[1]The claimant’s claim that she was unfairly dismissed because the reason or principal reason for her dismissal was one falling within s.100(1)(e) of the Employment Rights Act 1996 fails[2]The claimant’s claim that she was wrongfully dismissed in breach of her contract of employment succeeds.[3]The respondent is ordered to pay the claimant the net amount of £250 as compensation for wrongful dismissal.
REASONS
[1]The claimant brought claims of unfair dismissal and wrongful dismissal.[2]The claimant was represented by her friend, Mrs Asif. The respondent was represented by Mr Hart. The Judge, the parties and witnesses attended the hearing in person apart from Ms McKay who attended by CVP videolink.[3]There was an agreed bundle of documents consisting of 231 pages. All the witnesses had provided written statements.[4]The claimant’s first language is Urdu. We had the benefit of an Urdu interpreter, Mr Ahmed, throughout the hearing. The Tribunal is very grateful to him for his services. He translated not only the claimant’s evidence but the whole of the proceedings for the claimant and I am satisfied that as a result she was able to understand and take a full part in the hearing. The Issues in the case[5]At the start of the hearing we clarified the issues in the case. Case No. 2413992/2020 2[6]The claimant brings a complaint of automatically unfair dismissal on health and safety grounds. She had said that her claim was based both on s.100(1)(a) and 100(1)(e). However, after a brief discussion the claimant through Mrs Asif confirmed that she had not been a designated person within the meaning of s.100(1)(a). The automatically unfair dismissal claim was agreed to be based only on s.100(1)(e).[7]The claimant had originally also brought a claim of ordinary unfair dismissal. That was because she had in practical terms started working for the respondent on 10 May 2018 which meant she had carried out the same role for more than two years before she was dismissed on 26 May 2020. However, the respondent said that it only became her employer on 1 July 2019. Prior to that she had been employed by GI Group Recruitment Limited (“GI”) as an agency worker. The contractual documentation in the bundle for the hearing appeared to reflect that.[8]With Mr Hart’s consent, at the start of the hearing I explained to Mrs Asif that although the claimant had in practice been doing the same job for two years, the question for the Tribunal was who her employer had been during that period. I explained that if the claimant wanted to claim that the time she spent employed by GI should count towards her continuous employment with the respondent I would need to understand why that was said to be the case. I pointed out that the written contracts in the bundle appeared to show that her employer had changed in 1 July 2019 from GI to the respondent so that her continuous employment with the respondent started from that date.[9]I confirmed that the automatic unfair dismissal claim would proceed regardless of the length of service but that the legal test would be different. The only question would be what the reason or principal reason for dismissal was. If it was not the reason in s.100(1)(e) the unfair dismissal claim would fail even if the process carried out in deciding to dismiss was unfair or the dismissal was for another reason, even a “bad” reason. I confirmed that the wrongful dismissal claim would go ahead even if the ordinary unfair dismissal claim was withdrawn. I confirmed that the wrongful dismissal claim did not require a minimum length of service with the respondent.[10]After a short break Mrs Asif confirmed that the claimant was no longer seeking to argue that she had been continuously employed for two years and so was able to claim “ordinary” unfair dismissal.[11]We agreed that meant the issues I needed to decide on liability were:(a) Was the claimant dismissed? It was accepted by the respondent that she was dismissed without notice. Unfair dismissal(b) What was the reason, or principal reason for the dismissal? Was it, as the claimant maintains, in circumstances of danger which the employee reasonably believed to be serious and imminent, she took (or proposed to take) appropriate steps to protect himself or other persons from the danger or to take appropriate steps to communicate these circumstances Case No. 2413992/2020 3 to her employer by appropriate means? If so, her dismissal will be automatically an unfair dismissal. If not, her unfair dismissal claim will fail. In assessing this, are the criteria in s100(1)(e) made out? (i) Did the claimant believe there were circumstances of serious and imminent danger? (ii) Was that belief reasonable? Wrongful dismissal(c) Was the claimant in fact guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract The hearing and the evidence[12]The hearing took place over two days. On the first day we clarified the issues in the case. After doing so I took time to read the evidence. I heard evidence from the claimant on the afternoon of the first day. For the respondent I heard evidence from Mrs Elizabeth Orme (Human Resources Advisor) at the end of the afternoon on the first day who was not cross examined but answered some questions from me. On the morning of the second day I heard evidence from Mr David Britain (Bakery Manager and Dismissing Officer) and from Ms Heleina McKay (Business Unit Manager and Appeal officer) who were cross examined and answered my questions.[13]The respondent had proposed to call two other witnesses. The first was Daniela Costea, whose evidence was not needed because it related only to the question of the claimant’s continuity of employment. The second was Mrs Rhea Shazhad who had acted as interpreter for the claimant at the two disciplinary hearings and at the appeal hearing. Her evidence was limited to confirming that she had accurately interpreted at those hearings. For the claimant, Mrs Asif confirmed that evidence was not challenged so Mrs Shazhad was not called to give oral evidence. Findings of Fact
