Mrs M Gear v Arden House Projects Company Ltd: 4102483/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102483/2019Venue DundeeHearing 26, 27, 28, 29 and 30 August 2019
Between
Mrs M GearClaimantArden House Projects Company LimitedRespondent
Before
Employment Judge A KempMrs A Sneddon (instructed by Solicitor) for claimantMr W Lane (instructed by Solicitor) for respondentDate 10 September 2019
JUDGMENT
[1]The claimant was unfairly dismissed by the respondent.[2]She is awarded the sum of THREE HUNDRED AND SIXTY NINE POUNDS FIFTY NINE PENCE (£369.59) in respect of that unfair dismissal. E.T. Z4 (WR)
REASONS
The Issues
[1]The claimant pursued a claim of unfair dismissal. It was defended by the respondent.[2]The parties were each represented by solicitors, Mrs Sneddon for the claimant and Mr Lane for the respondent. Each did so with conspicuous skill. The Issues The issues before the Tribunal were– What was the reason for the claimant’s dismissal?[2]If potentially fair, was the dismissal unfair under section 98(4) of the Employment Rights Act 1996?
The Issues
[3]In the event of any finding in favour of the claimant what award should be made?[4]In that regard,(i) would there have been a fair dismissal by a different procedure(ii) had the claimant contribute to her dismissal, and if so to what extent and(iii) had the claimant mitigated her loss? The Evidence 4. The parties had prepared a bundle of documents. Not all of the documents in the bundle were spoken to in evidence.[5]The Tribunal heard oral evidence from(i) Mr Kenny Murphy of Fife Voluntary Action,(ii) Mr Allan Thomson a director of the respondent,(iii) Reverend Elizabeth Cranfield a director of the respondent who is also a Church of Scotland parish minister,(iv) the claimant herself, and(v) Mr William Mitchell a local businessman.
The facts
[6]I make the following findings in fact:[7]The claimant is Mrs Margaret Gear.[8]The respondent is Arden House Projects Limited. It is a company limited by guarantee. It had formerly been an unincorporated association, and became a company limited by guarantee in about 2007.[9]It had 15 employees at the material time.[10]The claimant was employed by the respondent as its Manager. She reported to the then Chair of the board of directors of the respondent, Ms Amy Mathewson. Her employment commenced on 1 May 2012. She worked 30 hours per week.[11]Prior to becoming the Manager the claimant had been a board member of the respondent from 1997, and became its Chair in 2011. She had resigned her position on the board in order to apply for the role as Manager.[12]The claimant’s mother was, and remains, a service user of the respondent.[13]The claimant was issued with a Statement of Main Terms of Employment on commencing with the respondent. It made reference to a Stakeholder Pension scheme, details of which could be obtained from her line manager. It referred to a disciplinary procedure in the Employee Handbook. In relation to a Grievance Procedure it stated, “Should you feel aggrieved at any matter relating to your employment, you should raise the grievance with your Line Manager, either verbally or in writing. Further information can be found in the Employee Handbook.”[14]An Employee Handbook was issued by the respondent to its staff, including the claimant. It referred to a contributory pension scheme to which staff were auto-enrolled, subject to the conditions of the scheme. It stated that further details were available separately. The Handbook also contained disciplinary and grievance procedures. The disciplinary procedure which had a section headed “Rules covering gross misconduct.” That had a list of examples of offences that will normally be deemed as gross misconduct, which were said to be illustrative not exhaustive. Gross insubordination was not on that list. There was an appeal procedure, which stated “You have the right to lodge an appeal in respect of any capability/disciplinary action taken against you…..The appeal procedure will normally be conducted by a member of staff not previously connected with the process so that an independent decision into the severity and appropriateness of the action taken can be made.”[15]The respondent contracted with Peninsula Business Services (“Peninsula”) for employment law advice, and the provision of insurance against claims by employees. The respondent regularly consulted Peninsula in relation to the disciplinary process involving the claimant set out below. Doing so was required as a condition of that insurance.[16]The respondent is a company limited by guarantee. It operates through its Articles of Association, which provided: “The subscribers to the Memorandum of Association of the Company and such other persons as are admitted to membership in accordance with the Articles shall be members of the Company. No person shall be admitted a member of the Company unless he is approved by the directors.” [By reference to Table A]36. All general meetings other than annual general meetings shall be called extraordinary general meetings.37. The directors may call general meetings, and on the requisition of members pursuant to the provisions of the Act, shall forthwith proceed to convene an extraordinary general meeting for a date not later than eight weeks after receipt of the requisition. 70. Subject to the provisions of the Act, the memorandum and the articles and to any directions given by special resolution the business of the company shall be managed by the directors who may exercise all the powers of the company….. 88. Subject to the provision of the Articles the directors may regulate their proceedings as they think fit….. 89. The quorum for the transaction of the business of the directors may be fixed by the directors and unless so fixed at any other number shall be two.”[17]The respondent had separately prepared a document entitled “Constitution”, which provided that: “Any member of the Project can nominate someone for membership on the Board of Directors. An Extra-Ordinary General Meeting (Special Meeting) may be called by the Secretary on the instructions of the Convenor, or on the written request of a quarter of the Board of Directors members stating clearly the purpose of the meeting. Public notice will be given 21 days in advance of a Special Meeting.” [Under the heading Board of Directors] One quarter of elected members shall constitute a quorum.”[18]The respondent did not keep a register of its members.[19]The respondent operated by a board of directors. There were eight such directors at the material time. There was a Secretary, Ms Claire Robb, who was one of the directors.[20]The respondent’s board of directors were volunteers, who were not paid. They met periodically. They worked at the respondent on a part-time basis. They kept minutes of their meetings which were a reasonably accurate record of them.[21]The respondent is a charity registered as such was the Office of the Scottish Charities Regulator. It provides day centre facilities for elderly members of the local community. It derives about 75% of its funding from Fife Council, which provides a Link Officer to assist its operation. It sought to maintain a small surplus each year, but operated to tight financial constraints. The level of funding from Fife Council was reduced from that in the previous financial year.[22]In practice and although a company limited by guarantee which was regulated by its Articles of Association (“Articles”) board members and staff continued to refer to a document titled a Constitution to guide how the respondent should be operated, and used it for making funding applications. Such a Constitution had been in force prior to the respondent becoming a company limited by guarantee. When Annual General Meetings (“AGMs”) were held the Chair Ms Mathewson had a practice of inviting staff to attend. Some but not all did so. At the AGM Ms Mathewson had a further practice of inviting the staff to give their assent to the existing board remaining “in situ”, which the staff present did. No formal vote was taken in respect of the continuation of any individual board member, nor was there a formal poll of members. The staff, including the claimant, were not members of the respondent.[23]In 2016 a major investigation was required into the respondent by Fife Council following a complaint made. Solicitors were instructed by the complainant, and substantial time and resource was utilised by the respondent in responding to it. In 2016 the claimant sent an email (not produced in evidence) to the Link Officer of Fife Council, Lesley Elias, alleging a lack of respect by the board for staff and that she could not talk to the board. Although Ms Elias said that she would discuss it with a senior there was no further discussion about that at that stage.[24]At a time not given in evidence, an employee of the respondent Gill Henderson raised a grievance in writing against a board member, Christine McIntosh (the grievance was not produced in evidence). The claimant investigated it, taking statements from each, but the matter was not concluded at that time. At another time not given in evidence it was disclosed to Ms Mathewson that some members of staff, including the claimant’s daughter Lesley Young, were not working to their contracted hours, and leaving early. Ms Mathewson said something to the effect that there were swings and roundabouts, and no action needed to be taken.[25]In the period of about March to June 2018 inclusive the claimant spoke on three occasions to Mr Alan Stuart, a board member of the respondent and its Vice Chair, seeking a meeting with him to discuss her own, and staff, concerns as to the management of the respondent, including its financial position in light of a reduction in funding from Fife Council. Whilst Mr Stuart indicated that he would meet the claimant, no meeting was arranged specifically to do so. A sense of frustration grew in many of the staff that the board of directors of the respondent was not engaging in adequate communication with them, and did not have adequate processes in place to operate the charity adequately. They discussed the issue between themselves. A meeting was arranged to take pace on 5 July 2018 (referred to further below)[26]On 4 July 2018 twelve members of staff of the respondent, including the claimant, signed a letter seeking to call an Extraordinary General Meeting of the respondent after discussions between themselves. The staff considered that as they had attended AGMs and had voted, as they thought that they had, at them, they were members of the respondent. They thought that under the Constitution they were entitled to seek an Extraordinary General Meeting “EGM”. The letter stated: “We – staff of Arden House Projects, would like to call an Extra-Ordinary Annual [sic] General Meeting, as per the constitution. Our concerns are: No confidence in the Board of Directors Lack of direction and leadership”[27]On 4 July 2018 the claimant attended a board meeting of the respondent in order to give her report, as was normal practice. She expressed the opinion, after having been on a training course, that in light of the terms of the General Data Protection Regulation (GDPR) recently introduced, that if accounting information was to be sought, including by the Treasurer, that would require to be in writing and with 14 days’ notice. There was a discussion about that issue, with some board members expressing disagreement at that suggestion.[28]Towards the end of the meeting the claimant asked which members of the board were stepping down. Claire Robb, Jim Young and Amy Matthewson said that they were to be doing so and stated when they would do that. The claimant, with Ms Orr also in attendance, then handed to the Chair the letter dated 4 July 2018 and left.[29]The board members were shocked to receive the letter. No immediate action was taken as they considered the issue, and took advice.[30]Ms Helen Rorrison of Fife Voluntary Action was present for a later session of the meeting that day, and expressed the view that the claimant could not call an extraordinary general meeting. She expressed the view that the claimant’s comments as to the GDPR were incorrect. She agreed to speak to her superior about matters.[31]Her superior was Mr Kenny Murphy, the CEO of FVA. He agreed to assist the respondent.[32]The claimant attended the meeting referred to above at the respondent’s premises on 5 July 2018, at which most staff attended, together with supporters of the respondent from the business community and one director, Mr Dave Munro, whom she had personally invited but did not state its intended purpose.. The meeting discussed what were said to be concerns over the present board. The claimant had not informed other directors of the fact of the meeting, nor had she sought any authority to do so. No record of attendees was kept. The meeting was held in breach of fire regulations.