A Myszkowska v St. Andrews Parish Church, Church of Scotland, Inverurie: 4100752/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100752/2025Venue AberdeenHearing Monday 18 August 2025
Between
A MyszkowskaClaimantSt. Andrews Parish Church , Church of ScotlandRespondent
Before
Employment Judge N M Hosie, Inverurie for respondentMr D Di Paola (instructed by Solicitor) for respondentDate 28 August 2025
JUDGMENT
The Judgment of the Tribunal is that the claim is dismissed.
REASONS
[1]Agnieszka Myszkowska claimed that she was unfairly dismissed by the respondent, St. Andrews Parish Church of Scotland, Inverurie (“the Church”) where she had worked as a cleaner for a number of years. The respondent admitted the dismissal but claimed that the reason was conduct, “gross misconduct” and that it was fair. The claimant was contracted to work 20 hours per week. The respondent maintained that she had not worked her contracted hours but she had still claimed her full pay. The claimant maintained that the respondent’s investigation was inadequate, that the CCTV relied upon to establish when she was at work was inaccurate and that the respondent had not followed a fair procedure.
The evidence
[2]I first heard evidence on behalf of the respondent from:-• Reverend Carl J Irvine, who took the decision to dismiss the claimant.• Mrs Kristine (“Kit”) Pawson, an Elder of the Church and Session Clerk at the time, who attended the disciplinary hearing.[3]I then heard evidence from the claimant.[4]The claimant submitted a bundle of documents (“C”) as did the respondent (“R”).
The facts
[5]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact. The claimant commenced her employment as a cleaner with the respondent on 26 August 2016. Her contract of employment was one of the documentary productions (R33-42). Although the contract records her normal hours of workas 15 hours per week, it was agreed subsequently that this would be increased to 20 hours per week. Her employment ended on 24 January 2025 when she was dismissed, allegedly for gross misconduct. In over 8 years of employment there were no complaints about the quality of her work. CCTV[6]In or around May 2024, CCTV cameras were installed in the old chapel, in the old hall, in the vestibule and at the front door of the Church. The installation of these cameras was for security reasons. The cameras do not video people but they take “still” photos of people when they come in and out of the buildings where the cameras are located. The claimant was aware of the existence of the CCTV cameras. Investigation[7]The respondent became concerned that the claimant was not working her contracted 20 hours per week. They carried out an investigation into the matter. They decided to monitor the CCTV for a period of one month from 13 November 2024. This was carried out by the Minister, Reverend Irvine. I heard evidence from him at the hearing. He gave his evidence in a measured, consistent and convincing manner. He presented as credible and reliable. Having examined the CCTV images of the claimant entering and exiting the Church he came to the view that she had only worked 13 hours and 53 minutes when she was contracted to work, and was paid for, a total of 84 hours. Disciplinary[8]On 20 December 2024, Reverend Irvine wrote to the claimant to invite her to attend a “Disciplinary Meeting” (R43-58). He enclosed with his letter a copy of the respondent’s Disciplinary Procedure (R39-41); a “Table of Entry and Exit Times”, alleging that the claimant had only worked 13 hours and 53 minutes in the period from 13 November 2024 to 10 December 2024, when she should have worked a total of 84 hours( R45); and the CCTV still images of the claimant entering and exiting the main building at the Church (R47-57). Disciplinary hearing[9]Although initially the hearing had been scheduled for 10 January it was postponed due to bad weather and rescheduled for 24 January 2025.[10]Prior to the hearing, the claimant had submitted a written statement. It was in the following terms (P.59):- “I am writing in advance of my meeting to explain some of the circumstances & hope these points can be taken into consideration. I frequently work outwith my contracted hours to make sure the church is presentable for activities. As I travel from Kemnay to the church, this costs me both time & fuel. I have suffered bad health over the last few months & this has impacted on my ability to fulfill my hours at times. I would have spoken to the church about this more, but I was worried I would be docked wages as a result. The playgroup has no CCTV, and this accounts for a portion of my work at the church. I believe that if the nursery had CCTV & the church CCTV was to be thoroughly checked, my hours would be far higher than logged in the complaint against me. I have worked for the church many years and I really enjoy my job here. There have never been complaints about the quality of my cleaning previously and I work hard in my time at the church. I am a practicing Catholic and it makes me proud to work for the church & serve the community.” Disciplinary hearing on 24 January 2025[11]Minutes of the meeting were produced (R63). Notes were taken at