Mrs J Garner v Cheshire Autism Practical Support Ltd: 2405951/2022

EMPLOYMENT TRIBUNALS

Case No 2405951/2022

Between

Mrs J GarnerClaimant

Cheshire Autism Practical Support LtdRespondent

Before

Employment Judge Aspinall

Mr Flood Counsel for respondent

Date 3 May 2024

JUDGMENT

The claimant’s autism did not amount to a disability for the purposes of Section

[6]Equality Act 2010 between 3 June 2021 and 19 April 2022. The claimant’s complaints of disability discrimination fail and are dismissed. Her complaints of unfair dismissal, breach of contract notice pay, unauthorised deduction from wages and holiday pay proceed to final hearing. JUDGMENT having been sent to the parties on 9 October 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]By a claim form dated 3 August 2022 the claimant brought complaints of unfair dismissal, breach of contract (notice pay), outstanding wages and holiday pay and disability discrimination, relying on autism as her disability. The respondent defended the complaint by its response form dated 16 September 2022.

[2]The preliminary hearing was listed to decide whether or not the autism amounted to a disability within the definition in section 6 of the Equality Act 2010 between 3 June 2021 and 19 April 2022.

[3]At a ground rules hearing before Employment Judge Howard on 28 June 2023 it was decided (because of the sensitive personal nature of a disability impact statement) that this preliminary hearing would be a private hearing.

[4]Further discussion at the outset of our case today led to further adjustments for the claimant, including adjustments on communication; we talked about spiralling and agreed that a signal would be given if the claimant fell into spiralling; and we talked about ranging, and again agreed a signal would be given. In the event neither of these interventions were needed and the claimant gave her evidence competently and in a straightforward and helpful way.

[5]An adjustment was made in relation to the physical layout of the room because the claimant was uncomfortable at being in the same room as two members of the respondent organisation who had attended. The claimant was offered a courtroom with screening in place but did not feel that necessary, and it was agreed that if the furniture was moved so that the claimant could sit at an angle facing the Judge where she could be seen by Mr Flood but where she did not have to see those respondent members then this would work, and this was put in place and worked well for her.

The Issues

[6]There was no List of Issues today but there was a single issue to be determined, and that was whether at the material time the claimant was a disabled person within section 6 of the Equality Act 2010. Documents and Evidence

[7]At the hearing today there was a bundle which had been sent electronically and was printed at Tribunal. It ran to 61 pages. The claimant also wished the Tribunal to see a copy of her letter to the Tribunal dated 9 March 2023 in which she set out her arguments (in effect, a set of submissions on disabled status) and that document was added to the bundle.

[8]The respondent produced an addition to the bundle (pages 62-198) and they were prints of Facebook entries made by the claimant in around September 2022. Mr Flood regretted that having only been brought to his attention the previous working day there had not been time for them to be shared with the claimant before attendance at Tribunal today. He wished to have them admitted as they were of potential relevance, and he was clear before evidence was given that they might go to credibility and to the claimant's position on whether her condition was having a substantial effect on her day-to-day activities at the material time. It was agreed at his suggestion that an adjournment should be taken to give the claimant time to look at those documents so that she was not surprised by them. We adjourned for an hour. The claimant took that time to look at the entries and was happy to be referred to them in crossexamination. I directed that the claimant remain focused on what she would say in response to questions about her condition and leave it to me to decide what weight (if any) to attach to what she had said on Facebook in September 2022 and thereabouts when the relevant period that I was looking at ran from June 2021 to April 2022.

[9]Mrs Sillitoe agreed that she would remain with the claimant during the adjournment, and the claimant has had support from Mrs Sillitoe throughout today, helping her to focus on her impact statement and to remain calm and ready to answer her questions.

[10]After the adjournment the claimant confirmed she was ready to continue to give evidence. I heard oral evidence from the claimant on oath. She was a witness who was guarded in some of her responses, giving limited or partial answers on occasions and sometimes seeking to deflect the thrust of the question with an additional piece of information.

The Facts

[11]The claimant was diagnosed with Autism Spectrum Condition Asperger’s Syndrome at age 45. She had set up and grown a charity called CHAPS. She was its Managing Director on a salary of around £40,000 reporting to a Board of Trustees. She worked around 60 hours a week. She had a degree in leadership and management and a bookkeeping qualification. She had been prescribed low dose fluoxetine in 2018 to manage menopausal symptoms. In February 2021 she changed GP, moving to the Weaverham Surgery, and reported feeling stressed at that time. The claimant was still taking a low dose of fluoxetine.

[12]In June 2021 the events the claimant complains of as discrimination began. They can loosely be described as increased performance management. From July 2021 she was keeping diary entries, having to record how her time was being spent. She continued to attend work, run her home, look after herself and her daughter, though she was stressed and anxious about what was happening to her at work. She engaged less socially than she had done before and the problems at work and her feeling stressed by them, were beginning to affect her health.

[13]By October 2021, after a meeting at work about performance, the claimant became very unwell and went off sick. She consulted her doctor who recorded a stress-related problem. The entry said, “Chosen not to be in work since last Friday, problem with employer”. The doctor issued a fit note declaring her unfit for work from 8 October to 29 October 2021.

[14]On 15 October 2021 the claimant was prescribed the anti-anxiety medication propranolol. The claimant was unwell at this time. She was paying less attention than usual to washing and cleanliness of her home. She ignored correspondences that she received and she stopped cooking, managing on frozen food or takeaways for a while.

[15]Within the month (by 4 November 2021) the claimant was well enough to return to work. The doctor changed her medication. Although it was kept at the same dose, she was changed to a slow release form of propranolol so that she could manage the uptake of the drug throughout the day.

[16]On 2 December 2021 a performance review meeting took place with an outsourced HR person present.

[17]On 10 December 2021 the claimant was suspended on full pay facing allegations of bullying and victimisation of staff. This was devastating news to the claimant.

[18]In February 2022 the claimant again consulted her doctor who recorded (again), “Stress-related problem. Has been suspended from work”. The doctor did not change her medication and recorded that the claimant was able to take her dog for a walk, that knitting and craft helped her and she was referred for counselling. The claimant was at her lowest point at this time. She was withdrawn and detached from her family and from relationships. She felt unable to leave home and was tired and stayed on the sofa.

[19]On 21 April 2022 the doctor diagnosed mixed anxiety and depressive disorder and at that point increased the claimant's fluoxetine to 40mgs. The doctor recorded that the claimant was not sleeping, feeling sick, but was bright and able to joke on the phone, was taking her dog for walks and had good friends and support around her. On 26 April 2022 the doctor considered the claimant unfit for work. She remained signed off sick from 26 April 2022 until September 2022. The doctor referred the claimant for social prescribing, hoping to encourage her to engage more and get her to go to the gym. The sick notes were extended so that in the event the claimant remained off sick until around February 2023.

[20]The claimant had been dismissed on 19 April 2022. She made an application for benefits. In August 2022 she took out an insurance policy for a business that she intended to start called “Recycled Goodies”, and she cited in the application for that policy her role as a Carer. This related to paid work that she took as an assistant to a disabled person. The claimant started “Recycled Goodies” and began making products to sell and offering craft sessions from her home in early summer, June and July 2022.

[21]In November 2022 the claimant had an assessment for Universal Credit in which she described herself as being unable to mix with people; being unable even to answer the door to strangers who might call at the house; being anxious about delivery drivers coming to the home; being unable to get off the sofa, cook or look after herself.

[22]Later, in 2023 the claimant set up a catering business which she ran with a colleague from a local pub. Submissions Respondent’s Submissions

[23]I heard submissions from Mr Flood on the basis (in effect) that the burden of proof of the claimant had not been met in establishing that her condition met the test in section 6 of the Equality Act 2010. There were no medical records referring to the impact of autism at that time and the medical records revealed a clear picture of anxiety and depression and stress being the factors that were causing the symptoms the claimant was experiencing.

[24]Mr Flood also quoted the claimant's own disability impact statement and said that this ran contrary to the evidence that she was giving at Tribunal where she would have me believe that autism was causing the debilitating symptoms when in fact prior to the stressful events at work the claimant did not describe any debilitating symptoms of autism. Even if they go hand in hand (he submitted) they would not amount to “substantial” in law.

[25]Mr Flood invited me to reach conclusions about credibility issues with the claimant because of the position in her Universal Credit application and the position on Facebook, suggesting that they could not both be true at the same time. He invited the Tribunal to find that the claimant's account of the impact of the stress, anxiety and depression were a falsehood and any effect she was experiencing was exaggerated and was not in any event attributable to autism. Claimant's Submissions

[26]The claimant referred me to the National Autism Society, she quoted from its website and the Citizens Advice Bureau website about autism; she cited the Equality Act and in documentation she sent to the Tribunal also quoted not just the Equality Act but from guidance on the definition of disability contained in the Code to that Act. She was well prepared and well able to represent herself (with support from Ms Sillitoe) at Tribunal today.

The Law

[27]Applying the relevant law, the definition (everybody agreed) is contained in section 6 of the Equality Act 2010 which provides A person (P) has a disability if(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.” The section goes on to provide that any reference to a disabled person is reference to a person who has a disability. The word “substantial” is defined in section 212(1) as meaning “more than minor or trivial”.

[28]There are additional provisions about the meaning of disability in Schedule 1 to the Act. Under paragraph 5 of Schedule 1, “an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if(a) measures are being taken to treat or correct it, and

(b) but for that, it would be likely to have that effect.” Guidance

[29]Section 6(5) of the Act empowers the Secretary of State to issue guidance on matters to be taken into account in decisions under section 6(1). The current version dates from 2011. Section D of the guidance contains some provisions on what amount to normal day-to-day activities, and paragraph D3 provides: “In general day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. Normal day-to-day activities can include general workrelated activities and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents and keeping to a timetable or shift pattern.”

[30]However, paragraph D8 of the guidance goes on to make clear that some highly specialised work activities are not included in day-to-day activities; examples given are watch repair work and playing the piano to a high standard of achievement. The guidance also includes an appendix which sets out an illustrative and non-exhaustive list of factors which if experienced it would be reasonable to regard as having a substantial adverse effect. Those factors include the following: Difficulty in getting dressed, in toileting, incontinence, difficulties preparing meals because of for example inability to open cans or inability to follow and understand a simple recipe, difficulty eating; being unable to coordinate the use of cutlery or because of an eating disorder, difficulty going out of doors because of a phobia, physical restriction or learning difficulty……persistent general low motivation or loss of interest, difficulty operating a computer, inability to converse or give or follow instruction, confused behaviour, intrusive thoughts or delusions, persistently wanting to avoid people, significant difficulty taking part in normal social interaction, avoiding taking part in normal social activities, persistent distractability or difficulty concentrating.

[31]The long-term effect of autism was not disputed. Everyone agreed that autism is a lifelong condition, so the decision for me focused on the substantial adverse effect on ability to carry out normal day-to-day activities in that window from June 2021 to April 2022.

[32]I also had regard to Goodwin v Patent Office [1999] from the EAT which set out the factors that I must address sequentially:(1) Did the claimant have a mental or physical impairment?