[33]On 6 July 2018 the claimant signed a letter to each director of the respondent stating: “We are calling an Extraordinary AGM (Annual General Meeting) on Tuesday 24th July 2018 at 18.30 to be held in Arden House Projects. The meeting is being convened with a move to remove the Board of Directors of Arden House Projects forthwith on the grounds stated in the letter handed to Chairperson Amy Mathewson on Wednesday 4th July 2018.”[34]It referred to attachments which were a form to confirm whether or not the person would attend, a blank letter for resignation, and a further letter which referred to the Data Protection Act 1998 and the General Data Protection Regulation (GDPR) and stated in relation to the GDPR “of 25 May 2018, all documentation (electronic and paper) you hold pertaining to Arden House Projects must be returned to Margaret Gear, Manager. Failure to do so will result in us having to inform the Information Commissioner.”[35]The letter was signed by “Margaret Gear, Manager”. It had been drafted by Mrs Julie Johnson, a member of staff, using documentation prepared for AGMs as a style.[36]On 6 July 2018 Ms Lesley Elias, a Link Office employed by Fife Council who acted to assist charities supported by that Council, including the respondent, received by email from the clamant, sent from the general email account of the respondent, an invitation to attend the meeting on 24 July 2018, and asking if she intended to attend. It also stated “Please can you restrain [sic] from discussing this with any of the board members until Monday morning. Please see attached letter which will be handed to all board members by 5pm today”. That letter was the letter dated 6 July 2018 and its attachments.[37]Ms Elias wrote to the claimant by email at 12.19 that day stating: “I can advise that as Manager of Arden House Projects you are unable to call an EGM or AGM. Only the Board of Directors have the power to give notice and call an EGM or AGM.”[38]It confirmed that the letter handed to Ms Mathewson on 4 July 2018 was being “considered and action taken to address the issues raised.”[39]The letter dated 6 July 2018 to each board member was delivered to their home addresses by hand during the afternoon that day by the claimant and Mrs Johnson her colleague. At the time the claimant was doing so, she had not read the email from Ms Elias. She saw it on return to the office the following day. The claimant took no action in response to that advice.[40]On 10 July 2018 the respondent’s board met, and decided to suspend the claimant.[41]The claimant was suspended from her employment, on full pay, and was confirmed by letter of that date delivered to her whilst at work by Ms Mathewson and Mr Stuart. The letter also stated: “You are required to co-operate in our investigations and may be required to attend the workplace for investigative interviews or disciplinary hearings. However you are not otherwise required to carry out any of your duties and you should not attend the workplace unless authorised by the Board to do so. You must not communicate with any of our employees, contractors or customers unless authorised by the Board. However you are required to be available to answer any wor-related queries.”[42]The claimant left the premises that day. She shortly thereafter telephoned Ms Elias, who passed her on to Ms Fiona McKay, an employee of Fife Council who was Ms Elias’ superior, and was told by her also that she did not have the authority to call an EGM. Later that day staff of the respondent called at the claimant’s home to offer her their support. The claimant did not take any step to seek to recall the terms of the letter of 6 July 2018.[43]On 11 July 2018 a further board meeting of the respondent was held at which Mr Thomson one of its directors indicated that he had heard about the meeting of 5 July 2018. Mr Munro confirmed that it had taken place and that he had been present having been invited to it by the claimant. He said that she had not told him the purpose of the meeting and did not realise it until the meeting started.[44]Mr Murphy attended a further board meeting of the respondent on 12 July 2018. He had prior experience both of investigations whilst a trade union representative, and in his role as CEO. He suggested that Ms McAulay conduct an investigation into the events of 4 – 6 July 2018. He agreed to attend a staff meeting to allay concerns that they may have. There was a discussion about his role and it was agreed that he should not take on the role of investigatory as that would constrain his ability to participate more generally.[45]A meeting with staff took place on 12 July 2018 at which Mr Murphy spoke, and answered questions. He sought to reassure staff that the respondent was still able to operate, but that the claimant would not be carrying out her role as manager in the meantime.[46]On 16 July 2018 the board agreed at a meeting to ask Ms Eileen Orr, the assistant manager, to act up as manager on a temporary basis. She agreed to do so without seeking an increase in pay.[47]The respondent thereafter instructed Frances McAulay, an experienced independent solicitor who had substantial experience in the third sector, trading as Square Peg HR, to carry out an investigation into the events of 4 – 6 July 2018. She met 13 witnesses, including the claimant on 27 July 2018, six members of staff, six directors, and Ms Elias the Link Officer. She obtained documentation. She concluded that she had from that sufficient to provide a report.[48]She submitted a report dated 15 August 2018 to the respondent. It found that the respondent had not followed proper governance by not acting on the Articles, did not have adequate processes in place for support and supervision of the Manager, and did not have good communication with staff. It found that the claimant’s allegation of bullying and harassment by the board was not justified, the sending of the letters of 4 and 6 July 2018 was “wholly unacceptable”, that the staff had unrealistic expectations of the directors, that the terms of the Constitution were clear and unambiguous, the claimant had not been authorised to call an EGM, her view that she could was “naïve and unsupportable”, that as the claimant had not replied to an email relating to when she had seen the email from Ms Elias sent on 6 July 2018 she drew the inference that the claimant had done so before delivering letters to board members that day, that she did not accept the claimant’s evidence that she had not told Mr Munro about the meeting called on 5 July 2018, which meeting had been called without board approval and was in breach of fire regulations, that there were other avenues open to the claimant to address her concerns at the board, and notwithstanding that the claimant alleged that she was at the end of her tether the matter should proceed to a disciplinary hearing.[49]Whilst she was carrying out her investigations for that report Mr Murphy was giving support and advice to the Board on how to handle matters.[50]On or around 15 August 2018 the claimant telephoned TPT Retirement Solutions (“TPT”), who managed the defined benefit pension scheme for the respondent, to state that she no longer wished to contribute to the pensions scheme. They emailed the respondent that day to ask for a leaving date. The claimant had made that call without giving notice to the respondent that she wished to change pension arrangements.[51]The respondent had operated a defined benefit pension scheme, along with other employers, for many years previously. The scheme was in deficit. Contributions were being made to it, and for that to continue one member of staff required to be a member of it. The claimant had been that member for the respondent. She did not pay any employee pension contributions to do so. They were paid by the respondent. If there were no current employees who were members of that scheme, the deficit for that employer crystallised and became fully payable. For the respondent that crystallisation would have required a sum of about £37,000.[52]The respondent arranged that another employee, Mrs Eileen Orr, become the member of that defined benefit scheme, such that no crystallisation occurred. The claimant left the scheme after Mrs Orr had later been admitted to it. No crystallisation of the sums due took place as a result.[53]At a further board meeting on 23 August 2018 the board agreed to give Mrs Orr an increase in pay to reflect the duties she was carrying out, and a temporary contract of employment for the role. She accepted that. She carried out the role on a temporary basis, which ceased in July 2019.[54]At the same meeting Mr Thomson reported that he had been informed by Mr Jim Gear that he had suffered a back injury and he had asked him not to move boxes as a result, and secondly that keys for vehicles owned by the respondent were kept behind visors, with doors unlocked, so that they could be picked up by an employee of the manufacturer to be maintained overnight.[55]It was also reported to that meeting that two further issues had come to the attention of the respondent in relation to the claimant. They were the email of 15 August 2018 in relation to the pension, and payments for Lyndsey Young in relation to hours allegedly not worked, an allegation which had come from Mrs Orr. The respondent did not have the funds to instruct Ms McAulay to investigate them, and Mr Murphy volunteered to do so without charge. That offer was accepted. After consulting Peninsula, he ceased to have a role in providing the respondent with material advice on the issues being addressed by him, and became the investigating officer for what were at that stage those two issues which were in addition to the investigation by Ms McAulay.[56]On 5 September 2018 Mr Murphy wrote to the claimant to confirm that he had been asked to investigate those two further issues being(i) that she had contacted the Pension Trust and sought to remove herself from the scheme and(ii) she had been authorising payments for her daughter, Lyndsey Young, but that she had routinely worked fewer hours than specified in the contract.[57]A first meeting was arranged for 6 September 2018 by that letter. The claimant had said to Mr Murphy in a telephone call he had made to her before sending the letter that she would bring a solicitor, and he confirmed in the letter that she had only a right to be accompanied by a fellow employee or trade union representative.[58]The claimant attended with a colleague, and Mr Murphy also attended, at the meeting on 6 September 2018. The claimant claimed that she had received legal advice that she was entitled to record the meeting. Mr Murphy explained that that was not appropriate. The claimant left the meeting when he did not agree to that.[59]Two further issues were reported to the respondent and included in Mr Murphy’s investigation. They were confirmed in a letter to the claimant dated 17 September 2018. The additional issues were (following on from the earlier numbering for Mr Murphy’s investigation) (iii) contacting employees at work and at home whilst suspended and prohibited from doing so and (iv) making changes to annual leave entitlements in contracts of employment without board approval. The letter proposed a meeting on 26 September 2018.[60]On 20 September 2018 at a board meeting of the respondent Mr Thomson reported that Mr Gear had been issued with a letter to stop his practice of subcontracting driving duties to a third party who he paid in cash.[61]Mr Murphy took a statement from the claimant at their meeting on 26 September 2018. She denied the allegations and said that there were timesheet records. He took a statement from Mrs Orr. He sought to take statements from some other staff, but they told him that they were fearful of reprisals from the claimant if they did so, and would only provide a statement if their anonymity was preserved. Mr Murphy agreed to do so in order to have the evidence. The members of staff he spoke to were those suggested by Mr Thomson, and were intended to be a reasonable spread of staff.[62]There were three statements taken from such witnesses. They stated that the claimant had sought to contact them to ask about her suspension.[63]Mr Murphy sent the claimant her own statement by letter dated 15 October 2018.