the meeting by Kit Pawson from whom I also heard evidence at the Tribunal hearing. She also presented as credible and reliable. The Minute was a “summary” of what was discussed at the meeting. The following are excerpts:- “• Agnes’s pleas of mitigation were laid out as follows:• Time and fuel from Kemnay to Inverurie Carl pointed out that these were Agnies’ responsibility• Bad health from October Carl pointed out that Agnes should have informed her employer (the Church) of these health problems but she did not do so• No CCTV in the new Hall so hours cannot be checked Carl pointed out that the New Hall is a third of the size of the church building so even if she had worked the same hours there as in the church, she still had been grossly overpaid for work undertaken• Agnes stated that she could not pay back the money as she was on Benefits. She did point out that she occasionally had her daughter with her but this did not in any way make up for the unworked hours.”[12]After a short adjournment, the meeting was reconvened and Reverend Irvine advised the claimant that he and Mrs Pawson had decided that she should be dismissed by reason of gross misconduct. The minute records that the meeting lasted a total of 20 minutes.[13]On 24 January 2025, Reverend Irvine wrote to the claimant to confirm the decision (R61-62). The following are excerpts from his letter:- “1. Your contract sets your hours at 20 per week and gives you flexibility how these hours are completed, this gives you the ability to minimise your travel times and costs. As your employer, St. Andrews Parish Church, Inverurie are not responsible for your travel costs. 2. Section 9 of contract, clearly states your entitlement to Statutory Sick Pay and your responsibility to inform the Session Clerk of your inability to work due to illness, which you did not do. 3. The New Hall is one third of the size of the main building, even given its regular use, and the fact that this use involves children, the time needed to clean it should not be more than that for the main building. The CCTV in the main building was thoroughly checked and the hours of 13 hours 53 minutes worked are accurate. Even if the same time was worked in New Hall as in main building, hours worked would still be considerably less than half paid.” Appeal[14]On 27 January the claimant intimated that she wished to appeal against her dismissal (R67). She said this in her letter:- “• Your CCTV is inaccurate, I do not accept its evidence.• Why did the Church not set up a normal “Signing In” and “Signing Out” easily accessed by both employer and employees?• The minutes of the meeting held with me on 24 January 2025 are inaccurate. Please forthwith supply me with the written notes from which they were prepared.• If you were dissatisfied with my work, at any time, over the past 8 years, can you explain why you failed to consult with me before taking the cruel step of a “Summary Dismissal for gross misconduct”?• I’ve never been “fired” in my life and I find your cruel action is forcing me to consult the National Health Service for my severe, and uncharacteristic depression.”[15]However, on 20 February the claimant intimated that she wished to withdraw her appeal (R69). Respondent’s Submissions[16]The respondent’s solicitor made oral submissions at the hearing. The following is a brief summary. He submitted that the test in British Home Stores Ltd v. Burchell [1978] IRLR 380 had been satisfied.[17]He submitted, with reference to Sainsburys Supermarkets Ltd v. Hitt [2003] IRLR 23, that the respondent’s investigation was within the band of reasonable responses which a reasonable employer could have carried out. The CCTV was examined; the claimant was provided with all the relevant documents in advance; and there was a disciplinary hearing.[18]He referred, in particular, to the claimant’s concession in her written statement that she had been unable to fulfil her contracted hours due to “bad health” and that she had not informed the respondent of this (R59). He referred to the provision in the claimant’s contract at para.9 regarding “Sickness Pay and Benefit” (R34).[19]He submitted, with reference to Iceland Frozen Foods Ltd v. Jones [1982] IRLR 43, that the claimant’s dismissal was within the band of reasonable responses open to a reasonable employer. He submitted that it was reasonable for the respondent to conclude that the claimant committed gross misconduct. He referred to Clause 12 of her contract of employment which details “irregular attendance at work” and “failure to notify the Session Clerk of non-attendance at work” and “failure to produce medical evidence of illness lasting more than 3 days” as matters which could lead to disciplinary action. Claimant’s submissions[20]The claimant also made a brief oral submission. The following is a brief summary. She submitted that the respondent was “looking for savings” and that was why she had been dismissed. She was not replaced. The cleaning work at the Church is now done by volunteers.[21]I also remained mindful of the points which she had raised in her statement (R59); in the response to her dismissal in which she also intimated her intention to appeal (R67).
