimant might have had an uneasy working relationship because they took different attitudes to the importance of the respondent’s business. However, there was no evidence that Mr Fadden bore the claimant any malice or ill-will which caused him to dismiss her for the misconduct when he otherwise would not have.[90]The claimant asserted that the respondent more generally was trying to “manage her out” because she was a “thorn in their side” and because she spoke up for herself. She referred in her evidence to incidents which happened in 2018 with her then manager Simon and to even earlier incidents when she had challenged the reduction in pay of the receptionist role. She did not provide evidence (or suggest) that the managers involved in those incidents were involved in the investigation and disciplinary action which led to her dismissal. In particular, she did not suggest that Mr Fadden was involved in those incidents. She said that she had been subject to constant fault finding but provided no detailed evidence about that other than one occasion when she had been told off for being late in when the tram was stuck. Although she claimed she had been dismissed for “speaking out” there was no evidence that those past events were in Mr Fadden’s mind when he decided to dismiss her.[91]The claimant did not provide evidence of ongoing grievances or issues on which she had “spoken up”. The exception was her bringing a personal injury claim against the respondent. Mr Fadden accepted that he knew she had lodged such a claim against the company by the time the disciplinary hearing took place. However, there was no evidence that Mr Derbyshire knew about the claim when he undertook the investigation meeting. There was also no evidence that Mr Fadden (who did know about the claim) had sought to influence the outcome of the investigatory meeting on 3 April to ensure that it resulted in disciplinary proceedings. I have accepted Mr Fadden’s evidence that the existence of the personal injury claim did not influence his decision.[92]As Kunzel makes clear, it is for the employer to prove the reason for dismissal. However, there is an onus on the employee to provide some evidence if they want to cast doubt on the reason put forward by the respondent. Given that the claimant had shown that the decision maker was aware of her personal injury claim when he dismissed her, I have considered carefully whether the respondent has discharged the burden of showing that misconduct was the real reason or dismissal. I have decided that it has. I find that the reason for dismissal in this case was that put forward by the respondent, i.e. the claimant’s misconduct in failing to follow the respondent’s operating procedures.
Discussion and conclusions
[93]Turning to the issues I need to decide in light of those findings of fact. Those issues are:a. Whether the reason given by the respondent for the dismissal, i.e. (mis)conduct was the real reason for the dismissalb. Whether the respondent followed a fair procedure in reaching the decision to dismissc. Whether the respondent acted fairly in treating the misconduct as justifying dismissal.[94]I deal with each of those issues in turn below. Whether the reason given by the respondent for the dismissal, i.e. (mis)conduct was the real reason for the dismissal[95]Yes it was. As I have recorded above, I find that the reason for dismissal in this case was that put forward by the respondent, i.e. the claimant’s misconduct in failing to follow the respondent’s operating procedures. That is a potentially fair reason for dismissal (s.98(2)(b) ERA). Whether the respondent followed a fair procedure in reaching the decision to dismiss.[96]The claimant did not in her submissions raise specific concerns about the procedure adopted by the respondent. Her main concern was about the decision to dismiss and the true reason for it.[97]Based on the findings of fact recorded above, I accept that the respondent carried out a formal investigation and disciplinary process which involved consideration of relevant documentary evidence and of evidence provided by the claimant face to face. The claimant did not suggest that there was any unfairness in the process for inviting her to the disciplinary meeting. She did not suggest that she wasn’t aware of the issues to be discussed or the relevant evidence. As she accepted at the end of the investigatory interview, she did not dispute the facts of the allegations against her.[98]It appears to me from her tribunal claim form and her email of appeal, (pp.77-78) that the claimant’s main complaint was that the respondent had distorted her evidence during that process to enable it to justify her dismissal. I have accepted, however, that the investigation interview and disciplinary meeting notes accurately recorded what was said at those meetings.[99]For the sake of completeness, I have considered two other aspects of the procedure which the claimant raised concerns about. The first was the refusal of Mr Fadden to take into account the documentary evidence of previous good references and reviews which she handed to him at the disciplinary hearing. My finding of fact was that Mr Fadden did not read those documents. I remind myself that the question for the tribunal is whether the investigation into alleged misconduct falls within the band of reasonable responses. There is no one correct process for an employer to follow. I found that Mr Fadden did not ignore the documents but glanced at them and decided that they were not relevant to the issue he was deciding. I accept that another employer might have decided to inspect those documents in detail but it seems to me to be within the band of reasonable responses for Mr Fadden to have decided that since they were more than a year old they were not directly relevant to the issues he was deciding.