[64]Mr Murphy sought documentation as part of his investigation. He obtained timesheets for Lyndsey Young. He noted that they did not provide times for attendance, but only the days worked and total hours claimed. All bar one was signed by the claimant alone. The other one was signed by the claimant and Mrs Orr.[65]Mr Murphy concluded his report on 22 October 2018. He recommended that three of the four issues proceed to a disciplinary hearing. The issue that did not proceed, on his recommendation, was the fourth, in relation to contracts of employment and provision for higher annual leave.[66]Mr Murphy produced his report initially with the statements of the three witnesses who had given evidence on the basis of anonymity providing their names. He prepared a second version of his report which did not have the names of those three witnesses, who were instead described as witnesses A, B and C, and with redactions from those statements made in an attempt not to disclose their identity.[67]The claimant was required to attend a disciplinary hearing by letter dated 26 October 2018. It narrated four allegations as follows: “1. your alleged conduct in sending the letters of 4th and 6th July together with the various attachments to the Board and in arranging and holding the meeting on 5th July unbeknown to all but one Board member, all with a view to removing the current Board, your employer; 2. you allegedly contacted the Pensions Trust and sought to remove yourself from the Scheme with a view to causing significant financial harm to the organisation; 3. you are alleged to have been authorising salary payments to Lyndsey Young for her contracted hours, whilst allegedly knowing that she routinely worked fewer hours than specified in her contract; 4. you allegedly had been contacting employees of Arden House at work and at home whilst suspended and prohibited from doing so”.[68]The letter provided documents which included the two investigation reports and supporting evidence. The second investigation report had the anonymised and redacted versions of witness statements A, B and C.[69]The letter stated that if she was not able to provide a satisfactory explanation for the matters set out, her employment may be terminated but that a decision would not be made until she had an opportunity to put forward everything that she wished to raise, and the hearing had been concluded. It further stated that the meeting would take place on 29 October 2018, and be held by two board members Allan Thomson and Elizabeth Cranfield, with Mr Murphy attending as note taker.[70]The meeting took place on that date, with the claimant accompanied by a fellow employee Louise Simpson. A minute of that meeting was taken by Mr Murphy and is a reasonably accurate record of it. His handwritten notes were signed by those attending it. On allegation one, which was in relation to the letters of 4 and 6 July 2018, the claimant stated that she was seeking to add to the board not to remove it, and referred to the statement she had given. On allegation two in relation to the pension she said that everything she wished to say was in her statement. On allegation three in relation to the payments to her daughter Lyndsey Young she again referred only to her statement. On allegation four in relation to contacting staff during her suspension she referred to the statement and that she had called Arden House Project about her mother, and the second time she did so was on the advice of the police.[71]She was asked if she had any mitigating circumstances to put forward, and said no. The hearing was then adjourned.[72]On 1 November 2018 the respondent wrote to the claimant stating that they did not feel that she had taken the opportunity to respond to the allegations made, and that they had arranged a further disciplinary hearing for 5 November 2018.[73]That disciplinary hearing took place on that date, with the same attendees save that on this occasion the claimant was accompanied by her husband. A minute of that meeting was taken by Mr Murphy and is a reasonably accurate record of it (some aspects of it are referred to in the discussion below). His handwritten notes were signed by those attending it.[74]The claimant expanded a little on what she had said previously, but latterly refused to answer questions, or said that she had already answered the question.[75]Mr Thomson and Miss Cranfield discussed matters after the hearing. They separately came to the conclusion that all four allegations had been established, and that there should be a dismissal. They took advice from Peninsula, who were sent the minutes of the meeting. They wished further investigation to be made into the suggestion the claimant’s husband had made that all staff left work early.[76]Mr Murphy undertook that investigation, and he took statements from Mr Thomson himself, Mrs Orr, Mrs Tara Barnes and Mrs Diane Cornes all of which stated that staff other than Ms Young did not leave early. On having those statements, the decision to dismiss was confirmed.[77]Mr Thomson wrote to inform her of the decision to dismiss her summarily by letter dated 12 November 2018.[78]On 16 November 2018 the claimant’s solicitors, Messrs McKenzies, wrote to Ms Mathewson of the respondent. It had the heading of the claimant’s name, and stated that the claimant, their client, wished to appeal the decision. The letter stated in relation to the four allegations, in summary: 1. This was not properly a disciplinary matter and the claimant was entitled to write the letter she did 2. The claimant was entitled to contact the pension administrators as she did 3. The allegation was denied 4. The claimant could not properly be prevented from making contact with any person she chooses, and those allegedly contacted had not been identified.[79]Ms Mathewson was in poor health and passed that letter to Mr Thomson to deal with. He consulted with Peninsula. He was advised not to accept the letter from solicitors lest that lead to them seeking to appear at the appeal hearing, or similarly become directly involved in the process.[80]On 19 November 2018 Mr Thomson called the claimant by telephone after the letter was passed to him, and said that he had taken advice. He advised her that the letter of appeal had to come from her personally, not solicitors. She replied to the effect that he should speak to the solicitors[81]Mr Thomson wrote to the claimant on 20 November 2018 to state that position and request the appeal from her personally. The letter was sent by courier to the claimant. The claimant received the envelope in which it was sent but did not open the envelope containing the letter. She wrote on the envelope “send to my lawyers”, and it was returned unopened to the respondent.[82]The respondent did not communicate with Messrs McKenzies.[83]The claimant did not send a letter of appeal personally.[84]No appeal hearing took place.[85]A complaint was made to the Office of the Scottish Charity Regulator (OSCR) by a person not identified in evidence in relation to matters including the dismissal of the claimant. After an investigation OSCR concluded that there was no matter requiring attention by them. That was intimated by letter dated 24 September 2018. Respondent’s submissions[86]Mr Lane produced a written submission, and supplemented that orally in reply to Mrs Sneddon. The following is a basic summary. He argued that the reason for dismissal was conduct, and that it was fair in terms of section 98(4) of the 1996 Act, together with the Burchell principles (referred to below). He referred to the evidence on which the respondent made its decision, which included evidence from the two investigation reports, and in respect of the first to third allegations the claimant’s unsatisfactory account of her actions at the disciplinary hearings. He argued that the dismissal was within the range of penalties open to a reasonable employer as explained in Iceland (referred to below).[87]He argued that the procedure was fair. In regard to(i) the anonymised and redacted statements, he argued that the respondent had dealt with matters as a reasonable employer could, under reference to Hitt,(ii) the four statements taken on 9 November 2018 and not disclosed to the respondent he argued that there were in relation to one discrete point made during the second disciplinary hearing and(iii) how the appeal was handled he argued that what was required of the employee was a very quick action, and that the respondent was entitled to do so having regard to its concerns over the involvement of solicitors in what it regarded as an internal matter, particularly as there had been an earlier matter involving a solicitor that had caused substantial time to be expended. He made reference further to the cases of Small and Hadjioannu. Claimant’s submissions[88]Mrs Sneddon accepted that conduct was the reason for dismissal and that that was potentially fair, but argued that it was unfair under section 98(4). She also referred to the Burchell principles. She argued that the respondent did not and could not hold a reasonable belief, had not undertaken a reasonable investigation and that the decision to dismiss was unfair. The entire process had been fatally flawed throughout.[89]On the first allegations the letter had been signed by almost all staff, and handed to Ms Mathewson at the board meeting on 4 July 2018 with Eileen Orr in attendance. It was not a matter of the claimant acting alone. Before doing so the claimant had asked which board members were intending to resign. No satisfactory explanation had been given for the difference in treatment. The letter had been issued as a consequence of the staff feeling frustrated and as a last resort. There had been an allegation that staff were put under pressure by the claimant to sign the letter, but there was no evidence for that. On 5 July 2018 there was a meeting of staff with potential board members. It had not been convened to remove the board. The letter of 6 July 2018 was signed by the claimant as representing the staff, and should not have used the words that it did in regard to the removal of the board, but was in reality seeking to get the board to hold a meeting with staff to resolve their complaints. In so far as the governance position was concerned she accepted(i) that the claimant, and staff, were not members under the Articles, and that those Articles did govern the respondent(ii) that the Constitution was used both by directors and staff to regulate the affairs of the respondent, and that under its terms the claimant was not a member of the board of directors and that(iii) the Constitution did not bear the interpretation that the staff, including the claimant, put on it. She argued however that they had made a genuine mistake and believed that they were members because they had voted in some way at the AGM. They had believed that they were members, and fell within the provisions of the clause regarding the calling of an EGM. They had taken this unfortunate step but that shows that they were at the end of their tether. There was an error in the wording but notwithstanding that there was no intention to remove the board of directors.[90]She further argued that the claimant had not seen the email from the Link Officer that day until after the letters had been delivered. By the time she did so it was too late. Only the claimant had been in a position to sign the letter of 6 July 2018 – effectively she was taking one for the team and putting her neck on the line.[91]To suspend the claimant was unjustified. There was no evidence that anyone with sufficient knowledge was available to advise on the appropriate steps. Advice had been sought by the respondent from Fife Council, but that was the blind leading the blind. Only the claimant had been suspended. Mr Thomson had taken umbrage at the letter of 6 July 2018 and decided at that point to get rid of the claimant by whatever means necessary.[92]The investigation by Ms McAulay was doomed from the start, as Mr Thomson had given her the names of individuals to speak to. He had not been in a position to do so at that time, having only just become involved. The claimant had met her and given a statement that answered all the questions. When it came to the first disciplinary hearing she had only had two days over a weekend to look over the papers, and had not been able to take legal advice. She had not known that she could question the evidence in the report. Her position was in contrast to that of the respondent which had received advice from external agencies.[93]The respondent had not held a genuine belief. The reasons given in the dismissal letter were vague and not reasonable. The investigation had not been sufficient. If this was misconduct, mitigation should have been considered. The respondent had however determined that only dismissal could be imposed.