(2) Did it affect the claimant’s ability to carry out normal day-to-day activities?

(3) Was it “substantial”?

(4) Was it long-term? (That was agreed in this case). Application of Law to Facts

[33]The claimant has not produced a letter of diagnosis. There was no written evidence of the descriptors of her autism or the impact of her autism on the claimant from any doctor. The claimant had moved GP surgery and told the Tribunal that she had been diagnosed by a Consultant Psychiatrist while under the care of her previous GP Practice. The records shown to the Tribunal just show that GP Practice accepting the diagnosis of autism in taking on the claimant from the previous Practice. The Tribunal accepts the claimant’s oral evidence that she has the impairment of autism and was diagnosed with it at age 45, prior to 2018.

[34]During the relevant period, June 2021 – April 2022, the claimant's medical records reveal consultations about work-related problems, work-related stress, anxiety and depression. Although autism is noted, it is noted as a pre-existing diagnosis and there is no suggestion in the record that the conditions the claimant was experiencing were linked to or products of autism. The express position is that the symptomatology is work-related. The claimant wanted me to accept that anxiety, depression and stress are a corollary of being autistic. That is not what the GP was recording. That is not the claimant’s own evidence in her impact statement or borne out by her achievements prior to being performance managed at work. She has not said I am always anxious, stressed, depressed so that I cannot do normal day to day activities because of my autism. The GP was recording expressly that these were work-related symptomatology.28. In particular, we can map the GP records against the timeline of the alleged acts of discrimination at work. I notice the coincidence of the claimant going off sick with that performance review meeting and then the GP consultation around the time of the suspension. Those things are recorded in the medical notes, the claimant told her doctor about the suspension and the disciplinary process.

29. The claimant submitted that GPs do not really know about autism, that they are not expert, and I reject that suggestion. They may or may not be autism experts, but they are experienced, and they record (really importantly) what the claimant says to them, so it gives us a contemporaneous record of what she was saying at the time and the impact on her at the time. The claimant was not saying “this is my autism, I am always like this”, she was saying “this is work-related stress”. In the relevant period (apart from a short absence in October 2021) the claimant was (until she was suspended in the December) able to remain in work. The chronology shows that the absence relates directly to the stressful work events, again supporting the position that it is work-related stress that causes a deterioration in health such that absence is necessitated. The claimant's evidence in her own impact statement was of her stress. She describes a desperate time that she was facing; that clear link between the work events and the impact on her of the stress is made out in her impact statement. She was undoubtedly unwell, but I find she has not established that it was the autism that was causing those symptoms she was experiencing that caused her to be unable to go to work, unable to function.

30. I have not been asked to assess if anxiety, stress and depression were substantial adverse effects on the claimant at that time because she has not relied upon them in her claim.

31. I turn now to how I found the claimant as a witness. I accept Mr Flood’s submission that the position as relayed to Universal Credit and as evidenced in oral evidence today (when the claimant accepted the veracity of her Facebook posts at that time) cannot both be true. I accept his invitation to find that the Facebook posts and the claimant's open oral evidence today, that she was able to set up the “Recycled Goodies” business, to create and run events at her home and to make products, market them, sell them at a range of locations she had not visited before, take orders online and deliver them, are the reality of the position. Whilst this fell outside the period under my consideration, it offered insight into the claimant’s veracity when describing her condition.

32. Whilst the claimant was undoubtedly unwell for part of 2021 into 2022 by reason of stress and anxiety she was, to her credit, seeking to engage, to manage her stress and to provide for her family. I find that the claimant overplayed the effects of her stress, anxiety and depression upon her at the time in her account to Universal Credit. I find that the effects that she was experiencing were attributable to events at work and properly recorded by the GP (as told to the GP at the time) as stress, anxiety and depression. During June 2021 to April 2022 the claimant was able to go to work (save for short periods of absence) wash and dress herself, run her household and look after herself and her daughter and use her phone and computer, engage in normal work interactions and social interactions though these reduced as she became more stressed.

33. The claimant submitted that she would not have become stressed, anxious or depressed at these events if she was not autistic, and in the absence of expert medical evidence to support that contention I reject that submission. It is not borne out by the claimant's medical notes. It is not borne out by the reality of her substantial academic and business achievements prior to her being performance managed at work. She achieved a qualification, set up and grew a charity as a person with autism prior to the events complained of. There is no evidence here that the stress that the claimant suffered was as a result of her autism, nor that the stress was worse for her as a person with autism than otherwise. The evidence points to stress as a reaction to performance management. 34. The claimant asked me to have regard to a range of sources, and I have looked at those sources, but it has not been necessary to take judicial notice of them. Everyone’s experience of autism is their own and it was for the claimant to tell me how her autism affected her. She did that, I have listened carefully to her, read her impact statements and looked at the contemporaneous records, and the medical notes. From those I have found that the effect of the autism was not substantial at the time.

[35]As that effect is not made out, the disability discrimination complaints now stand dismissed. EMPLOYMENT TRIBUNALS Claimant: Mrs J Garner Respondent: Cheshire Autism Practical Support Limited Refusal of Reconsideration Request Background to this application for reconsideration 1. A preliminary hearing to determine the claimant’s disabled status for the purposes of section 6 Equality Act 2010 was heard on 2 October 2023. The claimant was supported at that hearing by Dr Sillitoe, who was presented to the Tribunal as an expert support in autism, and the respondent was represented by Mr Flood, Counsel. 2. The decision of the Tribunal was that the claimant, who had autism, was not disabled by her condition at the relevant time. On 13 November 2023 the claimant made an application for Reconsideration of that decision. The Relevant Law 3. Rule 70 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 provides that a Tribunal may reconsider any judgment where it is necessary in the interests of justice to do so. 4. Rule 71 provides that an application for reconsideration shall be presented in writing and copied to all the other parties within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision as necessary. 4. Rule 72 provides that an Employment Judge shall consider any application made under Rule 71. Where practicable the consideration shall be made by the Employment Judge who made the original decision or who chaired the full Tribunal which made it. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked the application shall be refused. 5. A Tribunal dealing with an application for reconsideration must seek to give effect to the overriding objective to deal with cases fairly and justly contained within Rule 2 of the Regulations. This includes ensuring that the parties are an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense. 6. Consideration of whether reconsideration is “necessary in the interests of justice” allows the Tribunal a broad discretion which must be exercised judicially which means having regard not only to the interests of the party seeking the reconsideration but also to the interests of the other party to the litigation, and to the public interest requirement that there should be so far as possible finality in litigation. 7. An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 70). 8. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

in July 2016 where Elias LJ said that: “The discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.” 9. Similarly in Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