Credibility
[14]I found the claimant to be a credible witness and her evidence to be reliable when it came to the events on the 23-26 March 2019 which are at the heart of this case. In contrast, there were inconsistencies between the versions of events on those days set out in the written statements which formed the basis of the disciplinary action against her. Donna Condliffe, Suzie Stanner and Tracey Parker’s statements expressed their uncertainty about when events had taken place and what had happened. The key statement was that from Wendy Birch which is an email which is 5 lines long. The earliest of those statements were given 6 weeks after the event (7 May 2020) and some 2 weeks after that. Although Mr Hart suggested there were some inconsistencies in the answers the claimant gave at her disciplinary hearing, I accept the claimant’s explanation for those apparent inconsistencies. Case No. 2413992/2020 4 Where there is a dispute of fact between the parties, I prefer the claimant’s version of events about what happened on 23-26 March 2020.[15]The claimant worked for the respondent on a line making cakes. She was initially employed via an agency but from 1 July 2019 was directly employed by the respondent.[16]The claimant had come into work on 27 February 2020 but had collapsed at work due to low blood pressure. She was off sick for the remainder of that day and for the 28 February 2020. She was then on holiday for three weeks.[17]She returned to work on 23 March 2020. Suzie Stanner conducted a return to work interview. The return to work form completed at that interview confirms the claimant was fit to work. Although Ms Stanner in her statement dated 15 June 2020 said that the claimant coughed during that return to work interview, I prefer the claimant’s evidence that she did not. Her evidence is corroborated it seems to me, by Ms Stanner having ticked the box on the return to work form (p.97) to say that the claim was not suffering from a cold, cough, sinus infection or fever. Given that the interview took place during lockdown it also seems to me implausible that Ms Stanner would simply have allowed the claimant to go back to work on the line (which is what she did) if the claimant had coughed at the return to work meeting.[18]On 26 March 2020 the claimant took her second break at around 11.00am. She had not been feeling unwell when she came to work but by 11.00am she had a runny nose which she was having to wipe regularly. During her break she went to talk to Donna Condliffe, her supervisor, to ask her what she should do. Although the claimant was conscious of COVID-19, I find that she did so not because she was concerned that she had COVID-19 symptoms but because she was aware that she was making cakes and was not certain she should continue to do so given that she was having to blow her nose regularly. Ms Condliffe’s response was that she would speak to Tracey Parker (her line manager) and let the claimant know what to do next. In the meantime, however, she advised the claimant to return to the line.[19]About 20 minutes later, Ms Condliffe approached the claimant on the line and asked her to go to speak to Tracey Parker in her office. The claimant met Ms Parker on the way down to her office and so they had the conversation in the corridor. Ms Parker approached the claimant and said, “Donna has told me you have a runny nose” and the claimant confirmed that her runny nose had started since she come into work. Ms Parker told the claimant to go home and quarantine for 14 days.[20]While the claimant and Ms Parker were speaking, Ms Birch, a Bakery Manager (so senior to Ms Parker), came alone the corridor and asked what had happened. Ms Parker started explaining the claimant’s symptoms and Ms Birch said to the claimant “don’t you know the COVID-19 symptoms”. The claimant confirmed that she did[21]The claimant then went home and self-isolated for 14 days. The claimant returned to work on 9 April 2020 and continued in her role until 18 May 2020. On that day she was invited to a disciplinary hearing. The invitation letter (pages 107-108) said that the purpose of the meeting was to discuss that the claimant had breached health and safety rules as she had “come on site unwell with COVID-19 Case No. 2413992/2020 5 symptoms on 26 March 2020”. Although the letter says that the meeting is on “Tuesday 18 May 2020” it is accepted that that should be a reference to Tuesday 19 May 2020.