[94]The remaining allegations were pursued as the respondent was targeting the claimant, to ensure that she was not retained. Mr Murphy was no longer an independent and impartial adviser. He had developed a close relationship with the board and Mr Thomson in particular. He should not have been the investigator. The anonymised and redacted statements were of significant concern. There was no believable evidence of staff being concerned at reprisals. Only specific individuals were contacted. The sole purpose was to gather dirt. The findings made were not supported by the statements.[95]In relation to the pension, there was no evidence that the intent the claimant had was to crystallise the debt. There had been a difference in wording between investigation and disciplinary hearing. The evidence showed how committed the claimant had been to the organisation, and her mother was a service user. It was not reasonable to conclude that she had acted as alleged.[96]On the issue of the hours her daughter worked, there was no sufficient evidence. One of those who gave evidence may have benefitted from the claimant’s suspension. There were other means by which evidence could have been taken which were not followed, such as speaking to other staff, checking documents such as rotas. The evidence showed that the claimant’s daughter was not paid for more hours than she worked.[97]The final allegation was of no consequence. It was not gross misconduct. There were social reasons for the claimant contacting staff, who also contacted her.[98]The sanction of dismissal was not open to the respondent, who did not know how to apply their own disciplinary procedure.[99]Procedurally, the hearings were hugely flawed. Mr Murphy was present, and should not have been. There was a lack of notice, and preparation time. The claimant had taken advice and had provided a full explanation which she referred to. Statements had been taken after the second disciplinary hearing, and the appropriate step was to adjourn the hearing, provide the statements, and reconvene. The witnesses had included the decision maker.[100]Rev Cranfield had been led by Mr Thomson, and he was in reality the decision maker. He had played an integral role. He had brought allegations to the board in relation to the claimant and her family.[101]There had been contradictory evidence as to how the decision was arrived at. Mr Thomson spoke of a discussion in the car after the meeting, which Reverend Cranfield did not mention. She had indicated that they had considered matters separately. The submission was that that was not the case.[102]The internal appeal was also fatally flawed. Against the disciplinary policy Mr Thomson had been involved. The letter had gone to Amy Mathewson, the Chair, but been passed to him. He had not given an adequate explanation as to that. Nothing in the policy said that the appeal could not come from solicitors. The board had involved external parties. The claimant was only given one extra day to remedy an issue that did not arise in the first place. Mr Thomson wanted to ensure that the claimant did not get an opportunity to appeal as that risked a decision to set aside the dismissal.[103]She referred to the Schedule of Loss, and to a document submitted prior to submissions being made, without objection, from the claimant’s GP that referred to work related stress and depression. The law (i) The reason
The law
[104]It is for the respondent to prove the reason for a dismissal under section 98(1) and (2) of the Employment Rights Act 1996 (“the Act”).[105]If the reason proved by the employer is not one that is potentially fair under section 98(2) of the Act, the dismissal is unfair in law. Conduct is a potentially fair reason for dismissal. (ii) Fairness[106]If the reason for dismissal is one that is potentially fair, the issue of whether it is fair or not is determined under section 98(4) of the Act which states that it “depends on whether in the circumstances…..the employer acted reasonably or unreasonably in treating [that reason] as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.”[107]That section was examined by the Supreme Court in Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16. In particular the Supreme Court considered whether the test laid down in BHS v Burchell [1978] IRLR 379 remained applicable. Lord Wilson considered that no harm had been done to the application of the test in section 98(4) by the principles in that case, although it had not concerned that provision. He concluded that the test was consistent with the statutory provision. Lady Hale concluded that that case was not the one to review that line of authority, and that Tribunals remained bound by it.[108]The Burchell test remains authoritative guidance for cases of dismissal on the ground of conduct in circumstances such as the present. It has three elements(i) Did the respondent have in fact a belief as to conduct?(ii) Was that belief reasonable?(iii) Was it based on a reasonable investigation?[109]It is supplemented by Iceland Frozen Foods Ltd v Jones [1982] ICR 432 which included the following summary: “in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what the right course to adopt for that of the employer; in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another; the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”[110]The manner in which the Employment Tribunal should approach the determination of the fairness or otherwise of a dismissal under s 98(4) was considered and summarised by the Court of Appeal in Tayeh v Barchester Healthcare Ltd [2013] IRLR 387.[111]Lord Bridge in Polkey v AE Dayton Services [1988] ICR 142, a House of Lords decision, said this after referring to the employer establishing potentially fair reasons for dismissal, including that of misconduct: “in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.”[112]The focus is on the evidence before the employer at the time of the decision to dismiss, rather than on the evidence before the Tribunal. In London Ambulance Service v Small [2009] IRLR 563 Lord Justice Mummery in the Court of Appeal said this; “It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal.”[113]The band of reasonable responses has also been held in Sainsburys plc v Hitt [2003] IRLR 223 to apply to all aspects of the disciplinary procedure.[114]Where allegations of inconsistency of treatment are made, the allegedly similar situations must truly be similar (Hadjioannou v Coral Casinos Ltd [1981] IRLR 352.[115]Anonymised statements were taken in this case. That matter is the subject of guidance in Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235. If the employee is given a full opportunity to deny the allegations but does not do so adequately, this may reinforce the employer's case (Parker v Clifford Dunn Ltd [1979] IRLR 56). The Court of Appeal made clear in Harris and Shepherd v Courage (Eastern) Ltd [1982] IRLR 509 that if the evidence produced is, in the absence of an explanation, sufficiently indicative of guilt, then a dismissal may well be fair if that explanation is not given.[116]Although there is an onus on the employer to prove the reason for dismissal, there is no onus on either party to prove fairness or unfairness.[117]The Tribunal is required to take into account the terms of the ACAS Code of Practice on Disciplinary and Grievance Procedures. It is not bound by it. The following provisions may be relevant: “4.3(4) “Employers should carry out any necessary investigations to establish the facts of the case. 9. If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification… 23. Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence…. [Under the heading - Provide employees with an opportunity to appeal]26. Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.27. The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case. ”[118]ACAS also issued a Guide on Discipline and Grievances at Work. It does not have the status of a Code, but has comments that provide a measure of guidance, and does so in more detail than the Code. Under the heading “investigating cases” is the following: “Most disciplinary situations will not require suspension. It should only be considered exceptionally if there is a serious allegation of misconduct and:• there are reasonable grounds to believe that the employee might seek to tamper with or destroy evidence, influence witnesses and/or sway an investigation into the disciplinary allegation• working relationships have severely broken down to the point that there is a genuine risk to other employees, property, customers or other business interests if the employee remains in the workplace• the employee is the subject of criminal proceedings which may affect whether they can do their job……. When investigating a disciplinary matter take care to deal with the employee in a fair and reasonable manner. The nature and extent of the investigation will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against.”[119]Whether or not a matter might be regarded as one of gross misconduct has been the subject of authority. It must be an act which is repudiatory conduct Wilson v Racher [1974] ICR 428. The ACAS Code states that disciplinary rules should give examples. One such example the Code gives is “serious insubordination”. Whilst there was a list of gross misconduct offences, that was not on it. But it was not exhaustive and serious subordination is listed in the Code, such that I require to take account of that. The question is whether it was reasonable for the employer to have regarded the acts as amounting to gross misconduct – Eastman Homes Partnership Ltd v Cunningham EAT/0272/13. If the employer’s view was that the conduct was serious enough to be regarded as gross misconduct, and if that was objectively justifiable, that was a circumstance to consider in assessing whether or not it was reasonable for the employer to have treated the conduct as a sufficient reason to dismiss. But a finding that there was gross misconduct does not lead inevitably to a fair dismissal. In Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854 the Tribunal suggested that where gross misconduct was found that is determinative, but the EAT held that that was in error, as it gave no scope for consideration of whether mitigating factors rendered the dismissal unfair, such as long service, the consequences of dismissal, and a previous unblemished record.[120]An appeal is a part of the process for considering the fairness of dismissal – West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192 in which it was held that a failure to permit an employee to exercise a contractual right of appeal was of itself capable of rendering a fair dismissal unfair and that employers must act fairly in relation to the whole of the dismissal procedures. In National Coal Board v Nash (reported in The Times, 7 May 1986) the EAT held that Tipton applies equally to the denial of a non-contractual right of appeal. The importance of an appeal in the context of fairness was referred to in Taylor v OCS Group [2006] ICR 1602 and more recently in Mirab v Mentor Graphics UK Ltd UKEAT/0172/17. Not every procedural defect at the stage of an appeal will render the dismissal unfair – Westminster City Council v Cabaj [1996] ICR 960. The essential question is whether the failure denied the employee the opportunity of demonstrating that the reason for dismissal was not a sufficient one. (ii) Remedy[121]In the event of a finding of unfair dismissal, a basic and compensatory award may be made under sections 119 and 122 of the Employment Rights Act 1996, the latter reflecting the losses sustained by the claimant as a result of the dismissal. In respect of the latter it may be appropriate to make a deduction under the principle derived from Polkey, if it is held that the dismissal was procedurally unfair but a fair dismissal would have taken place had the procedure followed been fair.[122]The Tribunal may reduce the basic and compensatory awards under sections 122(2) and 123(6) of the Act respectively in the event of contributory conduct by the claimant. The amount of the compensatory award is determined under section 123 and is “such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.[123]In Nelson v BBC (No. 2) [1979] IRLR 346 it was held that in order for there to be contribution the conduct required to be culpable or blameworthy and included “perverse, foolish or if I may use a colloquialism, bloody minded as well as some, but not all, sorts of unreasonable conduct.” The focus is on the acts of the claimant, not of the respondent employer – Sandwell and another v Westwood EAT 0032/09. Guidance on the assessment of contribution was given by the Court of Appeal in Hollier v Plysu Ltd [1983] IRLR 260, which referred to taking a broad, common sense view of the situation in deciding what part the claimant’s conduct played in the dismissal. At the EAT level the Tribunal proposed contribution levels of 100%, 75%, 50% and 25%. That was not specifically endorsed by the Court of Appeal. I consider that the issue is one of fact and degree dependent on the circumstances of the case. Observations on