the EAT chaired by Simler P said in paragraph 34 that: “A request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” Application of law on reconsideration 9. The application was made on 13 November 2023 in writing and copied to the respondent. The claimant had made an application for written reasons on 23 October in response to a judgment sent to the parties on 9 October 2023. The Reasons were provided on 5 January 2024. The application was made prior to provision of the Reasons. 10. No representations on reconsideration have been received from the respondent. 11. The majority of the points raised by the claimant are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and made a determination. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. One such example of this, in the claimant’s submission is her failure to provide her original diagnostic report. In her 13 November 2023 letter the claimant says she did not realise that she should have provided the original report and she attaches the report of Ian Davidson Consultant Psychiatrist diagnosis 1 May 2014. Failure to provide this made no difference. The Tribunal accepted and it is specifically recorded in the Reasons at paragraph 33 that the claimant was diagnosed with autism prior to 2018. 12. In particular the claimant seeks to re-open findings about the impact of her autism on her ability to carry out normal day to day activities during the relevant period of the acts of alleged discrimination. Having read the application and all ancillary correspondences from the claimant from 13 November 2023 to today’s date including the Davidson report, the letters of support from Dr Fallon and the Reasons the Tribunal finds that there is nothing new that could not reasonably have been put forward at the hearing in relation to any of the matters raised in the application. The claimant said in her 13 November 2023 letter “my impact statement was dated 9 February 2023 so a lot has changed since then”. The Tribunal was considering the impact of her autism on her ability to carry out her normal day to day activities at the time of the acts of discrimination complained of, and not in the period after she brought her claim. 13. The principle that the claimant cannot seek reconsideration in order to relitigate disposes of almost all the points made by the claimant. However, there are some points that relate to the fairness of the hearing itself that she makes which the Tribunal takes care to address specifically. The Tribunal has gathered them up from her 13 November 2023 letter and subsequent correspondences because she had not put all of what might be considered to be her grounds for seeking reconsideration, in one place. 14. In her letter of 13 November 2023 the claimant described herself as in “autistic burnout” since June 2021. The claimant had provided an impact statement which was considered and was cross-examined on it against the timeline of alleged acts of discrimination. The implication for reconsideration is that she may still have been in “autistic burnout” on 2 October 2023. She says she was “so stressed I did not sleep for the week leading up to the hearing… was sick the night before and on the morning of the hearing …was in panic mode…. didn’t know I would be interrogated or that I would have to prepare a summation for the court …can’t remember any of the questions I was asked…. couldn’t process the questions…not able to consider the implications of my answers…felt like I had daggers in my back. 15. Litigation is stressful for everyone, and it is not uncommon for those without autism to describe feeling as the claimant says she felt in the run up to a hearing. The Tribunal has considered was the claimant so unwell that she could not give best evidence and on those grounds would it be in the interests of justice to reconsider the disabled status decision. The Tribunal finds it would not for the following reasons: Support and consultation 16. The claimant was supported by Dr Sillitoe and consulted as to how she was feeling, how her autism impacted her ability to participate and what adjustments would be needed. Adjustments 17. Paragraphs 4 and 5 of the Reasons refer to the adjustments that were consulted on and agreed with the claimant at both a ground rules hearing before EJ Howard on 28 June 2023 and at the outset of the 2 October hearing 2023. Equal Treatment Bench Book 18. At the hearing reference was made to the Equal Treatment Bench Book, the claimant was asked how her autism affects her and adjustments were put in place to support her with agreement of Dr Sillitoe. The Reasons record at paragraph 4 the detail of that discussion. Advocate’s Gateway 19. Specific reference was made at the hearing to the Advocate’s Gateway and Mr Flood agreed to signpost areas of questioning clearly, use short, non-tag questions, allow time for consideration of documents, which he did. Processing time 20. The claimant said in her letter of 13 November 2023 “I need time to process and consider my responses / the consideration of time was not given to me”. The Tribunal rejects her suggestion that time was not given to her in cross-examination. The claimant was given time in cross-examination to answer slowly and take time to think, consult her Impact Statement and consult documents if she wished to. The Tribunal recalls assisting her to feel comfortable about these quiet gaps by saying that it gave the judge time to catch up her note taking. Adjournment to look at documents 21. The claimant was given an hour at the start of the hearing, by agreement to look at documents that Mr Flood brought to the hearing. They were all her own Facebook entries, were not new to her and having had an hour, and been offered an adjournment, the claimant and Dr Sillitoe said that the claimant was ready to give evidence. This is dealt with in detail at paragraphs 7 to 10 of the Reasons. Advance notice of areas of cross-examination 22. Mr Flood for the respondent alluded to the Advocate’s Gateway. There was discussion of the appropriate preparation of the individual and in particular he made it clear to the claimant before she went out for an hour to look at the papers, that he was going to question her on the basis that she was exaggerating the impact of her condition on her ability to do normal day to day activities and that he was going to be saying that she hadn’t been wholly truthful in her application for benefits. The relevant factual findings are at paragraph 21 of the Reasons. The key point is that Mr Flood signalled to the claimant in advance of her break for an hour that this would be part of his questioning in cross-examination. The claimant knew before she gave evidence what was going to be asked of her and she had a break and agreed she was able to proceed. Flexibility in questioning 23. Mr Flood adopted a flexible approach to questioning, in breaking questions down into short questions, in allowing time for the claimant to find a document and read it, though there was little need to refer to documents in the cross examination, and in adapting questions. The Tribunal checked with the claimant during crossexamination that she was OK and slowed the process by reference to the judge’s note taking. Dr Sillitoe did not at any point interrupt the cross-examination or interject to request a break or any more support for the claimant. Needed assistance 24. The claimant said, for the first time, in her letter of 13 November 2023 “I am incapable of providing testimony without assistance…unable to function adequately to comply with disability laws”. The Tribunal rejects this assertion. There was a ground rules hearing, discussion on ability to give best evidence and adjustment at the outset of the preliminary hearing on 2 October 2023 and this was kept under review throughout the hearing. At no point did the claimant say she could not give evidence without assistance or even that she was struggling. The Tribunal found her to be a capable witness. The Reasons record that she was a witness who was able to give relevant answers, to put her case in response to questions and to deflect the thrust of a question with an additional piece of information. Did not give my best output in my application for reconsideration 25. By an email dated 19 January 2024, relating to case management matters in the claimant’s ongoing unfair dismissal and other money claims, the claimant said: “I don’t consider I gave my best output (in the application for reconsideration dated 19 November) due to my illnesses. I was very stressed the week before this date. Considering what I needed to say; spent several days working on the submission, and relapsed following the submission. It took another week of neglecting myself, family and the house before I was able to function adequately...I have hundreds of documents in evidence which are intertwined with the issues of disability discrimination and cannot be separated [from the UDL claim]”. 26. The Tribunal, in so far as the claimant says that her 13 November 2023 letter was not her best attempt at submissions in support of a reconsideration application, rejects the submission that a different or better put, reconsideration request would have resulted in reconsideration. For the reasons set out above the claimant is not entitled to re-litigate a point that went against her just because she thinks she could have put that request better. 27. Further, there was a hearing before EJ Benson on 22 March 2024 at which the claimant agreed that she does not and did not need an intermediary, said that she had complied with most of the case management orders in that part of her case made on 2 October 2023 and is ready to proceed to final hearing in her unfair dismissal complaint. The letters in support of the claimant 28. The Tribunal has had regard to the letter from Kathy Fallon a GP who is a friend of the claimant dated 23 January 2024. It is in effect a character reference and submission in support of reconsideration. Dr Fallon says, “I am very concerned that you have formed the opinion that her autism was not a substantial contributory factor to her anxiety and depression given all the information available about Jo personally and people on the autism spectrum in general”. The Tribunal had regard to the previous letter from Dr Fallon dated 24 July 2022, herself a former chair of trustees of the respondent charity and someone who had support from the claimant and the respondent for her own son. None of the content of either of these letters amounts to a reason to reconsider the decision. The claimant was not relying on anxiety and depression as a disability. Dr Fallon’s opinion, however helpfully volunteered, is not sufficient to overturn findings of fact made on oral evidence before the Tribunal. Absence of further medical evidence 29. The claimant said in a chase up letter dated 12 February 2024 “I wasn’t aware I needed to provide further medical evidence to substantiate my disability” Whilst medical evidence is relevant to a determination on disabled status the Tribunal notes that 1) the claimant adduced medical records and they were considered, her diagnosis was accepted and 2) her own oral evidence carried more weight as to the impact of her autism on her ability to carry out her normal day to day activities than those medical records. 30. In so far as there may be some overarching submission on reconsideration that all of the above taken together mean that the claimant was in any way incapacitated or not able to participate in the hearing on 2 October 2023 that contention is rejected. The claimant was identified as vulnerable in the sense of being a person with autism, anxiety and depression and adjustments were made with her consent and that of Dr Sillitoe. Conclusion 31. The claimant’s grounds for reconsideration amount to matters that were before the Tribunal and have been determined. It was for the claimant to tell the Tribunal how her autism affected her. She did that, the Tribunal listened carefully to her, read her impact statement and looked at the contemporaneous records, and the medical notes. From all of those it was found that the effect of the autism was not substantial at the relevant time. There is nothing new here that would affect or have affected the outcome. 32. In reaching the decision not to reconsider the Tribunal has had regard to the importance of finality in litigation for both parties and has considered the impact of a reconsideration determination either on paper or in person for the parties and the cost to which that would put both parties. 33. The Tribunal rejects the request for reconsideration on the ground that it is not necessary in the interests of justice as there is no reasonable prospect that any one of the grounds set out in the claimant’s application, or all of them taken together, could lead to the original decision being varied or revoked.

Introduction

[1]These proceedings arose from the claimant’s (Mrs Garner’s) employment as a managing director with the respondent charity (known as CHAPS) and her dismissal for reasons of conduct by the Trustees of CHAPS on 19 April 2022.

[2]Mrs Garner was the founder of the charity in 2010. It was incorporated in 2012 and from this point she was employed by CHAPS as its Managing Director. In 2018, she was diagnosed with autism which she believes explained several ongoing difficulties that she had been experiencing with work previously.

[3]Several issues arose concerning Mrs Garner’s relationship with colleagues and trustees in 2021. However, it was an investigation into allegations regarding various financial irregularities in 2022 while employed as Managing Director, which resulted in her dismissal.

[4]Mrs Garner presented a claim form to the Tribunal on 3 August 2022 following a period of early conciliation from 15 June to 4 July 2022. She indicated that her complaints were unfair dismissal, disability discrimination, notice pay, holiday pay, arrears of pay and other payments. The asserted disability condition was autism.

[5]The grounds of claim which accompanied that claim form focused primarily upon the background to Mrs Garner’s disability discrimination complaint. It did however, to a lesser extent, also address the other complaints that Mrs Garner was bringing in these proceedings and which have survived to the final hearing.

[6]The response was prepared by Mr Flood and presented to the Tribunal by CHAPS’s instructing solicitors on 16 September 2022. It resisted the claim arguing that Mrs Garner had been fairly dismissed by reason of her conduct, that they disputed she was disabled and, in any event, she had not been subject to discrimination because of her alleged disability.

[7]There has been considerable case management in this case and a Preliminary Hearing Case Management (PHCM), took place before Judge Leach on 10 November 2022. Following clarification of Mrs Garner’s claim, an amended grounds of resistance was permitted and this was presented on 12 January 2023.

[8]Following consideration being given to ground rules at a PHCM before Judge Howard on 28 June 2023, a preliminary hearing (PH), took place before Judge Aspinall on 2 October 2023. She determined that Mrs Garner did not have a disability within the meaning of section 6 Equality Act 2010 (EQA) at the material time and accordingly the disability discrimination complaint was dismissed. The other complaints however, remained and would proceed to the final hearing. Importantly, Judge Aspinall had an opportunity to consider Mrs Garner’s capacity to manage her claim and adjustments were discussed at the beginning of the PH and identified within the Note of PH produced, (pp108-9 of the bundle).

Issues

[9]The parties were informed of the list of issues which was attached to the Note of Preliminary Hearing of Judge Aspinall, (pp115-7 of the bundle). It is repeated in this section below. It is accepted that the Claimant was dismissed.

[11]Has the respondent shown the reason or principal reason for dismissal?

[12]Was it a potentially fair reason under section 98 Employment Rights Act 1996? The respondent says that the claimant was dismissed for misconduct.

[13]If so, applying the test of fairness in section 98(4), did the respondent act reasonably in all the circumstances in treating that reasons as sufficient to dismiss the claimant?

[14]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: a) The respondent genuinely believed the claimant had committed misconduct. b) There were reasonable grounds for that belief. c) At the time the belief was formed the respondent had carried out a reasonable investigation. d) The respondent followed a reasonably fair procedure. e) The dismissal was within the band of reasonable responses. Remedy for unfair dismissal

[15]Does the claimant wish to be reinstated to their previous employment?

[16]Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

[17]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.

[18]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.

[19]What should the terms of the re-engagement order be?

[20]If there is a compensatory award, how much should it be? The Tribunal will decide: a) What financial losses has the dismissal caused the claimant? b) Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? c) If not, for what period of loss should the claimant be compensated? d) 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? e) If so, should the claimant’s compensation be reduced? By how much? f) Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? g) Did the respondent or the claimant unreasonably fail to comply with it? h) If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

[21]What basic award is payable to the claimant, if any? Wrongful dismissal / Notice pay What was the claimant’s notice period? Was the Claimant paid for that notice period?

[24]If not, can the respondent prove that the claimant was guilty of gross misconduct which meant that the respondent was entitled to dismiss without notice? Unauthorised deductions

[25]Did the respondent make unauthorised deductions from the claimant’s wages and if so, how much was deducted? Evidence used

[26]Mrs Garner gave witness evidence and relied upon the following witnesses: a) Michelle Collard (CEO of CHAPS from January to September 2023). b) Jane Harris (director of grants for Steve Morgan Foundation). c) Anne-Marie Hoekstra (service user/supporter of CHAPS). d) Jennie Deus (service user/supporter of CHAPS). e) Marie McLaughlin (service user/supporter of CHAPS). f) Dr Kate Sillitoe (service user and former trustee of CHAPS). g) Jo Morlidge (service user and former CHAPS). Mrs Garner produced a lengthy statement which dealt with a range of matters relating to her employment, including grievances and relationships with the trustees and other employees working for CHAPS. There was little reference made to the actual dismissal and the fairness or otherwise of the Tribunal proceedings. Mr Flood not surprisingly, felt that his cross examination did not need to be extensive given the limited evidence relating to the dismissal and other complaints involving notice pay, wages and holiday pay.

[27]CHAPS called the following witnesses: a) John Fielding (investigating officer) b) Joanne Thomas (disciplinary hearing officer/Chair of Trustees) c) Leona Sasse (one of two trustees hearing appeal/trustee) I accepted Mr Flood’s application following the conclusion of the claimant’s witness evidence that Ms Thomas be recalled in order that she could answer a specific question. This arose from evidence given by Ms Harris when asked a supplemental question by Mrs Garner, regarding an absence of a spreadsheet when she attended several months following the dismissal of the claimant and which had not been addressed in her witness statement.