[22]On 19 May 2020 the claimant attended a disciplinary hearing conducted by Mr Britain, a Bakery Manager, so of equal seniority to Ms Birch. The claimant was handed a “statement” from Ms Birch which consisted of a six line email dated 7 May 2020 (p.104). In it, Ms Birch said that the claimant was “outside my office and told me she had fever and she was actually coughing”. I find that that is not an accurate description of what happened. I accept the claimant’s evidence that she never said that she had a fever nor was she coughing. Ms Birch went on to say that she asked the claimant whether she felt like that when she got up that morning for work and reported that the claimant had said “yes”. Again, I find that is not an accurate record of the conversation between Ms Birch and the claimant. I prefer the claimant’s evidence that she told Ms Birch that she had a runny nose and that had started after she came to work. Ms Birch’s statement went on to say that the claimant was asked whether she understood that she should not come on site if she had a cough or fever and she had confirmed that she understood that. I accept that that part of the conversation did happen.[23]There was also a statement from Suzie Stanner. Ms Stanner’s statement said that the claimant coughed during her return to work interview. I find that is not accurate. It is contradicted by the form filled by Ms Stanner which was ticked to say that the claimant did not have a cough. Ms Stanner’s statement said that “a few days later” which must be a reference to 26 March 2020) Ms Condliffe brought the claimant to her saying she was unwell and then she took her downstairs to speak to Wendy Birch. That is not an accurate record of what happened. I prefer the claimant’s evidence that Ms Stanner played no part in events on 26 March.[24]I note that Ms Birch’s statement was given some six weeks after the events and that Ms Stanner’s statement was given over a week after that.[25]The disciplinary hearing on 19 May was attended by Mr Britain, the claimant, Ms Orme (an HR adviser) and Mrs Shahzad, who acted as an interpreter for the claimant. During that first disciplinary meeting, the claimant confirmed the version of events on 26 March 2020 as I have recorded above. She confirmed that she did not speak to Suzie Stanner nor was she involved on 26 March. She also confirmed that what she said was that she had a runny nose not a fever, and that she did not have a runny nose when she came into work. Mr Britain decided to adjourn the meeting to investigate further.[26]By an invitation letter dated 21 May 2020 the claimant was invited to a reconvened disciplinary hearing on 26 May. In the gap between the two hearings Mr Britain had gathered further evidence. There was an email statement (five lines) from Ms Parker. That was dated 20 May (page 111). It said that on 26 March when she had been approached by “the charge hand” from the claimant’s line and told that the claimant was not feeling well, Ms Parker had gone to the line and asked the claimant what was wrong. Ms Parker’s evidence in her email was that the claimant had said that she had a temperature but had just started feeling like that. Ms Parker said that she had taken the claimant to her office and spoken to Ms Birch and “asked again what was wrong and when [the claimant] had started feeling like it and then she was sent home”. That email does not record the claimant’s answer to the Case No. 2413992/2020 6 question of when she had started feeling unwell nor what symptoms she was experiencing.[27]On 21 May 2020 Ms Condliffe had given a statement saying that she could not remember the exact date but recalled the claimant approaching her to say that she did not feel well. She said she had then “sent her to Suzie” and was then informed she had been sent home (page 112).[28]There was then a further handwritten note of a conversation between Mr Britain and Ms Condliffe. The note records a series of questions put by Mr Britain and Ms Condliffe’s answers. When asked what the claimant had actually said with regards to her symptoms, Ms Condliffe had said she could not really remember, “she just said she was unwell”. In answer to which manager she had referred the claimant to, Ms Condliffe said “Suzie”, but that she did not hear anything else.[29]Ms Stanner had also provided a second statement (page 106). It said that she could not remember on what day the claimant came to see her in the office. She did say that remembered being present around Ms Birch’s office when the claimant was there but “whether it was me or possibly Tracey she had first spoken to”. She said that all she remembered was Ms Birch asking the claimant why she had come into work. Ms Stanner did say that she mentioned to Ms Birch that the claimant had coughed during her return to work but went on to say that “it was possible eight weeks ago: my memory is terrible”.