The Evidence
[124]Mr Murphy was I considered a credible and reliable witness. He had been brought in by the respondent from Fife Voluntary Action. He initially had been providing guidance and support, including recommending that Ms McAulay be the investigator, and then had become an investigator for four separate matters. His report had not recommended that one matter proceed at that stage. That indicated to me that he was assessing matters independently and impartially. There were some matters on which I had concerns as noted below, but they were ones as to judgment rather than the credibility or reliability of his evidence. I did not accept the argument that he had become so closely aligned with the board of directors that he was not impartial, or that he had been out to seek evidence against the claimant. I did not accept the argument that he could not be the investigator, or act as note taker at the disciplinary hearings. I noted that there was no objection taken to his doing so, although that had been intimated in the letters calling the meetings. His notes were also agreed to be accurate.[125]Mr Thomson was also I considered a credible and reliable witness. He was candid and straightforward in answering critical questions, and accepted on a number of occasions that there were areas in which matters could have been handled better both generally and by him in particular. Although the claimant alleged that a decision to dismiss had been taken by him at about the time of the suspension, I accepted his evidence that that was not the case, that he had wished to conduct a fair process, and took the decision after the second disciplinary hearing, That there was a second such hearing at all is indicative of a desire to hear from the claimant fully before taking a decision. I did not accept the argument that he had led Rev Cranfield into her decision. A number of matters in the claimant’s evidence were not put to him, as noted below.[126]Rev Canfield was I considered an obviously honest witness. Her memory of some detail was imperfect, but the fact that she admitted that heightened the sense that she was simply being honest. I considered that she was reliable. She spoke convincingly of coming to her own view independently of that of Mr Thomson, and her own desire that the process be a fair and proper one. She had been a board member for over 20 years, and had been abroad when the material events happened. She was concerned in particular at the first disciplinary hearing that the claimant had not given a proper account, and was instrumental in there being a second hearing. At that second hearing, after a period of initial questions, she sought an adjournment to discuss trying to find a better way to obtain answers from the claimant as to what had happened and why. She herself asked a number of questions seeking to elicit explanations from the claimant. These steps were, I had no doubt, borne of a genuine desire to have the matter heard fairly by her, independently of that of Mr Thomson. They contradicted the suggestion that there had been a decision taken at a far earlier stage by him alone, and that Mr Thomson had led her to her own conclusion. It was not put to her in such terms, that she had been led to her decision by Mr Thomson and Mr Murphy, although that was the claimant’s evidence. I do not consider that she was so led.[127]The claimant’s evidence I have been driven to conclude was not reliable. There were a number of areas on matters of importance where her evidence was contradicted by documentation, or her own earlier version of events. The most obvious was her evidence that a meeting at the respondent’s premises with staff and third parties had not taken place on 5 July 2018, but prior to the board meeting the day before. She said that it was “100% not” on 5 July 2018. That evidence was contradicted by her statement to Ms McAulay, by the other evidence Ms McAulay referred to in her report the remarks of Mr Munro at the board meeting on 11 July 2018 and to his own evidence to Ms McAulay. It was not suggested in the disciplinary meetings that the meeting had been on an earlier date, even though that meeting was part of allegation one. In submission it was accepted by Mrs Sneddon that the date of the meeting was 5 July 2018. It had not been put to other witnesses that it had not been on that date, I am sure, as it had not been something Mrs Sneddon was aware would be raised. There are other issues that were similarly not put, such as that Mr Thomson had been handed a form to opt out of the pension by the claimant before she contacted the providers TPT.[128]The claimant further denied that she had invited Mr Munro to the meeting on 5 July 2018, both to Ms McAulay and before me. But Mr Munro had said to Ms McAulay when questioned that she had done that, he had earlier said the same to the board on 11 July 2018, and when the claimant gave her statement to Ms McAulay it was different to that she gave to me. To me her evidence was that three staff, including her, had spoken to him about it. To Ms McAulay she had said that she didn’t know, perhaps he had heard it was taking place, but she might have phoned him. When asked about when she had seen Ms Elias’ email dated 6 July 2018 in examination in chief, initially she said that it was either later that afternoon, or the morning of the following day. Latterly, still in examination in chief, she said that she was “positive” it was early the following morning. She said that she was positive, or 100% sure, about matters which later changed, or were wrong, such as in relation to the meeting which in fact took place on 5 July 2018 as already commented upon. Such purported certainty, later changed or shown to be in error, further undermines her reliability.[129]There were other aspects of evidence that were inconsistent with previous evidence she had provided. In her statement to Mr Murphy on the pensions issue, the claimant said that she had spoken to TPT, and “then” handed a form to Mr Murphy. In her evidence to me however she claimed that she had given him a form initially, before she spoke to TPT, and she sought to justify contacting TPT direct by his inaction in relation to that form. But that chronology in her evidence was inconsistent with that she had provided to Mr Murphy as described, in a statement she had accepted accurately recorded her comments to him. This was also, as noted, a matter not put in cross examination to Mr Thomson.[130]In relation to the issue over the hours her daughter worked, she has made various claims, firstly that her daughter did work the contractual hours, secondly that the time was made up elsewhere, and thirdly that other staff also worked less than the required hours. She said that those staff working less than the required hours included two of the employees who gave statements on 9 November 2018. Before me she said that her daughter sometimes did and sometimes did not work to 2.45pm, the contractual end time. Her changes of position and lack of candour do not assist her credibility and reliability.[131]When asked about the letter of 4 July 2018, and the terms of the Constitution, she said that the letter had been addressed to the Secretary. That was not however what the letter itself said. It was not addressed to anyone and was handed to Ms Mathewson, not to the Secretary Claire Robb.[132]Whilst a degree of difference in evidence may not wholly undermine reliability, I was concerned at the extent of the differences in the evidence of the claimant, and that they were on matters of importance. I was also concerned that some of the issues had not been put to witnesses in cross examination, the reason for which I have already commented upon. In addition, the claimant made allegations against board members and others which I did not consider were appropriate. One example is that she described the comments by Fiona McKay of Fife Council as “obnoxious, arrogant and ignorant”. What Ms McKay told her however was correct. Despite the comments from Ms Elias and Ms McKay, the claimant continued to allege that she was entitled to call the EGM both during the disciplinary hearing and even on appeal with the letter sent by her solicitors.[133]The claimant’s evidence as to her understanding of the Constitution, its place within the organisation, what had happened previously at Annual General Meetings and what that meant for staff who she claimed were members of the organisation, and her explanations as to the meeting on 5 July 2018 and the terms of the letters delivered on 6 July 2018 to all board members save Mr Munro I discuss in more detail later, but I agree with the remarks of Ms McAulay that her position was naïve and unsupportable.[134]The claimant had worked with the respondent for six years, and before that had been a board member, and the Chair of the organisation for a period. She was clearly a committed member of staff, who had the best interests of service users at heart. But her arguments that the letter of 6 July 2018 did not mean to refer to the removal of the board, but to seek a meeting with them in effect, was contradicted by the words she signed her name to. Whilst there clearly were concerns by staff about the board of directors, and as Ms McAulay set out in her report they were justified in some important respects, the manner in which the events unfolded, with a private meeting held at the respondent’s premises on 5 July 2018 involving staff, third parties and one board member, followed by an email to Ms Elias with the letter she was to give to other board members, and a request not to speak to those board members until the following Monday, with the text of the letters referring to removal of the board, attaching a letter of resignation, can only sensibly be read as evincing an intention to seek the removal of the board of directors of the employer. I am driven to conclude that her evidence to the contrary was not credible or reliable.[135]Evidence was also given by Mrs Julie Johnson. She was in general credible and reliable in what she said about the views of staff, including herself, as to the lack of direction and guidance from the board, and their sense of frustration at how matters developed.[136]The area that caused me surprise and substantial concern was when she commented over the terms of the Constitution. She said that the one in the Bundle was not the one that she had used, nor the one she worked with the claimant over when making funding applications. She could not recall its precise terms over calling meetings, but she thought that it said that members could call EGMs.[137]That was not the evidence of the claimant, Mr Thomson, or from the terms of Ms McAulay’s report. It appeared to me that the claimant would certainly have said if the incorrect Constitution was in the bundle, and she did not do that. She commented in particular on the terms of the Constitution, both in examination in chief, cross examination and in questioning from me. At no point was there any suggestion of this not being the correct, or only, version of it. It was accepted in submission that Ms Johnson was not correct.[138]In light of that, it appeared clear that Mrs Johnson was in error when she said that there was a different document, or that there may have been different wording for the issue of how to call an EGM. That she was wrong on such a significant matter did cause me to doubt her evidence more generally, but I took into account that she was not cross examined on any matter. She said that she had given the letter of 6 July 2018 to Mr Munro personally, although it had been suggested to the claimant that he had not received it, but I am prepared to accept Mrs Johnson’s evidence that that did occur.[139]Mr Mitchell gave brief evidence as to the meeting on 5 July 2018, as to the date of which he was unclear, but confirmed that there were discussions with regard to the organization and giving some form of impetus to the board, with comments by Mr Munro critical of how it was then operating. I accepted his evidence.