[28]On Day 2 of this hearing, Ms Thomas gave evidence in the morning and Ms Sasse gave evidence in the afternoon. The claim existing at the final hearing primarily involved unfair dismissal hearing. This meant the respondent’s witnesses gave evidence first. Day 2 ended early at 3:30pm, because Mrs Garner began to feel overwhelmed.

[29]On Day 3, Mr Fielding gave evidence which concluded the respondent’s case. Ms McLoughlin then gave evidence because she had limited time available followed by Mrs Garner. The remaining claimant witnesses were heard in the following order during the afternoon: Jane Harris, Jennie Deus, Anne-Marie Hoekstra, Michelle Collard, Joanne Morlidge and Dr Kate Sillitoe.

[30]Concerns raised by Mr Flood at the beginning of Day 3 that Ms Collard had ended her short period of employment as Chief Executive of the respondent during 2023 with an agreement which included a confidentiality clause. As this matter related to a witness rather than Mrs Garner as claimant, I simply made sure that Ms Collard was warned that this issue had been raised earlier by Mr Flood. However, she confirmed that she wished to give her evidence, which was completed very quickly with no cross examination from Mr Flood.

[31]While Mr Flood conducted limited cross examination of the claimant’s witnesses, he asserted that this was on the basis that the respondent did not accept the contents of those statements which had been provided.

[32]Documents were contained in a main hearing bundle of 2745 pages and consisting of the proceedings, numerous emails, investigatory and process related matters and policies and procedures as well as the schedule of loss and counter schedule of loss. There was some duplication of documents and a significant proportion of its contents were not relevant to the determination of the claim.

[33]It is unfortunate that the parties were unable to reduce the scale of the bundle before the final hearing took place as it added unnecessarily to the reading required on the first day. I acknowledge however, that Mrs Garner was unrepresented and was also concerned that the full history of events during the latter part of her employment were included. Indeed, Mrs Garner also provided an additional bundle of documents 76 pages and consisting of emails and messages, which were not significant in terms of my deliberation in this final hearing.

[34]Not surprisingly this substantial bundle combined with the numerous witness evidence meant that following an initial discussion with the parties, I needed to devote the remainder of Day 1 dealing with reading. Adjustments provided to the claimant concerning her participation as an unrepresented party with neurodiversity during the final hearing

[35]Consideration was given to Mrs Garner’s neurodiversity and previous adjustments discussed at the preliminary hearings before Judges Howard, Aspinall and Shotter. Primarily this provided for additional breaks as necessary and allowing additional time so that Mrs Garner could organise her thoughts in relation to evidence and cross examination.

[36]As it happened, Mrs Garner was able participate in the proceedings relatively easily. I often had to encourage her to take breaks every hour or so. There were some challenges required concerning the nature of her cross examination, the extent to which it remained focused upon the dismissal and matters under consideration in the list of issues. Like many unrepresented parties, Mrs Garner had an ongoing unhappiness concerning the way in which she was managed and which went beyond the complaints under consideration in these proceeding.

[37]I applied the overriding objective and the relevant principles explored in the Equal Treatment Bench Book concerning unrepresented and neurodiverse parties.

[38]While at times my interruptions of Mrs Garner’s cross examination of the respondent witnesses may have been frustrating for her, she did display a desire to question her witnesses beyond what was already provided within their statements. Nonetheless, I did allow her some latitude insofar as was proportionate and in the interests of justice. In particular, this involved time being allowed so that each of her witnesses could give evidence and to apply some flexibility so that she could ask limited supplemental questions. She explained that as some of the witnesses were also autistic, they may give lengthy answers which went beyond the closed question and answer that would normally be encountered. I was willing to allow some flexibility in this regard but on the basis that Mr Flood could object as appropriate and in relation to one matter, he could recall Ms Thomas as described above.

[39]There were occasions when I needed to encourage some progress within this final hearing. Moreover, occasional interventions were required to avoid the risk of disproportionate prejudice to the respondent and to ensure overall fairness. Accordingly, I insisted that the usual format take place concerning the examination of witnesses and at least on one occasion, I needed to explain to Mrs Garner that she could not return to cross examine Mr Fielding following the completion of cross examination, judicial examination and reexamination of the witness concerned.

[40]I was satisfied however, that Mrs Garner was provided with every opportunity to cross examine the respondent’s witnesses. I allowed a break between each of the main witnesses being called. I did ask Mrs Garner to reflect when she said that she had concluded her cross examination of each witness so that she could assess whether she had asked everything that she needed in relation to the list of issues. Findings of fact The parties and their relationship

Findings of fact

[41]The respondent CHAPS began as a small, unincorporated charity and was founded by the Mrs Garner in April 2010. It became an incorporated and registered charity with the Charity Commission from 6 November 2012 and from this point she became the charity’s Managing Director. This was the senior employed, leadership role and placed Mrs Garner in a position of significant responsibility.

[42]Mrs Garner had a background of working in jobs which involved accountancy skills and was familiar with using systems provided by the company Sage, (SAGE).

[43]Following her son’s diagnosis with Aspergers (which is an ASC), she established CHAPS with other parents in her locality who had children with ASC. She was heavily involved in running of CHAPS and the charity’s income increased significantly from 2014 until 2022.

[44]As a registered charity, governance was understandably of paramount importance and CHAPS was supervised by a number of Trustees whose numbers and names varied from 2012 until the 2022. Many of the people who served as Trustees became involved with CHAPS because of their experience of having autism or having children or other family members who had been diagnosed with ASC. Despite being a voluntary role, it placed the holder under significant responsibility. Inevitably, it could be very time consuming as CHAPS was a growing charity with increasing resources, expanding its service provision with a need to recruit employees and more volunteers. In 2022, the relevant Trustees were Joanne Thomas as Chair, Leona Sasse and James Eager.

[45]I understood that there had been a greater number of Trustees in office during previous years, but several had resigned during 2021. This would undoubtedly have placed significant workload pressures upon the 3 remaining Trustees in 2022.

[46]Mrs Garner was Managing Director of CHAPS from 2012 until 19 April 2022 when she was dismissed following a disciplinary process. I accepted that she was Managing Director of a relatively small organisation with fewer support staff available than might exist with say, one of the larger regional or national charities. Accordingly, her remuneration was not comparable with that received by Managing Directors or CEOs at these larger organisations. Nonetheless, it was a responsible job, being a leadership role and one which required good supervision and management of organisational and financial matters.

[47]There appeared to be a challenge faced by Mrs Garner as CHAPS grew in that she needed to devote herself to the more mundane but essential administrative tasks which ensured good governance of this charity. A tension appeared to exist between these activities which would normally be carried out by a Managing Director and the therapeutic and supportive activities of service users which were understandably the reasons for Mrs Garner creating CHAPS in the first place. This seemed to result in her being ‘spread thinly’, when some of the more frontline services such as running an on site café, should have been delegated to more junior colleagues.

[48]There was no doubt during this hearing that many people who had been involved with CHAPS, retained a great deal of respect for Mrs Garner and were dismayed about what had happened in relation to her dismissal. It is certainly the case that Mrs Garner’s has demonstrated a commitment to supporting people with autism in the part of Cheshire where she lives and farther afield. This is commendable and with a public sector which has suffered funding restrictions for many years, UK society relies hugely upon the third sector and the determination and passion of people like those involved with CHAPS including Mrs Garner.

[49]While I acknowledge the considerable support given from the character witnesses who were called to support Mrs Garner in this case, the list of issues related to decisions made by the Trustees to subject her to a disciplinary process resulting in her dismissal by reason of conduct and related wages type complaints. Accordingly, Mrs Garner’s witnesses did not contribute materially to the evidence that I needed to consider in these finding of fact in relation to unfair dismissal, breach of contract, wages and holiday pay. Nonetheless, it is to Mrs Garner’s credit that the witnesses who provided witness evidence in support of her case, were not only willing to provide signed statements, but were also willing to attend the hearing and give evidence under oath. This is something that happens rarely in an Employment Tribunal hearing of this nature. The dismissal of the claimant

[50]The decision to dismiss was made by Ms Thomas who is the Chair of Trustees. She explained in a letter dated19 April 2022, (p1341-8), the grounds of the dismissal and that the reason for reaching this decision was that she believed Mrs Garner had committed acts of gross misconduct relating to: a) ‘Potential Fraud – Avoiding VAT on laptops’. The making of a declaration to an IT company in January 2021 that CHAPS did not have to pay VAT when four laptop computers were purchased. b) ‘Potential Fraud – Use of a SAGE licence that is not registered to CHAPS’. The use of licences for SAGE business accounts and payroll systems for a number of years, which actually belonged to another company not related to CHAPS. c) ‘Poor financial governance of the charity’. General financial mismanagement over a number of years involving access to company bank accounts, not invoicing to service providers sufficiently quickly and poor management involving access to SAGE. The investigation process and the evidence which resulted in the decision to dismiss

[51]CHAPS has a disciplinary procedure which applies to all of its employees, (pp1555-8). When Ms Taylor became aware of allegations involving Mrs Garner, she raised the matter with Claire Bentley who is CHAPS’ HR consultant. She knew Mr Fielding had knowledge to carry out disciplinary investigations and he convincingly explained that his familiarity with SAGE IT systems made him an obvious candidate to act as investigating officer. He was instructed by her on 25 February 2022, (p1571).

[52]Mrs Garner was already suspended when the investigation which led to her dismissal began. She was already subject to a suspension concerning allegations which had been made against her involving another member of staff and which ultimately was not resolved by the time her dismissal took place.

[53]The issue relating to the laptops and the question of whether VAT was payable arose from an order made by Mrs Garner for 4 laptops for CHAPS from a company called Ballicom. The invoice produced by Ballicom under invoice 304325440 charged the net figure of £2,160.00 with VAT being recorded as £0.00, (p225).

[54]The second page included a VAT Reliefs for Disabled People – Eligibility declaration by a charity, which was signed by Mrs Garner on 7 January 2021 and ticked the box entitled ‘Goods which are being supplied for a disabled person’s personal or domestic use’, with the handwritten details, ‘4 LAPTOPS FOR ADULTS WITH AUTISM’, (p226-7). On the following page there is a clear warning called ‘Note to customer’, and which says, ‘If you are in any doubt as to whether you are eligible to receive goods or services zero-rated for VAT you should consult the HMRC website or telephone the VAT Disabled Reliefs Helpline on 0300 123 1073.’

[55]I did not hear any evidence from Mrs Garner that she made an enquiry with HMRC at time of the order with Ballicom. She appeared adamant that because the laptops were ordered for people with autism, they were zero rated for the purposes of VAT. Indeed, the messages which were sent between management on 7 January 2021, clearly confirmed that the intended primary purpose for the laptops was for CHAPS staff and not service users or as a consequence of Access to Work arrangements, (pp230-1).

[56]Mrs Garner asserted during her disciplinary investigation with Mr Fielding that the laptops were for employees with autism, (p1253). However, when questioned by Ms Thomas during the disciplinary hearing, she revised this position, conceding that only two of the intended recipients of the laptops had autism, but arguing that the others while without a formal diagnosis, ‘…were on the spectrum.’ (pp1335). She also argued that by ordering laptops for working from home, this could constitute personal use.