[30]The reconvened hearing took place on 26 May 2020 with the same participants as the previous hearing. The claimant maintained throughout that she had told Ms Condliffe that she was not feeling well and that her nose was running. Mr Britain told her that Ms Birch’s statement said that the claimant had told Ms Britain she had a fever. In brief, I find that at that hearing Mr Britain preferred the evidence of the written witness statements to the claimant’s evidence. He seems to have given particular weight to Ms Birch’s “statement”. At the meeting he also said that he could not understand why the claimant had self-isolated for 14 days if she had not in fact had COVID symptoms on 26 March. The claimant sought to explain that she had been told to self-isolate by a manager and therefore had done so. During the hearing the claimant attempted to phone the lady who worked next to her on the line who could confirm that when she had come into work she was not ill and did not have a temperature or cough. Ms Orme, however, stopped her doing so. At the end of the meeting Mr Britain summarised his decision, which was that:• The claimant understood what COVID-19 symptoms were.• That the statements from Ms Birch and from Ms Parker supported the fact that the claimant had a fever.• That the claimant had had 14 days off work and had not contacted work to query why she had been sent home and asked to self-isolate when she did not have COVID symptoms.[31]On the basis of those conclusions, Mr Britain decided to dismiss the claimant for gross misconduct because she had come on site knowing she had COVID symptoms. Case No. 2413992/2020 7[32]On 28 May 2020 that decision was confirmed in writing. The claimant was told that she had a right of appeal within three days (pages 118-119).[33]The claimant lodged an appeal on 28 May 2020 (page 120). The claimant was invited to an appeal hearing on 22 June 2020 by an invitation letter dated 5 June 2020 (page 121). On 16 June 2020 that appeal was rescheduled for 25 June 2020 (page 122).[34]The appeal hearing took place on that date and was held by Ms McKay (Business Unit Manager), assisted by Ms McGauley (Head of HR). Mrs Shahzad again acted as interpreter for the claimant. At that appeal hearing the claimant repeated what she had said had happened on 26 March i.e. that she had not felt ill when she came to work but had developed a runny nose (not a fever or temperature or cough), had raised that with her supervisor and had been sent home by Ms Parker. As I have made clear above, I accept that that is what factually happened on 26 March.[35]In brief, the claimant challenged the versions of events given in the witness statements for the respondent which I have referred to above. At the end of the meeting (page 128) Mrs McKay confirmed that her decision was to uphold the dismissal. The reasons for that were that there were two statements which were very clear and consistent that said that the claimant had coronavirus symptoms; there were many inconsistencies in what the claimant was saying in terms of who she had spoken to and what she said was true and not true. In passing, I note that the claimant’s version of events throughout the disciplinary hearings and the appeal hearing was notably consistent. In contrast, there were manifest inconsistencies between the witness statements provided by the respondent’s witnesses.[36]On 25 June 2020 Mrs McKay wrote to the claimant to confirm the appeal outcome. She said the main reason for deciding to uphold the decision to dismiss was that there were:• Clear and consistent evidence that you had been spoken to by a number of managers who were clear that you had advised them you had a temperature, you were also witnessed coughing.• In contrast your own explanation of events was highly contradictory and inconsistent.• You were aware of COVID symptoms and I believe it was reasonable for the dismissing manager to believe, despite the notices all around site, you came in displaying symptoms.[37]As I have made clear, I do not find that the evidence was “clear and consistent” that the claimant had advised her managers that she had a temperature and that she was witnessed coughing. Relevant Law Unfair dismissal
Relevant Law
[38]As set out above, the claimant is not entitled to bring a claim for 'ordinary' Case No. 2413992/2020 8 unfair dismissal under s.98 ERA, as she does not have two years' continuous service.[39]The claimant is claiming automatically unfair dismissal under s100(1) ERA. This has no minimum qualifying period of service. Specifically, the claimant relies on subsection 100(1)(e): (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that – (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, she took (or proposed to take) appropriate steps to protect himself or other persons from the danger.[40]Following Balfour Kirkpatrick Ltd v Acheson [2003] IRLR 683 s.100(1)(e) must also be read as also applying where the reason or principal reason for dismissal is that in circumstances of danger which the employee reasonably believed to be serious and imminent she took appropriate steps to communicate these circumstances to her employer by appropriate means.[41]S.100 also provides: (2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.[42]“Other persons” can include members of the public and is not restricted to other employees or workers of the employer (Masiak v City Restaurants (UK) Ltd1999 IRLR 780, EAT).