Discussion
[140]This case has raised a number of different issues. There are some unusual features of it, and areas where there was a sharp conflict in evidence. I shall seek to deal with each in turn. (a) Reason[141]I am in no doubt that the respondent has established that the reason for the dismissal was conduct. It related primarily to the events of 4 - 6 July 2018 as set out in the report from Ms McAulay, but also the three matters emanating from the report of Mr Murphy. That matter was not disputed. (b) Reasonableness[142]I will consider this issue firstly in respect of substantive matters, and secondly the procedure. (i) Fact of Belief[143]I am satisfied that the respondent did in fact hold the belief that the claimant was guilty of gross misconduct. Whilst that was disputed, I consider that there is no realistic argument to the contrary. (ii) Reasonableness of belief (a) July 2018 events[144]It was accepted in submission that the claimant was not a member under the terms of the Articles of Association. It was also accepted that that was the instrument that governed the operation of the respondent as a company limited by guarantee. It was not seriously argued that the construction of the Constitution was one that was legitimate for the claimant to have made.[145]It was said however that the staff, including the claimant, believed that they acted within it. There are however a number of difficulties with that. Firstly, under the term in question, only the Secretary could call an EGM. A member could not do so him or herself. Secondly, to do so, there were only two routes permissible. The first was on instruction from the Convenor, being the Chair Ms Mathewson. That did not apply. The second was one quarter of the Board of Directors members. The staff were not board of directors members. They could not reasonably have believed that they were. Thirdly, the argument was that they were members of the respondent, having been given a vote at the AGM. But what happened was not a vote in terms of company law. It was at its highest an indication of assent when asked for in respect of a question put of the board remaining in situ. There was not vote for individual board members, whether retiring on rotation or otherwise. It had no legal effect. There was no reasonable basis to conclude that that fact alone meant that the staff were members, let alone members required for the purposes of instructing the secretary to call an EGM. In short, the position was an unsupportable one.[146]I accept that it was a belief held by staff, including the claimant, and I accept that that belief was genuinely held, in the sense that was not in bad faith, but that does not I consider take matters very far. What was done was simply incompetent, on a matter of importance.[147]I consider, however, that the heart of the issue is not so much the calling improperly of the EGM, or sending that to Ms Elias in the manner that took place, but the terms of the letter of 6 July 2018 itself, and its reference to the removal of the board. The fact of what it said is important. The seeking to remove the board can only be gross insubordination in my opinion. It can only be a repudiatory breach of contract. It was signed by the claimant. It was her letter. That it was drafted by another is not entirely irrelevant, but of little relevance as the claimant signed the letter. As Mrs Sneddon put it, she put her own neck on the block by doing so. There are some points in Ms McAulay’s report which I do not agree with. The employer was not the board of directors, but the respondent. The board of directors were its controlling mind, but as a company limited by guarantee it is a legal entity in its own right. Prior to that it had been an unincorporated association, the legal status of which is not so clear. Secondly, the evidence before me was not the same as before her that the claimant had persuaded others to sign the letter of 4 July 2018. Whilst the claimant played a leading role in it, I accept the evidence that the staff generally shared her concerns. Thirdly, I am not persuaded that the letter of 4 July 2018, signed by almost all staff, and in terms that asked for a meeting rather than incompetently gave notice of it as was the case two days later, was itself a matter that justified disciplinary action against the claimant.[148]It was however the terms of the letter of 6 July 2018 that was at the least a matter that any reasonable employer would be able to take into account. It was a fact that would allow any reasonable employer to conclude that the claimant had committed an act of gross misconduct.[149]If therefore one leaves out of account everything else, the letter of 6 July 2018 is sufficient to allow consideration of dismissal. But context is also relevant and the holding of a meeting on the day before, without approval by the board, in breach of fire regulations, with the claimant not being honest about her inviting Mr Munro to it, led to the inference that the purpose of the meeting was to recruit a new board of directors to replace those who were to be removed either by persuading them to resign, or removing them at an EGM later (however incompetent the strategy to do so was in respect either of the Articles, or, so far as they may be relevant, the terms of the Constitution).[150]I am satisfied that the respondent had a reasonable belief, which was based on firstly the report of Ms McAulay, and secondly the remarks of the claimant, perhaps more tellingly the absence of remarks from the claimant, at the two disciplinary hearings. As to the report by Ms McAulay, I do not accept the criticisms made of it. She was an experienced independent solicitor. She believed that she had gathered sufficient evidence, and so stated in her report. She was balanced in her assessments – she was critical of the respondent in a number of respects, including governance, communication with staff, and systems in place for appraisal of the claimant, for example.[151]The report was critical of the claimant in a number of respects. Firstly, as to her reliance on the Constitution, she stated that the claimant’s position was “naïve and unsupportable”. Secondly, as to the calling of the meeting on 5 July 2018, the claimant’s evidence was rejected. When asked why Mr Munro had attended the claimant had said that she didn’t know, perhaps he had heard about it or perhaps she had phoned him, she couldn’t remember. Mr Munro had told her that he had been invited by the claimant, and Ms McAulay accepted that. She noted that the use of premises had not been authorised by the Chair, nor board, and that was contrary to fire regulations. She held that the purpose was not as the claimant suggested, to replace board members resigning, but in relation to the proposed EGM to remove the board. Thirdly the letter of 6 July 2018 was addressed to board members. Mr Munro had received a copy he had told her, but the claimant could not explain that. There was reference to the email to Lesley Elias that day, and her reply. Ms McAulay had emailed the claimant to ask her about that, and had not received a response. She drew the inference that the claimant had seen the reply from Ms Elias before delivering the letters that day, and so stated in her report. Fourthly, she expressed the view that staff had been led in their view of the board by the claimant. Fifthly the claimant’s allegations of bullying and harassment by the board were rejected, and the lack of support for the claimant’s allegations from Ms Elias was noted. Ms McAulay did however note that had there been robust and formal processes for support and supervision of the claimant in place, it is possible that issues may not have escalated. Sixthly the comment is made that if the claimant believed that trust and confidence had broken down, there were avenues available to her including raising the matter with Fife Council as primary funder, amongst others.[152]She concluded that the letters of 4 and 6 July 2018 were wholly unacceptable. She believed that the matter should proceed to a disciplinary hearing. That then was the background to the disciplinary hearing on this issue. The next issue is what the claimant said in relation to that at the disciplinary hearings. At the first, she effectively said nothing beyond referring to the statement she had given. At the second disciplinary hearing, arranged to give the claimant a chance to put forward her explanation for acting as she did, she did not particularly take the opportunity. There was an initial discussion over the status of the constitution. There was then an adjournment. After it, the question was asked as to why the letter of 6 July 2018 was sent, and the claimant initially denied that she was trying to remove the board, then referred to asking for a meeting with Mr Stuart three times, there was a comment as to board meetings, but latterly did not answer questions. She said that she did not write the letter, which is simply untrue. When asked whether she had seen the email from Lesley Elias she just said “No”. In truth, she had, albeit on 7 July 2018. She then repeated, “I’m not answering any more questions.”[153]That was most surprising. Whether it was made on legal advice (at that stage she was not advised by Mrs Sneddon) or not, the fact is that there was no real comment about, explanation or challenge to the report by Ms McAulay. For example, the timing of the receipt of Ms Elias’ email – which the claimant and Mrs Johnson told me was on 7 July 2018. That was not said at the disciplinary hearing save that she had not seen it. She was asked about the meeting on 5 July 2018 and was evasive in her answers, and said again, “I’ve answered that question.” She was asked, “why only one [board member invited to the meeting] if you were intending not to replace board members” and she repeated, “I’ve answered that question.” She was asked by Rev Cranfield, “Is there anything else you think will help us to understand this?” and said, “No, I’ve said it before …..I asked Alan Stuart for a meeting three times. I have a witness.” When asked about why this had not been raised at a board meeting she said that, “considering how the board treated us, not. There were people on the board who looked down their noses at us and that’s it in a nutshell.”[154]Given that the claimant had said so little at the disciplinary hearing, it appeared to me that the respondent was entitled to conclude that the claimant had acted as alleged in relation to this allegation. The investigation report provided the context for it, but the combination of the terms of the letter of 6 July 2018, the failure to explain the true nature of the 5 July 2018 meeting, the lack of candour, if not honesty, in relation to points of detail, were sufficient to entitle a reasonable employer so to conclude in relation to the meeting held on 5 July 2018, and the claimant’s letter with its enclosures delivered on 6 July 2018 to board members. I do not consider however that the same can be said of the letter from 12 staff, one of whom was the claimant, delivered on 4 July 2018, and on that issue I do not agree with Ms McAulay’s opinion. There was limited evidence that this was engineered by the claimant, rather than the view of staff. Its terms were also I consider important. It stated that the staff “would like to call” an EGM, and set out two “concerns”. I consider that it was a request. I have difficulty in understanding why such a request by a large majority of staff can be held to be gross misconduct by the claimant. In this regard, her actions do not appear to me to be materially different than colleagues, and the principle of Hadjioannu is, in this one respect, engaged. The other matters included, or were, acts of the claimant alone. The fact that the claimant was the Manager is not I consider sufficient to create a material difference for this purpose. The distinction to the two later matters are that the meeting was held in secret, and the claimant was the one who invited one board member to it despite her denials, and its purpose was to discuss board members to replace those who were, the strategy was, to be removed, and then more significantly it was the claimant who signed the letter of 6 July 2018, in terms seeking to call and EGM to remove the board of directors. For completeness I would also note that I do not agree with Ms McAulay’s report in stating that the claimant’s employer was the board of directors of the respondent. The respondent as a company limited by guarantee is a separate legal personality, and it is that legal personality that is the employer and the respondent in this case. It operates through its board of directors in accordance with the Articles. (ii) Pension[155]The claimant did not dispute that she had contacted TPT and say that she wished to opt out of the pension. The real question is why she did so. She was aware that she was in the scheme as the employee in order to maintain the respondent’s membership of it, and that if the respondent ceased to be a member a debt would crystallise. Against that background, the allegation was that she had done so to cause significant financial harm. When asked about that at the second disciplinary hearing she again said that she had answered the question. Rev Cranfield said, “Help us to understand”. Her reply was, “It was my prerogative.” She was asked about the instruction not to contact suppliers and said, “I’ve answered that”. She repeated that answer for subsequent questions on the point, until asked if there was anything else she wished to say, by Rev Cranfield, and she said, “No”.[156]In so far as the allegations over the pension are concerned, I consider that she did contact the provider TPT when instructed, reasonably, not to contact suppliers without board approval. They supplied pension services to the respondent. The respondent was the member of the scheme. It was not a scheme between claimant and TPT. The fact that she went direct to them, rather than to the respondent, does not assist the claimant in seeking to give an entirely innocent explanation.[157]The explanation she did give, as to not processing her private data when not present, was difficult to accept when her other data, such as the same information as to National Insurance number, was used for her other pension, to which the respondent contributed, and for payroll purposes.[158]Her changing evidence as to the chronology of her contacting TPT and passing a form to Mr Murphy was a concern, and was not put to him at all. She was aware that she was the only employee in the scheme, and that she was there to avoid the debt due crystallising. She was aware that the debt had been £37,000 or so in the previous year, and not likely to be hugely less than that. Whether her sole motivation was to cause harm is in more doubt, not least as it was pointed out in submission that her mother was a service user, but I am satisfied that she knew that by going direct to TPT, rather than to the respondent, she created a risk that they might crystallise the debt due immediately on her ceasing to be the employee under the scheme, and that that may cause the respondent further difficulty. That did not occur, however, and that is also a factor to take into account.