[57]During the disciplinary hearing, Mrs Garner sought to attribute responsibility for determining whether VAT is payable with Ballicom as supplier rather than on herself as the Managing Director of CHAPS ordering the equipment. Ultimately, she said that there was ‘No intention to defraud – no gains for me’, which appeared to relate to her belief that she was saving CHAPS money rather than making the declaration for her own personal, financial advantage., (p1326). Ms Thomas made enquiries with Ballicom on 12 April 2022 which confirmed that Mrs Garner had made the declaration stating the order was VAT exempt, (p1338).

[58]While in her evidence, there was an assertion made by Mrs Garner that the original Ballicom invoice would have been signed off by the Trustees, this was an argument that was only advanced during these proceedings in preparation for the final hearing and it was not an argument raised during the disciplinary process, where she claimed that as CHAPS is a ‘…health institution…which provides health care, outpatient care centre or specialist care centre’, the laptops could be zero rated. Ms Sasse disputed that the allegations were correct when she gave her evidence to the Tribunal. On balance this appears to be correct. From the available documents which consider this particular issue, there does appear to be failure to take responsibility on the part of Mrs Garner and she was searching for arguments which would avoid her accepting the blame for what was a clear declaration made as Managing Director on behalf of CHAPS.

[59]The issue relating to SAGE arose from an email that Mrs Garner sent on 21 February 2022 to the Trustees where she claimed expenses for the purchase of a new SAGE subscription. She explained that ‘We haven’t historically paid for the accounting software as I have provided it’, (p1045). Both Ms Taylor and Mr Eager sought further clarification and Mrs Garner that the subscription originally derived from her own business Abacus Bookkeeping which existed before CHAPS had been established. The subscription was in her own name and its provision avoided the need for CHAPS to contract directly with SAGE, (pp:1041-6).

[60]During the investigation meeting, Mrs Garner gave conflicting information to Mr Fielding concerning the provenance of the SAGE account. She initially said the licence related to her name, but this explanation evolved as the discussion progressed and she stated that it belonged to her former employer, Anne Allen Associates. When Ms Allen retired, Mrs Garner said that she inherited the access to the licence, but it was not changed into her name, (pp1253-4).

[61]At the disciplinary hearing, it was explained that Mr Fielding had been able to discover that the SAGE account which Mrs Garner had used for CHAPS was registered to a company called ‘Global Material Handling Limited’ and which was a third party business. It had not connection to either Mrs Garner or CHAPS, (p1327). Mrs Garner did not dispute this explanation and attributed this licence holder to a mistake and suggested that the blame rested with her former employer, Ms Allen, (p1330).

[62]Consequently, the concern for Ms Thomas was that Mrs Garner had used a licence belonging to another registered owner and despite not changing the licence details with SAGE and provided a series of different explanations which she blamed upon others rather than herself.

[63]The poor financial governance allegations related to distinct charges and were identified by Mr Fielding as being: a) The SAGE log in procedures were installed so that instead of the 5 separate user accounts to be logged in, which identified who was logged on what activities they were responsible for, anyone logging on would be recorded as using a single ‘MANAGER’ log in. This would make auditing more difficult as it would not be easy to identify who had accessed SAGE and what they had done due to same generic log in being used. b) Two trustees had not been removed as signatories from CHAPS’ bank account sufficiently quickly following their resignation from this role. While the initial instructions to the bank had been given by Mrs Garner, these had not been followed up to check they had been complied with. c) Invoices had not been presented in good time meaning that the financial year end was short of funds which should have been billed and paid by that date. Mrs Garner believed her suspension may have impeded this matter being progressed but that other staff could have dealt with invoices. Mr Fielding believed that responsibility rested with the CEO.

[64]Mr Fielding produced an investigation report on 6 April 2022, which confirmed that Mrs Garner had been accompanied during her interview and that he had also interviewed the three Trustees, Ms Thomas, Ms Sass, and Mr Eager, on 3 March 2022. He noted that Mrs Garner confirmed she was experienced and knowledgeable in relation to bookkeeping. He ‘filtered the concerns and allegations’ and in relation to the three allegations, determined that there was a case to answer. He noted in terms of capability, there was an absence of ‘self reflection’ on her part and no indication that she was aware that she might require support. Relevant documents were enclosed as appendices, (1570-1575).

[65]There had been some suggestion by Mrs Garner that Mr Fielding was not impartial in his role as investigator and suggested that his familiarity with Ms Bentley and his appointment as a Trustee in 2023 indicated that he would be biased against her. I could not accept that this was the case and not surprisingly, Ms Bentley wanted to instruct an external investigator whom she knew about and whom she had confidence in their background knowledge. Mr Fielding was only appointed as a Trustee in 2023 following the dismissal and I heard no convincing evidence that suggested this appointment was connected with him carrying out the investigation in a way which was favourable to CHAPS.

[66]I concluded that he behaved in a way which was consistent with an investigating officer during a disciplinary process, had no prior involvement with the matters under investigation and he gave credible and reliable evidence. The disciplinary hearing

[67]An invitation was then sent to Mrs Garner on 1 April 2022 by Ms Bentley and which provided details of the allegations made against her following the conclusion of the investigation. She was invited to a disciplinary hearing on 5 April 2022 at the St John’s Church Centre and it was explained that Ms Thomas would conduct the hearing and Krystyna Peterson would attend as witness and note taker. The relevant documents were enclosed that would be used at the hearing, Mrs Garner was advised that she could be accompanied and that if the allegations were proven, her employment might be terminated without notice, (p1297-8).

[68]Mrs Garner wanted to bring a companion to the disciplinary hearing and as they were not available until 8 April 2022, the hearing was postponed until that date and confirmed in an email sent to her on 4 April 2022, (p 1314). She was cautioned however, that if she failed to attend, the hearing might take place in her absence.

[69]The hearing took place on the rearranged date of 8 April 2022 and in addition to Mrs Garner, her companion Helen Bright was present along with the hearing decision maker, Ms Thomas and note taker, Ms Petersen, who produced a typed note which was included within the bundle. The hearing began at 1:40pm and ended with 15 pages of notes having been recorded, (pp1323-7). Mrs Garner was recorded as being able to answer the allegations. It concluded with Mrs Garner arguing that she felt she was being treated differently from other members of staff. Ms Thomas confirmed she would reflect and provide her decision following Mrs Garner’s week’s holiday which was to begin the next week.

[70]The dismissal letter as described above, was sent to Mrs Garner on 19 April 2022. Each of the allegations was found to have been proven and an explanation was provided for each decision, (pp1341-8).

[71]In relation to the laptops and VAT allegation, she found that Mrs Garner knew the intended use for the laptops were not purchased as being with assistive technology to support disabled members of staff and were not for domestic or personal use. As such, she believed that Mrs Garner: ‘…knowingly deceived the supplier in order to gain goods without paying the requisite VAT. Your defence that this was an honest mistake is not acceptable due to the clear wording of both the relevant guidance and the VAT declaration you completed clearly stating the usage was for the personal use of disabled adults with autism.’ ‘The fact that you did not personally gain from this transaction does not make the act any less serious – particularly considering your position as MD [presumably meaning Managing Director] in public office.’ She concluded by stating that she had made reference to the disciplinary policy and was satisfied that these actions amounted to gross misconduct, ‘…specifically “theft, fraud, falsification of Company records or any dishonesty involving the Company, its employees, customers or suppliers.”’

[72]In relation to the SAGE allegation Ms Thomas recorded that Mrs Garner had admitted using a licence that applied to a third party and her concern was that SAGE licences were not transferrable or shareable and can only be used by the organisation that purchased them. The result was that CHAPS had been using a licence which is did not own and without any authority to do so, for a period of more than 8 years. While she noted that Mrs Garner was of the belief that CHAPS could not afford to pay for a licence itself, Ms Thomas concluded that her actions were fraud as services had been obtained by deception. She referenced the same section of the disciplinary policy as before and also added that it could also amount to gross negligence meaning that her actions amounted to gross misconduct.

[73]The final allegation was also considered proven with particular concerns being that a bank account containing substantial sums of money remained open for access by two former Trustees for a period of more than two years and yet Mrs Garner had failed to check to see that her instructions to the bank had been followed up. She noted Mrs Garner’s experience of bookkeeping her leadership role and while she acknowledged that other members of staff might be involved in the relevant processes, it was Mrs Garner who was ‘ultimately responsible’. Ms Thomas also regarded the management of SAGE to be very poor and that Mrs Garner had left CHAPS vulnerable to misuse and fraud. She also said that these actions amounted to gross misconduct and made reference to the part of the disciplinary policy relating to gross negligence.

[74]Ms Thomas concluded by observing Mrs Garner’s ‘…strong background in bookkeeping…that you have knowingly put the charity and its reputation at risk, through negligent and underhand practices. That you stated you were doing this to save money for the charity is not a valid defence.’ Consideration was given to the possibility of imposing a lesser sanction than dismissal, but the reasons given in the above conclusion, she found that dismissal was the appropriate sanction. Dismissal was with immediate effect as being attributed to Mrs Garner’s conduct and took place on 19 April 2022 when the decision was communicated to her. She was notified of her right to appeal within 5 working days and that notice should she decide to appeal, should be in writing and sent to either Ms Sasse or Mr Eager. It was confirmed that an independent person would then be appointed to hear the appeal.

[75]Mrs Garner expressed concern that Ms Thomas was not impartial or unbiased and based her decision upon the wrong evidence. Moreover, she argued that Ms Thomas ‘…failed to consider the range of options available and I believe gross misconduct was overly punitive given the circumstances.’

[76]Considering Mrs Garner’s senior role with CHAPS, I considered it appropriate that Ms Thomas as Chair of Trustees was the appropriate person to hear the disciplinary hearing. Ms Thomas confirmed that consideration was given by the Trustees and Ms Bentley to the recent grievance brought by Mrs Garner against the trustees. However, they concluded that as an independent HR consultant had carried out the investigation and the decision on 14 March 2022 had been not to uphold any of the allegations, it was appropriate for Ms Thomas to be the Chair.

[77]I accepted that Ms Thomas had gone to some length to check that she was able to assume this role and she confirmed she took account of the respondent’s disciplinary procedure when reaching her decision. She also allowed Mrs Garner to fully participate in the disciplinary hearing and did not rush her decision upon its conclusion. Ms Thomas explained in her evidence that she considered Mrs Garner’s role as the founder of CHAPS and her length of service. But she also balanced this against her role as Managing Director and her considerable experience. Moreover, she felt that the way Mrs Garner had behaved during the disciplinary process was lacking in honesty and her experience meant that she should have known what was being done was wrong. She acknowledged that Mrs Garner believed that her goal was to save CHAPS money, but this could not justify the actions, especially as these could cause reputational harm to the charity.

[78]Ms Thomas also asserted that Mrs Garner’s neurodiversity was also considered but concluded that she had a history of being able establish and build up CHAPS and was not persuaded that this might have impaired her judgment.