[100]The second issue I have considered is whether the confusion about the appeal process impacts on the fairness of the procedure. I have found that, contrary to the claimant’s evidence, she did receive the two letters from Mr Graham inviting her to send any relevant information and then informing her of the outcome of the appeal. However, the respondent did not respond to her email of 17 April 2019 (p.82) to tell her she was wrong to assume that the letter she had received from Mr Fadden was the outcome of her appeal.[101]I find that the failure to correct that misapprehension did not mean the procedure followed was outside the band of reasonable responses. It seems to me it was reasonable for the respondent to take the view that the letter which I found was sent by Mr Graham on the 16 April 2019 would clarify the situation. In any event, the claimant did not in her evidence suggest that she would have sent in anything further to Mr Graham had she received the letter from him. In answer to my question, she did say that had she been given an appeal she would have pursued it. The claimant was given the opportunity to appeal and did so. Both in her appeal email (p.77-78) and in her evidence at the tribunal, however, she made it clear that she was only going through the appeal process because ACAS had advised her she should before she started her unfair dismissal claim.[102]Having considered those detailed points and stepped back to consider the investigatory and disciplinary procedure as a while, I find it was within the band of reasonable responses. Whether the respondent acted fairly in treating the misconduct as justifying dismissal.[103]The claimant’s case was that the respondent had distorted what she had said at the investigatory interview and disciplinary meeting to justify dismissal. Both Mr Fadden and Mr Graham were adamant that the claimant’s misconduct was such a serious issue that summary dismissal would always be justified.[104]The claimant accepted how important the operating procedures were. She accepted in cross examination at the tribunal that what she had done could be seen as gross negligence. She was, however, insistent that she did not act “willfully”. Although it was not entirely clear how she defined this, the essence of it was, in her words that this was not a case of her saying “sod it” and ignoring the rules. Instead, her suggestion was that she forgot the need to get authorisation and to fill in the card log. In essence, as I understand her case, the respondent had exaggerated her failings to enable them to say her failings were deliberate and so merited dismissal.[105]She referred to the pressure of working in the call centre, being frontline talking to customers who were not always happy about the position and as a result not always having time to fill in the card log. That was made worse by the problem that only one adviser could get into the card log at any one time. Mr Clayton referred to these as “excuses” which the claimant took exception to. Again, it seems to me that reflects the claimant’s perception that she was a diligent worker trying to do her best but failing.[106]The claimant made it clear at her disciplinary hearing and at the tribunal hearing that she did not enjoy working at the respondent, at least towards the end of her time working with the respondent. Her evidence was that at the time she was dismissed she was looking for another job and would have left the respondent had she not needed the money she earned there to pay her rent. She had also told Mr Fadden this in the disciplinary hearing.[107]Viewing things from Mr Fadden’s point of view, however, I have found that he believed he had evidence of an employee who, even on her own case (that she thought the limit was £50) had broken an important operating procedure intended to prevent fraud. He had documentary evidence which led him to genuinely believe she in fact knew (or at least should have known) that the limit was £25 and had authorised refunds over that limit on 12 occasions. That employee had also accepted a failure to record a significant number of refunds in the card log while accepting the importance of doing so. It seems to me that it was within the band of reasonable responses for him to decide that this amounted to a “[Serious insubordination] or serious failure to obey instructions” and/or “Serious neglect of duties, or a serious or deliberate breach of your contract or operating procedures” amounting to gross misconduct.[108]When it comes to the appropriate sanction, I accept that some employers might perhaps have decided that (given there was never any suggestion of dishonesty on the claimant’s part) a lesser sanction (even if only dismissal with notice) was appropriate. Other employers might have given more weight to evidence of past good performance, albeit more than a year old. However, Mr Fadden was faced with an employee who had told him that given the choice she would not be working at the respondent. She had also told him she found the work robotic and was “coasting”. That, it seems to me, lead to him reasonably conclude that there was a significant risk of the claimant failing to obey rules in future including those rules which were important to the respondent relating to revenue and that summary dismissal was the appropriate sanction.[109]In the circumstances I find that the decision to summarily dismiss the claimant was within the band of reasonable responses. Summary of conclusions[110]In light of my conclusions above, I find that the claimant’s claim of unfair dismissal fails and is dismissed.