[159]Against that background, I consider that the respondent was fully entitled to conclude that the claimant had acted with a view to causing harm to the respondent. Her failure to be candid, her explanation that it was her prerogative being at best inadequate, her contacting TPT direct in circumstances where she had been instructed not to, without board approval, and where she was the employee in the scheme for a particular purpose, all led to the inference that the motivation was not innocent. A reasonable employer could have come to that conclusion. (iii) Daughter’s hours[160]At the second disciplinary hearing the claimant did little more than repeat the sentence that she had answered the question. She made comments as to her daughter carrying out some hoovering. She was asked by Rev Cranfield, “Do you have evidence that Lyndsey did her full hours?” That was a direct, and sensible, question. It would expect to receive a direct and candid answer, but her husband replied, “Do you have evidence that she didn’t?” The failure of the claimant to provide a clear answer was I consider telling, and entitled the respondent to conclude that the allegations made from the report were credible. Latterly, Mr Gear alleged, “Nobody works their full shifts in there. Nobody.” The claimant said that Ms Mathewson had said it was swings and roundabouts, and that she had just remembered that. Statements were then taken, which contradicted that. A reasonable employer could have come to that conclusion, but I do have a concern that the investigation was not full, included one of the decision makers, and the detail was somewhat lacking. I address that further below. (iv) Contacting staff[161]Again, a similar pattern occurred at the disciplinary hearing. Rev Cranfield asked “Is there any evidence that you want to say or give us?” That was, once again, a sensible question. The reply was, “No – I’ve got the real evidence.” Rev Cranfield asked, “Do you want to say any more?” and the answer was, “No”. But Rev Cranfield persevered and asked, “Are you sure there’s nothing else you want to add or say?” There was then a discussion as to whether Mr Gear was to comment, and the claimant said that she didn’t need anybody to talk for her. She did not however add to her previous stance. (v) Conclusion[162]I consider that the respondent did have a reasonable belief in respect of allegations one and two. Whilst I have considered the argument that the reasons put forward in the letter of dismissal were vague and not reasonable, I do not consider that that renders the decision one on which there was not a reasonable belief on the allegations I have referred to above. The reasons were very succinctly expressed. For allegation one it was simply said, “Your allegations in some cases were directly contradicted by the evidence.” That was however expanded upon in the evidence before me, which I have set out and discussed above. I do not consider that the brief terms of the letter are sufficient to form a basis to change the assessment I have made. I also reject the argument that the claimant was being targeted. The pension issue arose from contact by TPT. The issue of her daughter’s hours arose from comments by a departing member of staff. The issue of contact with staff arose after that came to the respondent’s attention. It was suggested in cross examination that issues to do with her daughter and husband were evidence of the targeting, but I do not agree. In some matters, for example the injury to Mr Gear, Mr Thomson sought to be supportive. In others, such as leaving keys for vehicles in them, with the vehicle unlocked, or paying someone as a form of subcontractor in cash, there were risks to the organisation which it was perfectly proper to raise. (c) Reasonableness of investigation[163]In general terms I consider that there was a reasonable investigation. Both Ms McAulay and Mr Murphy were independent. I consider that both were impartial. I do not accept the criticisms made of them by Mrs Sneddon. Whilst it is true that Mr Murphy was originally not going to be the investigator, new issues came to light, and they were ones that did merit investigation. The cost of instructing Ms McAulay was a concern, and Mr Murphy offered to do so, effectively free of charge. For a charity under financial pressure that was I consider a decision that they were entitled to take, and one a reasonable employer in such circumstances could have taken. He then ceased to provide material advice to the board, although he did give some advice, acted as a link with Peninsula for the board. He acted as note taker at two meetings, which was not challenged at the time despite that being indicated in advance, and the claimant having access to legal advice. The notes are not challenged. The handwritten versions were signed by those present.[164]The claimant was given two opportunities to explain matters. She had been told in the letter calling her to the hearings that they could end in her dismissal. Whilst I had a substantial concern that the time between her receipt of the letter calling the first disciplinary hearing and it taking place was very short, less than one working day albeit over a weekend, that was affected by the holding of a second hearing later. It meant that for that second meeting she did have sufficient time to prepare for it, and did not suggest otherwise at the time.[165]The claimant’s position is that the decision was taken at about the time of the suspension, by Mr Thomson who then led Rev Cranfield to agree. That is not what the evidence shows, and I reject that argument. It was Rev Cranfield’s clear evidence that she wished to form her own view, conducted the hearings to do so, and did in fact form her own view. The minutes of the second disciplinary meeting, partly set out above, show that she did so. She sought to elicit from the claimant an explanation for what occurred. That supports her evidence that she was seeking to be fair. The very fact of the holding of a second disciplinary hearing, at the behest of the respondent not following application by the claimant, is evidence of the process being impartial and with a decision taken at the end of it. Both of the decision-makers agreed that the fourth allegation was the least serious of them, and did not amount to gross misconduct. That supports their evidence of making an assessment based on evidence. There is also the fact of the report by Mr Murphy commenting on a fourth allegation for him relating to terms of contracts, and that did not proceed, although the respondent could have done so with a further investigation.[166]I consider that in general terms there was a reasonable investigation, based on the two reports, and the terms of the two disciplinary hearings, particularly the second one.[167]There are however two issues in relation to the investigation that require comment. The first is that not all members of staff were spoken to either by Ms McAulay or Mr Murphy. Each of them considered that they had sufficient to form their reports, and I consider that that was a view they were entitled to come to. There is a reasonably wide discretion given in such circumstances, and although there could have been further statements taken, I do not consider that that was required of all reasonable employers.[168]The second relates to the use of anonymised and redacted statements. The guidance given in Linfood was not fully followed. It is not at all clear that that authority was ever considered. The respondent took advice at each step from Peninsula so that they could have the benefit of insurance cover from them, and that is one factor to have regard to. Whilst this is a small employer, and a charity, it did have that facility behind it. I have however considered that doing so did fall within the band of reasonableness of the reasonable employer. I accept Mr Murphy’s evidence that staff told him that they feared reprisals of some kind if they gave evidence, and at that stage the outcome of the proceedings was not known. The terms of the statements are brief, but adequate. They relate to two issues, the hours of the claimant’s daughter and contacting staff. The claimant had an opportunity to comment on them. She did not take that fully. (d) Procedure[169]In general terms I consider that the procedure followed was one that a reasonable employer could have decided upon. I reject the criticisms made of it by the claimant, save as referred to below. The first challenge chronologically was to the decision to suspend. Given the terms of a letter purporting incompetently to give notice of an EGM, which referred in terms to the removal of the board, signed by the claimant, suspension was I consider at the very least what a reasonable employer could do. As the ACAS Guide states, it is permissible where working relationships had broken down. That is effectively what the letter alleged. There was also a concern that the claimant might seek to influence others. The second was to the investigation by Ms McAulay. The report was substantial and balanced with criticisms of both respondent and claimant, and there was no real challenge to it at the disciplinary hearings. It is now suggested that Mr Murphy was not in a position to suggest to her who to interview, but I do not accept that, the list of interviewees was set out in the report and not challenged at the disciplinary meetings and in any event if Ms McAulay had wished to interview more staff she could have done. Her report was detailed, clearly set out, and convincingly argued (save for two matters on which I have not been able to agree with it, referred to above). The third challenge was to the decision to appoint Mr Murphy to be the investigator for the further allegations. It was within the range of reasonableness to appoint him, and there was nothing in his conduct of matters thereafter I consider was materially in error, or prejudicial. The fourth challenge was to Mr Murphy’s presence at the two disciplinary hearings. I consider again that his being so, as note-taker, was within the range of reasonable responses. No challenge to his being so was made at the time, and the accuracy of his notes has not been questioned, indeed the claimant signed his handwritten copies. For those matters I consider that the procedure adopted was one that a reasonable employer could have chosen.[170]There are however two further challenges which I consider are valid. The position in respect of the hours worked by Lesley Young, the claimant’s daughter, was at best a little confused. The claimant’s position to Mr Murphy was that her daughter did work her full hours, and that she had evidence of that. That was said to be in records of time worked, but when considered those records did not in fact establish that. The claimant did finally accept that her daughter had worked on occasions less than the contracted hours, by finishing earlier than the contracted time. She said that others did too. That had not been her initial position. Her representative at the second meeting, her husband, alleged (without any contradiction from her) that everyone worked less hours than required. Mr Murphy then conducted a further investigation into that issue, and secured four statements about it, one from Mr Thomson. On the face of them, they did not support the assertion made at the second disciplinary hearing to the effect that everyone worked less than the hours required. But those statements were not disclosed, nor were they known of or commented on by the claimant until in evidence before me. The claimant’s position was supported, at least to an extent, by the evidence before me of Mrs Johnson, which was that others, including two of those who had given a witness statement on 9 November 2018, had worked less than contracted hours. It is probable that had those supplementary statements been disclosed, the claimant would have tendered a statement from Mrs Johnson at the least. It was claimed by Mr Gear that everyone did work less hours than required, but Mrs Johnson herself did not accept that she did. This evidence would therefore likely have been contradicted had it been disclosed.[171]This issue is something of a double-edged sword for the claimant. On the one hand, if true, the claimant appears to have tolerated a situation in which less hours than required were worked, and was guilty of authorising payment for hours not worked. That was at a time of considerable financial strain. On the other hand, Ms Young was or at least may not have been alone, and the evidence from Mrs Johnson was that that had been disclosed earlier to Ms Mathewson, who had said that it was a case of swings and roundabouts given other issues, such as helping at other times. She was not cross examined. The claimant had also referred rather generally to that comment by Ms Mathewson at the end of the second disciplinary hearing. There was also an additional argument made that overall the time was worked by Ms Young by the other steps she took, which was perhaps a similar point to that made by Ms Mathewson in commenting as to swings and roundabouts, but that issue was not fully and fairly investigated. I have concluded that not to disclose these supplementary witness statements was a step that no reasonable employer would have taken. That is because it is fundamental to fairness to disclose the evidence on which reliance is placed. It is a matter referred to in the Code of Practice. I consider therefore that a decision taken on the basis of such undisclosed evidence is not one a reasonable employer could have taken.[172]Even though it is not material to the overall decision, as there was sufficient from the other matters to entitle a reasonable employer to regard them as gross misconduct, it is a strong factor to lead to the conclusion of an unfair dismissal. The effect of it is a matter that goes to remedy, rather than fairness, under Polkey.