[79]Ms Thomas’ evidence concerning the disciplinary process and the reasons for her decision to dismiss were not subject to significant challenge by Mrs Garner during her cross examination. I found her to be a credible witness. On balance, I accepted that she reached her decision to dismiss as she described in her witness evidence. The appeal against dismissal

[80]Mrs Garner decided to appeal Ms Thomas’ decision and her letter was dated 26 April 2022, (p1354-7). Her appeal letter was lengthy and identified the following grounds: a) Potential fraud – avoiding VAT on laptops: arguing that the sanction too severe or disproportionate. b) New evidence has come to light that should be investigated: arguing that the sanction too severe or disproportionate to the misconduct. c) The sanction was inconsistent with one imposed for similar misconduct committed by another employee: comparing her treatment with Natalie Cotterall. d) There was unfairness or bias amongst the original decision makers: in particular Ms Thomas was tainted by a poor personal relationship with Mrs Garner. e) The employer has not taken into account a previously exemplary disciplinary record.

[81]Ms Thomas instructed Sharon Griffiths who is an independent Human Resources Consultant to produce an investigation report. Ms Thomas informed her that as she had determined the disciplinary hearing which resulted in Mrs Garner’s dismissal, she could not take any further part in the disciplinary process. The report that Ms Griffiths produced was to be provided to the two other Trustees, Ms Sasse and Mr Eager who would review her findings from the appeal investigation and determine the outcome of the appeal. However, Ms Griffiths was to carry out an investigation which could make recommendations within her report. What appeared to actually happen was that Ms Griffiths conducted both an investigation and appeal hearing with Mrs Garner and then reported to the Trustees so that they could reach a decision.

[82]Mr Eager notified Mrs Garner of Ms Griffiths’ appointment on 4 May 2022 which was followed by a formal introduction from Ms Griffiths the next day. A meeting was then arranged with Mrs Garner at a neutral venue and which took place on 11 May 2022. It was 2 ½ hours in length and Mrs Garner was accompanied by her friend Helen Bright, who was allowed to contribute and support her. The procedure and the grounds of appeal were discussed and this appeared to be the actual hearing of the appeal that she had brought.

[83]The appeal report was produced in an initial draft and the final version was concluded once Mrs Garner had been able to review her interview notes. A range of additional documents were also referred to within the report which Ms Griffiths had considered. Ms Griffiths was not available to give evidence during the final hearing due to ill health, but her investigation was not subject to criticism by Mrs Garner and indeed she was concerned that Ms Sasse and Mr Eager did not accept all of her recommendations, (pp1488).

[84]In terms of the first ground of appeal, Mrs Garner was recorded as remaining of the view that the laptops qualified for a VAT exemption, the responsibility for clarifying this rested with Ballicom, that the Trustees signed off the purchase, that Ms Catterall was responsible and that there was no intention to defraud HMRC. A detailed consideration was included within the report of Mrs Garner’s arguments as well as HMRC guidance on the matter. Ms Griffiths acknowledged that Mrs Garner believed she was acting in a good cause to save CHAPS money, but that her behaviour was not excusable and could cause a risk to the reputation of CHAPS. She did not accept that others bore responsibility for the declaration that the laptops were VAT exempt and Ms Griffiths believed that the original decision of Ms Thomas correctly identified gross misconduct for which dismissal could be a reasonable response.

[85]Consideration in the appeal report then moved on to the matter of the SAGE usage by CHAPS. It was noted that Mrs Garner referred to new evidence that she had submitted to Ms Thomas an hour before the dismissal letter was sent to her on 19 April 2022 and which she believed was not relevant to the decision that she had reached. Ms Griffiths considered all of the available but importantly, she felt the explanation of a prior agreement between Mrs Garner and Ms Allen concerning permission to use SAGE lacked credibility and she should have been aware that such an arrangement would breach SAGE’s terms and conditions of use. Additionally, she did not accept that the Trustees were aware of the arrangement and had tacitly agreed to the use of SAGE in this way. The additional evidence which was submitted late was found to have been considered by Ms Thomas and correctly deemed it to be irrelevant to the decision reached.

[86]Ms Griffith acknowledged that Mrs Garner was ‘acting in a good cause, viewed the use of unlicensed software as a harmless and excusable means of saving the charity money.’ But she concluded that this raised ‘serious questions about Jo’s [Mrs Garner’s] judgment and decision making.’ Once again, reference was made to the risk of reputational harm to CHAPS.

[87]Other matters were also considered including the suspension, the original disciplinary proceedings for bullying, the offer of assistance from former Trustees to the current Trustees and the actions of the current Trustees following the dismissal, (p1520). Ms Griffiths did not accept that the suspension excluded Mrs Garner from CHAPS and limit the investigation. She considered it unfortunate that the earlier disciplinary process had not been formally concluded but balanced this against the Trustees being volunteers with many demands on their time and noted that complexity of multiple grievances which had been brought by Mrs Garner. She noted that the former Trustees had offered to be informal mediators and that this predated the disciplinary process related to the matters which led to the dismissal. She noted that there were communications by Ms Thomas on Facebook which Mrs Garner and Ms Bright but could not conclude that they were aimed at Mrs Garner.

[88]She also concluded that there was no inconsistent treatment between Mrs Garner and Ms Cotterall and that even if allegations which had been made by Mrs Garner to the Trustees had taken place as alleged, they ‘…would not be in any way comparable in seriousness with Jo’s own actions and would not therefore warrant a finding of gross negligence/gross misconduct’ or that she acted vindictively, (pp1515-9).

[89]In terms of the ground of appeal that there was unfairness or bias on the part of Ms Thomas as dismissing officer, Ms Griffiths recorded the efforts made by her to ensure fairness and concluded that ‘faced with an inevitably difficult situation, Joanne [Ms Thomas] acted professionally and impartially’, [p1517].

[90]Ms Griffiths briefly dealt with the ground of the appeal that Ms Thomas had failed to take account of an exemplary record she noted that’…it would be misleading to describe Jo’s record as exemplary”. She accepted that there were no written warnings on her record, however, but that while this was the case, ‘given the seriousness of the disciplinary findings, which include at least one count of gross misconduct, I believe that Jo’s existing disciplinary record was irrelevant’, (p1519).

[91]I did notice that Ms Griffiths found the report difficult and acknowledged she was ‘not necessarily comfortable with viewing this as a straightforward gross misconduct scenario.’ She felt that while Mrs Garner’s actions relating to VAT and SAGE met the definition of fraud, she felt the use of this term to be ‘a highly emotive word…that describing Jo’s actions as fraudulent has perhaps been unhelpful in that it presumes a deliberate, cynical form of criminal activity. The inference has agitated Jo [Thomas] greatly and perhaps allowed her to dismiss Joanne’s [Mrs Garner’s] conclusions without any real reflection about why the concerns Joanne had with her conduct were, in fact, legitimate’, (1527).

[92]This was a lengthy report with a detailed consideration of the grounds of appeal. There was a summary and conclusions and there was no criticism of the way in which the disciplinary procedure had taken place. Ms Griffiths paid particular attention to the failure on the part of Mrs Garner to accept responsibility for her actions and ‘sought to deflect blame onto others, including a direct report (Natalie Cotterall), the Trustees, the charity’s accountant Mark Greave, and supplier Ballicom. Given that she held a senior and high profile position within the organisation, I find this concerning’, (p1526).

[93]She emphasised that ‘As the organisation’s Managing Director, Jo was however employed in a position of trust, with an additional burden of responsibility to lead by example. I think it also important to note that, as founder, Jo was the charity’s figurehead and ambassador; I suspect that for many of the charity’s financial dealings should be completely transparent and above board’.

[94]It was important to consider the appeal report from Ms Griffiths in detail as this was the document that was provided to Ms Sasse and Mr Eager. However, Ms Sasse gave credible and reliable evidence regarding the Trustees’ role in the appeal and the time spent considering and deliberating upon the evidence that was before them. This was not an appeal where they chaired a hearing and instead this was carried out by Ms Griffiths with her detailed report being provided to them so that they could reach a decision. This was contained within their joint letter which was sent to Mrs Garner on 13 June 2022. The letter summarises the outcome of the disciplinary hearing and recorded what had been considered at the appeal hearing before Ms Griffiths, (pp1529- 1535).

[95]In relation to each of the grounds of appeal considered, the Trustees concluded as follows: a) VAT on laptops – They were satisfied that Mrs Garner’s actions were deliberate and that she knew the declaration made to Ballicom concerning VAT was misleading and for the gain of the charity, but which would cause a financial loss to HMRC. This amounted to gross misconduct justifying dismissal. b) New evidence concerning SAGE licence – This did not change the conclusions reached by Ms Griffiths, the behaviour amounted to gross misconduct. c) Sanctions Inconsistent with actions towards other Employees – The Trustees concluded that this was irrelevant as Ms Catterall was not the Managing Director and was accused of matters relating to dishonesty or fraud. d) Unfairness or bias amongst the decision makers – They agreed with Ms Griffiths’ conclusion and that it was appropriate for Ms Thomas to act as disciplinary hearing officer. It was noted that four trustees had resigned and three of them had referred to issues with Mrs Garner’s conduct, leaving a limited cohort of Trustees. e) Previously exemplary disciplinary record – The Trustees acknowledged the record but were satisfied that Ms Thomas had taken this into account. f) Disciplinary action for victimisation and bullying allegations has not concluded - The Trustees did not consider this allegation to be relevant as it did not relate to the matters under investigation in this disciplinary process. They noted that CHAPS was a small charity with limited resources. They also noted that the third ground of poor financial management determined by Ms Thomas at the disciplinary hearing was not part of the appeal allegations and was therefore not considered. They concluded that the appeal was therefore concluded and the decision was final.

[96]I did consider that the procedure adopted by the Trustees concerning the management of the appeal was slightly unusual in that the investigation and the hearing were outsourced to a third party independent HR advisor, namely Ms Griffiths. However, it is important to note that CHAPS as has already been explained above was a small charity with a depleted number of Trustees. Being volunteers, the demands of this role would usually have to be balanced against other professional and income generating activities. Mr Fielding gave credible evidence concerning his brief experience of being a Trustee of CHAPS during 2023 and that he could simply not deal with the demands it placed upon him when balancing them against his other commitments.

[97]The remaining Trustees did the best they could under very difficult circumstances and nonetheless were at pains to ensure that due process took place in relation to Mrs Garner. As is often the case, an employee under investigation can bring numerous grievances and there was the unresolved bullying disciplinary process. However, Ms Thomas clearly took into account the need to be impartial, Mr Fielding was instructed as an independent investigator and then for the appeal, Ms Griffiths conducted a commendable piece of work.

[98]Taking into account the numerous pressures that they faced, it could have been very easy for the appeal panel of Ms Sasse and Mr Eager when faced with the notes of the appeal hearing and report produced by Ms Griffiths to simply ‘rubber stamp’ her conclusions. However, I accept that they took a great deal of time to review the grounds of appeal and the outcome of the investigation and reached a decision based upon their own conclusions and they managed the appeal appropriately. Other complaints

[99]It is also necessary to briefly consider findings in relation to the other secondary complaints which have been brought by Mrs Garner.