Discussion and Conclusions
[22]In every unfair dismissal case where dismissal is admitted, s.98(1) of the Employment Rights Act 1996 (“the 1996 Act”) requires the employer to show the reason for the dismissal and that it is an admissible reason, in terms of s.98(2), or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. An admissible reason is a reason for which an employee may be fairly dismissed and among them is conduct. That was the reason which the respondent claimed was the reason for the claimant’s dismissal. I was satisfied that the claimant was dismissed for that reason. However, that is not to say that it followed that the claimant was guilty of the alleged misconduct, only that Reverend Irvine and Mrs Pawson believed that she was and that was the reason for her dismissal.[23]The remaining question which I had to determine, therefore, under s.98(4) of the 1996 Act, was whether the respondent had acted reasonably in treating that reason as a sufficient reason for dismissal and that question had to be determined in accordance with equity and the substantial merits of the case.[24]When considering this issue, I was mindful that the respondent had categorised the allegation against the claimant as “gross misconduct”. However, in terms of s.98(4) the real focus of an unfair dismissal complaint is a substantive one of whether the claimant’s conduct in itself can reasonably have been considered by a reasonable employer to be “sufficient” for dismissal. When conduct is put forward by a respondent as a reason for the dismissal, the primary focus as to whether that is reasonable has to be on the character of that conduct.[25]The point I make is that the question of whether a dismissal is fair or unfair under s.98(4), is not answered by deciding whether or not the employee has been guilty of gross misconduct. This was confirmed by the EAT in Western Recovery Services v. Fisher EAT0062/10: When considering the fairness or otherwise of a dismissal, the only relevant question is whether the conduct was “sufficient for dismissal”, according to the standards of a reasonable employer and whether dismissal accorded with, “equity and the substantial merits of the case”.[26]Accordingly, I was required to consider in the present case, the nature, character and the effect of the claimant’s conduct, in the context of her employment as a cleaner at the Church.[27]To determine whether a dismissal for conduct is fair, valuable guidance is provided in the well-known case of Burchell, to which I was referred. Mr Justice Arnold gave the following guidelines in that case at page 380:- “What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the conduct in question (usually, but not necessarily dishonest conduct), entertained a reasonable suspicion amounting to a belief in the guilt of that employee of that misconduct at that time. That is really stating shortly and compendiously what in fact is more than one element. First of all, there must be established by the employer the fact of that belief: that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and thirdly, we think that the employer, at the stage at which he formed that belief, on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”[28]This means that the employer need not have conclusive direct proof of the employee’s misconduct – only a genuine and reasonable belief, reasonably tested. This is an objective test to be judged according to what would be expected of a reasonable employer. It is not a matter in which the Tribunal is entitled to substitute its personal view of what it might have done had it been the employer, but rather to consider the matter objectively and only in terms of what a reasonable employer might have done, recognising that in many cases there is a range of reasonable responses which one employer might reasonably take one view, and another quite reasonably take another (Iceland Frozen Foods).[29]In regard to the matter of substitution, the employer, of course, cannot be the final arbiter of its own conduct in dismissing an employee. It is for the Employment Tribunal to make the judgment, always bearing in mind the test is whether the dismissal in the whole circumstances is something that a reasonable employer could have done (Bowater v. North West London Hospitals NHS Trust [2011] EWCA Civ63).[30]I also remained mindful, with reference to Sainsburys Supermarkets, to which I was also referred, that the objective standards of the reasonable employer must be applied to all aspects of the question of whether an employee was fairly and reasonably dismissed. This was of particular significance in the present case because of the criticism by the claimant of the adequacy of the respondent’s investigation. ACAS Code of Practice[31]I also remained mindful that an Employment Tribunal is obliged, by s.207(2) of the Trade Union & Labour Relations (Consolidation) Act 1992, to take into account the provisions of the ACAS Code of Practice on Disciplinary & Grievance Procedures (2015). I also had regard to the accompanying Code (a non-statutory guide “Discipline & Grievances at Work”) (“the ACAS Guide”), which was most recently updated in July 2020.[32]The employer’s compliance with the Code is a factor to be taken into account when determining the reasonableness of the dismissal, in accordance with the statutory test of reasonableness under s.98(4). Burchell[33]What then of the three-fold test in Burchell? So far as the first branch of the test was concerned, I was satisfied that Reverend Irvine and Mrs Pawson who took the decision to dismiss believed the claimant was guilty of misconduct.[34]The second branch of the Burchell test is whether the decision makers had in their minds reasonable grounds upon which to sustain that belief. This along with the adequacy of the respondent’s investigation, were the pivotal issues in the present case. The investigation[35]I decided to address this issue, the third branch of the three-fold test in Burchell, first. Under paragraph (a) of sub-section 98(4) the question of whether the employer acted reasonably, particularly where the reason for dismissal was related to the conduct of an employee, frequently involves consideration of the adequacy of the employer’s investigation into some alleged wrong doing and thus whether a reasonable employer could have concluded that he or she was guilty.