[43]In Oudahar v Esporta Group Ltd [2011] IRLR 739 EAT the EAT held that s100(1)(e) should be applied in two stages: Firstly, the Tribunal should consider whether the criteria set out in that provision have been met, as a matter of fact. Were there circumstances of danger which the employee reasonably believed to be serious and imminent? Did she take or propose to take appropriate steps to protect herself or other persons from the danger? Or did she take appropriate steps to communicate these circumstances to her employer by appropriate means? If these criteria are not satisfied, section 100(1)(e) is not engaged. Case No. 2413992/2020 9 Secondly, if the criteria are made out, the Tribunal should then ask whether the employer's sole or principal reason for dismissal was that the employee took or proposed to take such steps. If it was, then the dismissal must be regarded as unfair.[44]The Court of Appeal set out the position when there is a dispute about the real reason for a dismissal in Kuzel v Roche [2008] EWCA Civ 380[2008] IRLR 530:(a) It is necessary for the Tribunal to identify only one reason or one principal reason for the dismissal. That reason or principal reason for a dismissal is a question of fact for the Tribunal. As such it is a matter of either direct evidence or of inference from primary facts established by evidence.(b) The reason for dismissal consists of a set of facts which operated on the mind of the employer when dismissing the employee. The employer knows better than anyone else in the world why it dismissed the complainant. It is for the employer to show that it had a reason for the dismissal; that the reason was, as it asserted, a potentially fair one; and to show that it was not some other reason.(c) When the employee contests the reason for dismissal put forward by the employer there is no burden on her to disprove it, let alone to positively prove a different reason. However, where an employee positively asserts that there was a different and inadmissible reason for the dismissal, she must produce some evidence supporting the positive case, such as making protected disclosures.(d) This does not mean, however, that, in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason.(e) Having heard the evidence of both sides relating to the reason for dismissal it will then be for the Tribunal to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence. The Tribunal must then decide what was the reason or principal reason for the dismissal of the claimant on the basis that it was for the employer to show what the reason was.(f) If the employer does not show to the satisfaction of the Tribunal that the reason was what it asserted it was, it is open to the Tribunal to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the Tribunal must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, but it is not necessarily so. Case No. 2413992/2020 10(g) As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the Tribunal to find that, on a consideration of all the evidence in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason. Wrongful dismissal[45]When it comes to wrongful dismissal the Tribunal is not concerned with the reasonableness of the employer's decision to dismiss, but the factual question, was the employee guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract? (Enable Care & Home Support Ltd v Mrs J A Pearson UKEAT/0366/09/SM). Conclusions Does section 100(1)(e) apply?
Conclusions
[46]The first question I need to decide is whether the criteria set out in section 100(1)(e) have been met as a matter of fact.[47]First, were there circumstances of danger which the employee reasonably believed to be serious and imminent? As to whether there were circumstances of danger, I accept that the COVID-19 presented circumstances of danger as there was a risk of the claimant or her colleagues catching a contagious virus which could lead to serious illness and sometimes death. I then need to decide whether the claimant believed there were circumstances of serious and imminent danger.[48]As I say, I have accepted the claimant's evidence that she went to see Donna Condliffe because she had a runny nose. That was not one of the three Government recognised COVID symptoms at the time. The claimant's case is that she did not have any of those three symptoms: that is, temperature, persistent cough and loss of taste and smell. The claimant went to see Donna Condliffe because she had a runny nose and was having to blow her nose while working on the line. I accept that COVID may have been in the back of her mind, but I find that she did not believe there was a serious and imminent danger. That finding seems consistent to me with the fact that she returned to working on the line after speaking to Donna Condliffe. It is also consistent with the evidence she gave at paragraph 7 of her statement. On that basis I find that when the claimant went to speak to Donna Condliffe she was not communicating circumstances of danger which the employee reasonably believed to be serious and imminent: she was simply asking what she should do because she had a runny nose and was not sure if she should still be working on the line. Case No. 2413992/2020 11[49]On that basis I find that section 100(1)(e) does not apply, the claimant's case of automatic unfair dismissal based on it must fail.