[100]The complaint of wrongful dismissal involves a different legal test to that which is applied in relation to unfair dismissal and that will be described below in the section of this reserved judgment and reasons which considers the relevant law. Mrs Garner asserts that she was entitled to 12 weeks pay in respect of notice which amounts to (£587 x 12) = £7,413.

[101]Mrs Garner was dismissed without notice on 19 April 2022 following the decision of Ms Thomas at the disciplinary hearing. In principle, she was therefore entitled to argue that CHAPS did not meet its obligation to give her paid notice before her employment came to an end.

[102]For the purposes of this complaint however, I would refer to the findings of fact made above in relation to the decision to dismiss. I accept that based upon the available evidence, Mrs Garner did act in a way which amounted to gross misconduct and which justified her summary dismissal by CHAPS.

[103]I accepted Mr Flood’s submission that the complaint in respect of wages was unclear although it has been a complaint which had been identified since the commencement of her Tribunal claim. Limited further particulars have been provided by Mrs Garner in relation to this complaint. However, considering the schedule of losses and the information provided within Mrs Garner’s witness statement, I will deal with each item in turn.

[104]Final wages – incorrect calculation, (pp1440-2). Ms Thomas is alleged to have used the incorrect form of calculation for Mrs Garner’s final payslip, resulting in an underpayment of £937.81 gross. Ms Thomas provided an explanation in her email to Mrs Garner dated 6 May 2022 which noted her monthly average pay was £3062.50. To take account of the variation in calendar days and working days each month was to achieve an hourly rate which was rounded up to £18.85. Her employment ended on 19 April 2022 and her final salary was calculated over the period of 26 March to 19 April 2022 which amounted to 17 working days. As she had 6 leave days booked, only 11 working days remained making £1555.13, which was calculated based upon an hourly rate of £18.85 hours over 82.5 hours, (p1443). This was what was paid by CHAPS and Mrs Garner did not challenge Ms Thomas’ evidence during the final hearing. On balance, I accept that Mrs Garner was paid correctly.

[105]Time off in lieu – 70 hours not paid amounting to £1,319.50 gross, (p408 and p143). The identified documents referred to a noted of what appeared to be time spent on tasks on 26 to 30 July 2021 and a chronology of events relating to that period. Mrs Garner gave no meaningful evidence in relation to this item. Ms Thomas asserted that TOIL did not form part of Mrs Garner’s contract and in the absence of evidence from her and challenge of Ms Thomas in cross examination, this complaint is not proven.

[106]That CHAPS did not reimburse Mrs Garner for £115.20 for the purchase of SAGE software in October 2021 which she believes she was miss sold as it was unsuitable for the charity. There was little evidence advanced concerning this matter but any monies owed for this item do not fall within the ambit of an unlawful deduction from wages complaint. As submitted by Mr Flood, is a claim for expenses which would have to be pursued as a civil claim.

[107]In her updated schedule of loss provided later than her final submissions on the morning of 3 May 2024, she acknowledged that the ‘Otter deduction’ was removed as well as the payments lost relating to birthday gifts and Christmas bonus. It also makes reference to other complaints not included within the February 2024 schedule of loss, which were not raised during the hearing and which the respondent was unable to consider before the evidence was concluded. This was in respect of two unpaid bank holidays which remained outstanding following the termination of employment in the sum of £235.00 and an Illegal deduction of salary since September 2021 making a gross sum of £2031.22. The holiday pay complaint is considered below, but the illegal deduction of wages has been submitted too late during these proceedings and it would not be in the interests of justice to consider this matter as it should have been identified at the beginning of the final hearing.

[108]There is also a complaint brought in respect of holiday pay and there is no dispute that Mrs Garner had taken 6 days annual leave between the period of 26 March 2022 and 19 April 2022 when her employment ended. The CHAPS holiday year period ran from April to March which is typical of many organisations as it reflects the financial year that they operate under. Little evidence was provided by Mrs Garner concerning this matter, but Ms Thomas had included relevant evidence in her statement and this was not challenged by Mrs Garner during her cross examination of her.

[109]In Ms Thomas’ email dated 6 May 2022, she confirmed that having checked both SAGE and the Gov.uk website, Mrs Garner had used all of her annual leave entitlement during the 2021/22 leave year and had no leave entitlement remaining by 31 March 2022. As she was only employed for a short period during the 2022/23 leave year from 1 April to 19 April 2022, her accrued annual leave entitlement amounted to 1.5 days. This was included within her final payslip and nothing further is payable to her in respect of annual leave entitlement that was untaken at the effective date of dismissal.

Law

[110]I agreed with Flood in his closing arguments that the law concerning unfair dismissal relating to the potentially fair reason of conduct is well established and straightforward. Nonetheless, it is important that the law is set out below as well as that relating to the other complaints of wrongful dismissal/notice pay, wages and holiday pay.

[111]Part X of the Employment Rights Act 1996 (‘ERA’) deals with complaints of unfair dismissal. Section 94 of the ERA confirms that an employee has a right not to be unfairly dismissed.

[112]Under section 98(1) of the ERA, it is for the employer to show the reason for the dismissal (or if more than one the principal reason) and that it is either a reason falling within section 98(2) or for some other substantial reason of a kind such as to justify the dismissal of the employee holding the position he held. A reason relating to conduct is a potentially fair reason falling within section 98(2).

[113]The reason for the dismissal is the set of facts or the beliefs held by the employee which caused the employer to dismiss the employee. In determining the reason for the dismissal, the Tribunal may only take account of those facts or beliefs that were known to the employer at the time of the dismissal; see W Devis and Sons Ltd v Atkins

1977 ICR 662

[114]Under section 98(4) of the Employment Rights Act 1996, where the employer has shown the reason for the dismissal and that it is a potentially fair reason, the determination of the question whether the dismissal was fair or unfair depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and must be determined in accordance with equity and substantial merits of the case.

[115]When determining the fairness of conduct dismissals, according to the Employment Appeal Tribunal in British Home Stores v Burchell

1980 ICR 303

, the Tribunal must consider a threefold test:a. The employer must show that he believed the employee was guilty of misconduct;

b. The Tribunal must be satisfied that he had in his mind reasonable grounds upon which to sustain that belief; and

c. The Tribunal must be satisfied that at the stage at which the employer formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.

[116]However, it is not for the Tribunal to substitute its own decision as to the reasonableness of the investigation. In Sainsburys Supermarkets v Hitt

[2003] IRLR 23

the Court of Appeal ruled that the relevant question is whether the investigation fell within the range of reasonable responses that a reasonable employer might have adopted.

[117]The requirement for procedural fairness is an integral part of the fairness test under section 98(4) of the Employment Rights Act 1996. When determining the question of reasonableness, the Tribunal will have regard to the ACAS Code of Practice of 2015 on Disciplinary and Grievance Procedures. That Code sets out the basic requirements of fairness that will be applicable in most cases; it is intended to provide the standard of reasonable behaviour in most cases. Under section 207 of the Trade Union & Labour Relations (Consolidation) Act 1992, in any proceedings before an Employment Tribunal any Code of Practice issued by ACAS shall be admissible in evidence and any provision of the Code which appears to the Tribunal to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

[118]In Taylor v OCS Group Ltd

[2006] IRLR 613

, the Court of Appeal stressed that the Tribunal’s task under section 98(4) of the Employment Rights Act 1996 is not only to assess the fairness of the disciplinary process as a whole but also to consider the employer’s reason for the dismissal as the two impact on each other. It stated that where an employee is dismissed for serious misconduct, a Tribunal might well decide that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as sufficient to dismiss the employee. Conversely, the Court considered that where the misconduct is of a less serious nature, so the decision to dismiss is near the borderline, the Tribunal might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee.

[119]Indeed, defects in the original disciplinary hearing and pre-dismissal procedures can be remedied on appeal. It is not necessary for the appeal to be by way of a re-hearing rather than a review but the Tribunal must assess the disciplinary process as a whole and where procedural deficiencies occur at an early stage, the Tribunal should examine the subsequent appeal hearing, particularly it procedural fairness and thoroughness, and the openmindedness of the decision maker; see Taylor v OCS Group Ltd

[2006] IRLR 613

CA.

[120]In respect of certain claims, such as unfair dismissal and breach of contract, Section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 provides that where an employer or employee has unreasonably failed to comply with the Code of Practice, it may, if it considers it just and equitable in all the circumstances to do so, increase or reduce compensation awards by up to 25% (this does not apply to any Basic Award for Unfair Dismissal).

[121]The Polkey principle established by the House of Lords is that if a dismissal is found unfair by reason of procedural defects, then the fact that the employer would or might have dismissed the employee anyway goes to the question of remedy and compensation reduced to reflect that fact. Guidance as to the enquiry the Tribunal must undertake was provided in Ms M Whitehead v Robertson Partnership UKEAT 0331/01 as follows:(a) what potentially fair reason for dismissal, if any, might emerge as a result of a proper investigation and disciplinary process. Was it conduct? Was it some other substantial reason, that is a loss of trust and confidence in the employee? Was it capability?

(b) depending on the principal reason for any hypothetical future dismissal would dismissal for that reason be fair or unfair? Thus, if conduct is the reason, would or might the Respondent have reasonable grounds for their belief in such misconduct?

(c) even if a potentially fair dismissal was available to the Respondent, would he in fact have dismissed the Appellant as opposed to imposing some lesser penalty, and if so, would that have ensured the Appellant’s continued employment?

[122]Section 122(2) of the Employment Rights Act 1996 provides that where the Tribunal finds that any conduct of a Claimant before the dismissal was such that it would be just and equitable to reduce the amount of the Basic Award, the Tribunal must reduce that amount accordingly.

[123]Section 123(6) of the Employment Rights Act 1996 provides that where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the Claimant, it must reduce the amount of the compensatory award by such proportion as it considers just and equitable.

[124]The Tribunal must award compensation that is just and equitable. Even if the loss arising from the dismissal is substantial, the Tribunal can still award no compensation if it would be unjust or in equitable for the employee to receive it. This might be the case where acts of misconduct discovered after the dismissal means that it would not be just and equitable to award compensation; see W Devis & Sons Ltd v Atkins

[1977] IRLR 314

. Wrongful dismissal

[125]The Employment Tribunals Extension of Jurisdiction Order 1994 provides that proceedings for breach of contract may be brought before a Tribunal in respect of a claim for damages or any other sum (other than a claim for personal injuries and other excluded claims) where the claim arises or is outstanding on the termination of the employee’s employment.

[126]A claim for notice pay is a claim for breach of contract; Delaney v Staples

1992 ICR 483

HL.

[127]In Neary v Dean of Westminster

[1999] IRLR 288

, it was held that conduct amounting to gross misconduct justifying summary dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee in his employment.

[128]In cases of wrongful dismissal, it is necessary for the Respondent to prove that the Claimant had actually committed a repudiatory breach of contract. See: Shaw v B & W Group Ltd

UKEAT/0583/11

. Unlawful deduction from wages

[129]Section 13 of the Employment Rights Act 1996 (‘ERA’) provides that a worker has the right not to have their employer make an unauthorised deduction from their wages.