[36]I am bound to say that I did have some reservations about the reliability, adequacy and thoroughness of the respondent’s investigation, relying, as Reverend Irvine did, exclusively on the CCTV which did not cover all of the locations where the claimant worked. In particular, it did not cover the “New Hall”. However, as Reverend Irvine observed, the New Hall is only approximately one third of the size of the other locations where the claimant was required to work and even giving her the benefit of the doubt and allocating the same time for the claimant working there as he discovered that she had worked in the other locations, the total time still falls some way short of the 84 hours she was contracted to work and for which she was paid.[37]Further, so far as the adequacy of the investigation was concerned, my task, as the Court of Appeal said in Taylor v. OCS Group Ltd [2006] IRLR 613, was to assess the disciplinary process as a whole and also to consider the respondent’s reason for dismissal, as the two impact upon each other. So far as the adequacy of the investigation was concerned it was significant that in the statement, which the claimant submitted prior to the disciplinary meeting, she accepted that she had not fulfilled her contractual hours due to ill health (R59). However, she had not advised the respondent of this notwithstanding the sick pay provisions in her contract of employment (R34).[38]Also, in the course of the disciplinary hearing the claimant said that, “she could not pay back the money as she was on benefits” (R63).[39]When set in the context of these admissions I arrived at the view that the respondent’s investigation was within the band of reasonable responses open to a reasonable employer (Sainsburys Supermarkets). I arrived at the view, therefore, with reference to the third branch of the test in Burchell, that the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances.[40]I was also satisfied that the respondent had complied with the ACAS Code and Guide and that the disciplinary procedure which the respondent followed was in accordance with its own procedure (R.39-40) and was reasonable. The claimant was advised of the allegations against her and was provided with all the relevant documentation. She was then afforded an opportunity of responding to the allegations. I was satisfied that she was afforded a reasonable opportunity to do so, notwithstanding the fact that the disciplinary meeting only lasted 20 minutes. I was also satisfied that the Minute of the disciplinary meeting, which was in summary form, was reasonably accurate (R63).[41]It followed, therefore, from the evidence which the respondent had obtained by viewing the CCTV and the claimant’s admissions that she had not fulfilled her contractual hours, that the Reverend Irvine and Mrs Pawson had in their minds reasonable grounds upon which to sustain their belief in the claimant’s misconduct.[42]I should add, for the sake of completeness, that in my view the claimant’s suggestion that she had been dismissed because the respondent wanted to “save costs” was not well-founded, something which Mrs Pawson, a credible and reliable witness, strongly denied when this was put to her at the Tribunal Hearing. As I recorded above, it was clear that the reason for her dismissal was her misconduct. I arrived at the view, therefore, that the three-fold test in Burchell had been satisfied.[43]I was satisfied that the respondent had a genuine and reasonable belief that the claimant was guilty of the alleged misconduct, reasonably tested.[44]Was dismissal a reasonable sanction?[45]I then went on to consider, whether, in all the circumstances, dismissal was a reasonable sanction. In this regard, I was mindful of the guidance given in such well-known cases as Iceland Frozen Foods, to which I was referred, that there is a band of reasonableness within which one employer might reasonably dismiss the employee, whereas another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose. If no reasonable employer would have dismissed, then the dismissal is unfair, but if a reasonable employer might reasonably have dismissed, then the dismissal is fair.[46]I sensed that there was a degree of regret on the part of Reverend Irvine and Mrs Pawson deciding to dismiss the claimant for, after all, she had been a good employee for a number of years and there had never been any criticism of her work. For her part, I could not understand why the claimant had not advised the respondent of her ill health and claimed sick pay as she was entitled to do in terms of her contract of employment.[47]However, as the Reverend Irvine put it, there had been a breach of trust and that was why, he felt he had no option other than to dismiss the claimant.[48]As the respondent’s solicitor submitted, the claimant’s conduct fell squarely within various “disciplinary matters” which could lead to dismissal as detailed in her contract of employment (R34, para. 12). I had no difficulty, therefore, arriving at the view that the claimant’s dismissal was within the band of reasonable responses which a reasonable employer might have adopted and that it was fair. Gross misconduct[49]I was also satisfied that given the nature of the claimant’s misconduct, a reasonable employer could have concluded that it amounted to gross misconduct and that summary dismissal was justifiable.[50]It was reasonable, therefore, to dismiss the claimant summarily. It was within the band of reasonable responses which a reasonable employer might have adopted.[51]Having arrived at the view the claimant’s dismissal was not unfair, her claim is dismissed. 28 August 2025