[50]Moving on to the principal reason for dismissal. Out of courtesy to the parties and in case I am wrong about section 100(1)(e) not applying, I have gone on to decide whether the claimant reporting her runny nose to Donna Condliffe was the reason or principal reason for dismissal. I remind myself that the reason for dismissal is the set of facts which operated on the mind of the employer when dismissing the employee. I accept what Mrs Asif says that in one way the claimant reporting her runny nose to Donna Condliffe was part of what led to the dismissal, because if she had not done so she might not have been subjected to disciplinary proceedings at all because the respondent would not have been aware of her runny nose. That is not the same as it being a “reason or principal reason for dismissal” - it was merely one event in the chain which led to the decision to dismiss.[51]In this case the dismissing officer was Mr Britain. His evidence was that the reason for dismissal was that he was satisfied the claimant was guilty of gross misconduct because she had come on site while having COVID symptoms, namely fever and a cough. Had this been an “ordinary” unfair dismissal case, the reasonableness of that finding and of the investigation on which it was based would have been in issue. I accept Mrs Asif’s submission that there were a number of inconsistencies between the written statements provided by the claimant's supervisors and managers. There were things which could have been done which were not, for example checking with colleagues working the line with the claimant whether she had a fever or a cough, and interviewing Wendy Birch rather than relying on her email statement when the claimant was putting forward a different version of events. The claimant was also not given the opportunity to make a written statement before the disciplinary hearing, nor was she shown the statements on which the allegations against her were based before the hearing.[52]The question is whether those flaws in the procedure and the other factors I have found are sufficient to undermine the respondent’s case that the reason or principal reason for dismissal was misconduct and (more relevantly) nothing to do with the claimant reporting a runny nose. The other principal factors which I am referring to are:(1) The delay from 26 March 2020 to 7 May 2020 before any action was initiated, despite the matter apparently being sufficiently serious to warrant gross misconduct dismissal.(2) The claimant being allowed to return to work for around seven weeks from 9 April to 19 May before any action was taken despite the seriousness of the allegation against her. There was also a lack of explanation for why the respondent thought the claimant having, on the respondent’s case, come to work knowing she had symptoms, self-reported herself to Donna Condliffe. That behaviour seemed hard to understand if she had indeed come to work with symptoms.(3) The emphasis placed by Mr Britain and Mrs McKay on the claimant not having challenged a direct instruction from a senior manager to self- Case No. 2413992/2020 12 isolate, as evidence relevant to her having come to work with COVID on 26 March 2020.[53]Most of those matters remained unexplained by the respondent’s witnesses. Mr Hart provided some explanation for the delay based on evidence that the delay may have been down to manager absence and needing to deal with COVID. Despite this, the situation does seem to me very unsatisfactory. However, they do not positively point to a link between the claimant’s dismissal and her self-reporting to Donna Condliffe on 26 March 2020.[54]Mrs Asif accepted in submissions that Mr Britain may well have genuinely believed the claimant was guilty of misconduct. On balance, and with the reservations I have mentioned above, I find that the reason or principal reason for dismissal was Mr Britain’s genuine belief that the claimant was guilty of gross misconduct. I find that he reached that belief because he preferred the evidence of his senior colleague, Wendy Birch, to that of the claimant. I do not say that he was correct to do so, however I do accept that that was the reason for dismissal. What that means is that even if section 100(1)(e) did apply the unfair dismissal claim would fail. Wrongful dismissal[55]Turning to the wrongful dismissal claim, I have said that I prefer the claimant's version of what happened on 26 March 2020. What that means is I find that in fact she did not have COVID symptoms when she attended work. That means that she was not in repudiatory breach of contract. In fact I find that she acted within her contract and perfectly reasonably by raising with her line charge a question about whether she should carry on working given that she had a runny nose. In the absence of any repudiatory breach by the employee, an employer is not entitled to terminate the employment contract without notice. In those circumstances I find that the wrongful dismissal claim does succeed.
Conclusion
[56]My judgment therefore is as follows:(1) The claimant's claim that she was unfairly dismissed because the reason or principal reason for her dismissal was one falling within section 100(1)(e) of the Employment Rights Act 1996 fails.(2) The claimant's claim that she was wrongfully dismissed in breach of her contract of employment succeeds.(3) The parties are agreed that a week’s pay was £250. The respondent is ordered to pay the claimant the net amount of £250 as compensation for wrongful dismissal. Case No. 2413992/2020 13