[130]The exceptions are where a deduction is required or authorised by a statutory provision or a relevant provision of the worker’s contract or where the worker has previously given in writing their agreement to the making of the deduction.

[131]Section 14 ERA provides that section 13 does not apply where the deduction is made by the employer to reimburse an overpayment of wages. Holiday pay

[132]Regulations 13 and 13A of the Working Time Regulations 1998 (‘WTR’) provide that a worker is entitled to annual leave in each leave year, (4 weeks and 1.6 weeks respectively).

[133]Regulation 13(2) WTR, provides that a worker’s leave year begins on a) On such date during the calendar year as may be provided for in a relevant agreement: or b) Where there are no provisions of a relevant agreement which apply, the date will be (for all employment beginning after 1 October 1998), on the date which that employment begins and each subsequent anniversary of that date.

[134]The word ‘calendar year’ is interpreted by regulation 2 WTR as meaning ‘…the period of twelve months beginning with 1st January in any year’.

[135]Leave may not normally be carried over into a subsequent leave year, unless there is agreement between the parties or where it was not reasonably practicable to take the leave as a result of the effects of the coronavirus in accordance with regulation 13(10) WTR as amended.

[136]Regulation 30 WTR, provides workers with the right to bring a complaint to the Tribunal regarding (amongst other things), breaches of rights under regulation 13 and 13A.

Discussion

[137]There was no dispute that in her role as Managing Director of CHAPS, Mrs Garner was an employee and having commenced her employment with the charity in 2012, she had accrued more than 2 years continuous employment at the effective date of her dismissal on 19 April 2022.

[138]There was also no dispute that Mrs Garner was dismissed following the decision made by Ms Thomas as dismissing officer on 19 April 2022, in a letter which was sent to her and it is understood she was aware of the decision from that date. The decision was made summarily which means that it was made without notice.

[139]The respondent CHAPS has maintained that Mrs Garner was dismissed by reason of her conduct, which is a potentially fair reason under section 98(1) ERA 1996.

[140]The basis of the disciplinary investigation carried out by Mr Fielding, the decision of Ms Thomas and ultimately the decision of the appeal panel, maintained that the reason for the decision to dismiss was one of gross misconduct. Indeed, Ms Thomas confirmed that she had referred to the CHAPS disciplinary procedure when considering the nature of allegations made against Mrs Garner and which she considered proven. She identified relevant examples of conduct which could constitute gross misconduct and was satisfied that the 3 allegations were proven and that they fell within the relevant categories.

[141]During the appeal process, Mrs Garner only raised grounds of appeal in relation to the laptop VAT and SAGE licence issues and not the more general allegation of poor financial governance. However, Ms Griffiths during the investigation and hearing and the Trustees supported by the convincing evidence of Ms Sasse, confirmed that it was reasonable to conclude that gross misconduct had taken place.

[142]I did consider the question raised by Ms Griffiths during the appeal about Mr Fielding’s reference to the Fraud Act 2006 and the criminal definition of fraud perhaps distracting Ms Thomas’ consideration of whether or not gross misconduct had taken place. I did consider whether there was evidence available which suggested that Ms Thomas had in mind other reasons for Mrs Garner being taken through an employment process and whether perhaps the real reason behind the decision to dismiss was something other than conduct such as capability.

[143]However, I noted that Ms Thomas had identified the concerns initially with HR and had concerns that conduct was in issue. The attitude of Mrs Garner throughout this disciplinary process was one of unwillingness to accept personal responsibility despite being the Managing Director and corporate leader in relation to her failures. Moreover, her evidence was confused and contradictory and appeared to be evasive. The way in which she sought to blame others and Ms Thomas was explicit in considering her actions appearing to be ‘deceitful and dishonest’. Moreover, while there was a lack of responsibility being taken in relation to VAT, Ms Thomas identified an underlying belief on the part of Mrs Garner that seeking to avoid payment of VAT and using a third party’s SAGE licence was in the best interests of CHAPS as it saved them money. These were quite reasonably considered as actions which were ‘wholly wrong’ and they served not only to cause reputational harm to Mrs Garner, but also to CHAPS.

[144]Ms Thomas reached her decision following a proper investigation by an independent HR investigator Mr Fielding. While his report was criticised by Mrs Garner for being concise, I was satisfied that it properly considered the allegations identified and made reasonable recommendations resulting in a case to answer. Ms Thomas nonetheless properly considered the issues having heard from Mrs Garner at the disciplinary hearing and her decision that there was gross misconduct was reasonable.

[145]Ms Griffiths did acknowledge that there were a few difficulties with the disciplinary investigation in her appeal investigation report but noted that they were faced with a number of grievances being brought by Mrs Garner and a limited number of Trustees being available. Nonetheless, the disciplinary process and the decision to dismiss were not considered fundamentally flawed.

[146]I would agree that this is the case and considering the limited resources of CHAPS as a charity, that it was the Managing Director who was the subject of the investigation and their use of external HR advisors as appropriate, the Trustees behaved appropriately and managed their limited resources as reasonably as they could. Overall, the procedure used was a fair one with Mrs Garner being notified of the action in writing, an investigation taking place to establish the facts and which Mrs Garner could attend, a formal disciplinary hearing where she could be accompanied and an opportunity to appeal being allowed. Additionally, the appeal process itself although slightly unusual in format, was extremely thorough and was far from a perfunctory exercise. Indeed, in many ways although it was an appeal based on grounds of appeal rather than a rehearing, it afforded Mrs Garner ample opportunity to correct any shortcomings in her participation at the disciplinary hearing before Ms Thomas.

[147]The decision to dismiss was based upon 3 related allegations involving financial irregularities and which could all be considered gross misconduct. Ms Thomas clearly considered whether she should stop short of dismissal and explore other possible lesser sanctions. She considered Mrs Garner’s good record and her role in founding CHAPS. She also took into account the impact of her neurodiversity. However, she noted the extent of the misconduct, Mrs Garner’s senior, leadership role, her previous experience of management of financial matters and her failure to accept responsibility for her actions and the potential damage to the reputation of CHAPS concerning good governance, the proper payment of tax and the use of properly licensed software.

[148]I therefore find that dismissal was a sanction within the range of reasonable responses to an employer. It may well have seemed a harsh decision to Mrs Garner, especially considering her history with CHAPS. However, it is not my role to substitute my view for that of the dismissing officer and I must conclude the dismissal was fair.

[149]I did consider the question of Polkey and the possibility that the dismissal was procedurally unfair. I have already explained that the decision to dismiss the claimant was fair by reason of her conduct. The process was fair and while Mrs Garner was already subject to a suspension for the unresolved bullying complaint, she was informed of the new process relating to financial irregularities and the specific allegations. Suspension was reasonable considering the financial management issues. Although there were difficulties concerning who should hear the disciplinary hearing and the appeal hearing, the decision was carefully considered and the risk of unfairness was properly managed using external advisors. Indeed, there was clear evidence of recognition on the part of the Trustees who were confronted by a Managing Director who was causing concern, that they needed to ensure the disciplinary process remained fair and impartial. On balance, this was something that they achieved and they followed their disciplinary process.

[150]For the avoidance of doubt, had the disciplinary process suffered from unfairness (which is not the case), the background of this case would have meant that had a fair process been followed, the nature of the matters under investigation and that they were clearly attributable to Mrs Garner, means that a fair dismissal would have been achieved within a short period following the effective date of termination and by no later than 19 June 2024.

[151]It is not necessary to consider contributory fault given my finding regarding the fairness of the dismissal. Had there been a problem with fairness however (which is not the case), I would have been compelled to conclude that Mrs Garner’s conduct was objectively culpable and blameworthy and caused (or at least contributed) to her dismissal. In these circumstances, it would have been just and equitable to reduce the awards for unfair dismissal by 75%. For the avoidance of doubt however, this is a hypothetical consideration and my remains conclusion that the dismissal was fair. Breach of contract

[152]Mr Flood correctly explained that I must apply a different legal test when determining whether the complaint of wrongful dismissal/breach of contract succeeds.

[153]In my findings of fact above, I did deal with this complaint separately and concluded that considering the information contained within the decision letter of Ms Thomas which gave notice of the dismissal and accepted that Mrs Garner acted in a way which amounted to gross misconduct and justified her summary dismissal.

[154]Accordingly, this complaint must fail. Unlawful deduction from wages

[155]I would refer to the findings of fact concerning the items asserted by Mrs Garner in her schedule of loss which had been identified at the beginning of this final hearing. It is not necessary to repeat those findings of fact, other than to say that Mrs Garner failed to provide evidence which persuaded me that she had suffered an unlawful deduction from wages contrary to section 13 ERA 1996. Holiday pay

[156]I would refer to the findings of fact concerning this matter and my consideration of Ms Thomas’ evidence. I must conclude that Mrs Garner received the holiday pay for untaken annual leave entitlement when her employment ended and this complaint must fail.

Conclusion

[157]Accordingly, I must make the following judgment in relation to the complaints brought by Mrs Garner: a) The complaint of unfair dismissal brought under Part X Employment Rights Act 1996 is unsuccessful which means that the claimant was fairly dismissed. b) The complaint of breach of contract/wrongful dismissal is not well founded which means that this complaint is unsuccessful. c) The complaint of unlawful deduction from wages contrary to section 13 Employment Rights Act 1996 is not well founded which means that complaint is unsuccessful. d) The complaint seeking payments in respect of untaken accrued annual leave entitlement at the date of termination contrary to regulations 13 and 13A Working Time Regulations 1998 is not well founded which means it is unsuccessful.

[158]I recognise that Mrs Garner will be unhappy with the outcome of this final hearing and this is understandable for the reasons discussed in the findings of fact and identified within the appeal.

[159]However, I would add that my decision is focused upon the issues relating to the fairness of the dismissal and the related complaints contained within the list of issues above.

[160]While it is unfortunate that her employment ended in the way that it did, the Trustees of CHAPS behaved appropriately in reaching the decision that they did, they did recognise Mrs Garner’s significance as the founder of CHAPS and her previous good record. Nonetheless, it is essential that the duty of organisations and people to pay taxes is followed and that the correct licensing procedures for IT products are followed. Charities can only remain viable when their finances are not only well managed but are also seen to be well managed with good governance.

[161]Although it is not directly relevant to my consideration of the issues in this case, there was clear evidence of Mrs Garner’s of devotion to supporting people with autism and their family and increasing awareness of this disorder which is finally being better understood by society following a long history where support and empathy was significantly lacking. It is to her credit that she not only worked to support her family and friends, but also established the charity which became the respondent CHAPS.

[162]It is unusual for so many witnesses to attend to give evidence in support of Mrs Garner as a claimant in an unfair dismissal claim. While I could not accept that their evidence was relevant to the issues I had to consider, it is nonetheless to Mrs Garner’s credit that those witnesses spent the time giving evidence to support her.