[173]I deal in more detail below with the second issue of how the appeal was handled. I have however concluded that the appeal procedure was not followed, and that the appeal should have been permitted to have been received. An appeal is an important step in a disciplinary process. The effective failure to permit it to be argued I consider is a further strong factor to lead to the conclusion of an unfair dismissal. Despite the contrary arguments put forward by Mr Lane, I have concluded that those two matters are sufficient to render the dismissal unfair under section 98(4). I have taken into account that the respondent is a small employer, and with limited resources, but it did have access to Peninsula for advice and support. (e) Reasonableness of Penalty[174]I consider that in relation to the meeting of 5 July 2018, and the letters of 6 July 2018, alone, the respondent was entitled to regard the matters as gross misconduct. It was an attempt, on the face of the letter, supported by other evidence and the lack of candid explanations, to remove the existing directors. That was something the decision-makers were entitled to regard as amounting to gross misconduct. Whilst gross insubordination was not on the list in the disciplinary hearing, it is referred to in the Code of Practice, and it is I consider self-evident that seeking to take a step of that kind in that manner was liable to lead to dismissal. It was made worse by the incompetency of the route taken, and by the issue of the contact with the pension administrators. For this purpose, I leave out of account the other two allegations.[175]The next question is whether dismissal was, in the circumstances, within the band of reasonable responses or not. Having considered that at some length, I have concluded that it was. It was sent to all directors. It was sent to a third party, Ms Elias. It had forms for resignation attached. There was an indication that if there was not a resignation, there would be a removal at the meeting being convened. It is true that there are grounds for criticism of the board. But that does not justify the step taken, in that manner.[176]If the intent was to secure a meeting, there were other ways to do so, as Ms McAulay pointed out. One obvious way was to write to the board, via the Chair or Secretary, to ask formally. Another was to raise a formal grievance. Another was to contact Fife Council – the claimant did so on other occasions, and was in contact with Lesley Elias by email on 6 July 2018 as noted. That there had been attempts to secure a meeting with Mr Stuart in the past without success is a factor, but not the only factor. A written approach had not been made. The grievance procedure had not been invoked, although others had done so, including against a board member. It does appear to me to be extremely odd, putting it at its lowest, if one is seeking to engineer a meeting with the board to do so by a letter that refers not to a meeting to discuss matters with the board members, but to their removal forthwith. That is simply and obviously not likely to achieve such a goal. Having regard to the evidence as a whole I do not accept the argument that the true intent was to seek a meeting. It is so contrary to the terms of the letter, the lack of candour by the claimant as to matters which included the meeting on 5 July 2018, and the email to Ms Elias which asked her not to speak to board members before the following Monday. It is entirely contrary to the common sense words used in the letter, and the context.[177]Moving straight to that obviously extreme option does not assist the claimant in arguing for mitigation, such mitigation that no reasonable employer would have dismissed. I consider that a reasonable employer could have dismissed, indeed I consider that most if not all would do so in such circumstances.[178]In coming to these conclusions, I do so with no pleasure. The claimant did not appear to have advice on matters that she might have had, and if other advice had been given matters may not have progressed as they did. The claimant clearly had been committed to the respondent as a charity, and worked hard to progress its purposes. There was no questioning of her having, prior to these matters, performed well as Manager. I also take account of the remark in the investigation report that had there been better support and supervision matters may not have escalated as they did. The respondent is far from blameless. But having a justified sense of grievance does not excuse the steps that the claimant did take to the extent that no reasonable employer could have dismissed her. She did, to use Mrs Sneddon’s phrase once again, put her neck on the block by signing the letter of 6 July 2018. She could, and should, have arranged the meeting on 5 July 2018 with board approval, such that it did not give the impression that it was arranged in secret, as part of a plan to remove the board. The terms of the letter of 6 July 2018 I have already commented upon. Her own failure to explain matters fully, when she had the opportunity at the disciplinary meeting, meant that the respondent had little mitigation to consider in any event. Despite the contention that was made by the claimant, this was not the only and last resort. If the intent was to seek a meeting, the method chosen was simply wrong. When the claimant became aware that she could not do what she had done, both from Ms Elias’ email and the call with Ms McKay, she took no step to change what she had done. That is very surprising if, as she now claims, the intent all along was only to secure a meeting with the board. That was not the message than conveyed, indeed the opposite message was given in the letter of appeal, which maintained that the claimant was entitled to send the letter. I have concluded that the claimant did act with a view to the removal of the board, as the terms of the letter of 6 July 2018 and attachments to it indicated. Even if that was not the motivation, the method chosen to achieve what was said to be the intent of a meeting was one so obviously liable to destroy trust and confidence that it was almost inevitably liable to lead to her dismissal. Whilst the letter of dismissal referred to there being no other option, I accepted the evidence of Mr Thomson and Rev Cranfield that that was because of the circumstances that were before them, rather than a decision that gross misconduct required to mean dismissal. I consider that they were at the least entitled to come to such a view, and that it was within the range of reasonable responses, in respect of allegation one alone. That was also the case if the letter of 4 July 2018 is disregarded for these purposes.[179]There were other allegations. The issue in relation to pension was one that had the potential to cause significant harm by the crystallisation of a debt, had that taken place. It did not. The respondent resolved matters with TPT. But there was a risk of their responding to the claimant’s direct contact with them by holding that that led to the respondent not having an employee in the scheme such that the debt did crystallise. The precise amount of that debt was not given in evidence, but I consider that it was unlikely to have been much different to the figure known in the previous year of £37.000. . It may not have led to the demise of the organisation had crystallisation occurred, but there was a risk of harm. Whilst I accept the point that the claimant would not seek to engineer the closure of an organisation where her mother was a service user, I do not accept the claimant’s explanation for her acts as being in relation to the management of her data, which defy common sense when the same data was retained and used for other purposes such as salary and pension payments in another scheme, and are in conflict with the instruction not to contact suppliers save with board approval, an instruction I consider one a reasonable employer could have made. The respondent was entitled to regard this as gross misconduct, at a level alone worthy of dismissal summarily.[180]I take no account of the third allegation, as the belief in it was not I consider held reasonably.[181]The fourth, relating to contravening the instruction not to contact staff whilst on suspension without board approval, was accepted to be less significant, and of its own I consider it of little importance. Technically the claimant ought not to have done it. She did ask them about her own suspension, and it went beyond merely a social interaction. She also did seek to contact staff herself, rather than react to their contacting her. But she was obviously upset by what had happened, and there was no evidence of any harm or difficulty caused, and in two respects, where her mother’s interests as a service user were involved, her doing so was with a proper reason. In all the circumstances no reasonable employer would have dismissed for that (indeed it was not suggested that that was the position). It ought I consider to be disregarded. (f) Appeal[182]I have found the issue of the appeal a particularly difficult one. There are arguments both ways. The claimant had a right to appeal. She instructed solicitors, as was her right. They wrote a letter of appeal. That is not unusual, and I do not consider that the respondent was entitled to disregard it, in effect, and require it to be rewritten and sent by the claimant herself, however short a time that may have taken. It appears to me to be a basic principle of the law of agency that the claimant, as principal, was entitled to instruct her solicitors as agent to write that letter. It was an effective method of conveying the appeal.[183]There is no direct case law on such a point, but letters from and to solicitors were considered in Bird v Sylvester [20018] IRLR 32 and Robinson v Fairhill Medical Practice UKEAT/03131/12. The facts and circumstances are different, but nothing was said that would question the statement of principle made above that a letter to or from a solicitor is an effective means of communicating.[184]On the other hand, the claimant did not respond well. She required the respondent to write to her solicitor. She was not entitled to make such a requirement – the respondent was entitled to decide to deal with her directly. She should have opened the letter sent to her. It would have been an easy matter to write out the grounds of appeal and send that.[185]There is I consider fault on both sides. I must consider that against the background of the case law on appeals referred to above. I have concluded that it was not open to the respondent to reject the appeal intimated by the letter from solicitors. Whilst they had been wary of opening up matters, there were ways to address that, including by corresponding only with the claimant. They controlled the appeal process, and were entitled to have conducted it without the claimant having her solicitor present. That is, of course, the norm. I also consider that in light of the terms of the policy Mr Thomson as one of the two decision makers ought not to have dealt with this matter, but to have passed it to another board member to do so. But that is a more minor matter than the decision not to accept the appeal itself.[186]On balance I consider that the refusal to act on the appeal letter did have the effect of preventing the claimant seeking to show that the decision was not one that was fair. I address the consequences, if any, of that procedural failure, below. I consider overall that the dismissal was unfair for the two reasons that firstly evidence was not disclosed to the claimant for her to comment upon and secondly she was not able to pursue the appeal she had intimated. Polkey[187]I then had to consider the effect of the findings above, under what is normally referred to as the Polkey principle, under reference to the case of that name cited above. The issue is would or might there have been a fair dismissal had there been a fair procedure? If so, the Tribunal is able to reflect the extent of that possibility by holding that the amount of loss is reduced. I consider firstly that the supplementary statements ought to have been disclosed to the claimant and that she have had a reasonable time to comment on them. She may well have sought to obtain evidence herself, including from Mrs Johnson. I consider that it would be reasonable to regard that process, including the adjourned disciplinary hearing, as taking one further week, and therefore to have delayed the dismissal by one week.[188]I consider that had there been such a different procedure, there would then have been a fair dismissal of the claimant. The decision would have been at best to remove allegation three, but there was sufficient in allegation one alone, and separately in allegation two, both of which were properly upheld, to have merited dismissal summarily.[189]I consider secondly that an appeal would not have succeeded, for the reasons set out above. An appeal may have removed the third and fourth allegations from consideration, if still extant, but as set out above the events around 6 July 2018 were very likely indeed, if not certain, to lead a reasonable employer to dismiss. In any event, what was alleged in the letter of appeal was that the claimant was entitled to write the letters that she did. For the letter of 6 July 2018 that is I consider an unstatable position to take. At its highest it could be argued that the claimant had used the wrong procedure, and the wrong wording, and that she had intended to say something entirely different, such that she apologised and retracted the remarks. That was not her position. Indeed when aware of the terms of the email from Ms Elias on the morning of 7 July 2018 she did not seek to retract the comments. She said in evidence, “there was no turning back”. She certainly did nothing to act on that letter. That was her position both then and in the appeal letter, and I consider that was fatal to her appeal being successful. In light of the claimant’s evidence as to the advice that she had received, and was following, not to add to her statements already made, I consider that the appeal would not have addressed matters in a manner that could have led to any outcome than the appeal being rejected. A reasonable employer could at the very least have decided to reject such an appeal, and I consider that that is what would almost certainly have occurred.[190]I conclude from the analysis above that the effect of the unfairness I have identified was only to have delayed the dismissal by a period of one week. There would then have been a fair dismissal. Subject to that one week period, the deduction for Polkey is 100%. The procedural unfairness did not, save for that one week, cause any loss for the purposes of section 123 of the Act. In light of that finding, the issue of mitigation does not arise. Contribution[191]I have found that there was a reduction for Polkey, but that does not apply to the basic award. On the issue of contribution under section 122(2) of the Act, I consider that the claimant has substantially contributed to her dismissal to the extent that she has been the sole cause of it. The letter she signed on 6 July 2018, delivering it, and not acting thereafter on the advice by two employees of Fife Council that she was not entitled to take such a step, together with the arrangements she was involved in for the meeting on 5 July 2018 and her later contacting TPT herself, were simply not the appropriate steps to take. There was no proper legal basis for purporting to call an EGM. The contribution in these circumstances I consider cannot be other than 100%. I have taken account of all the circumstances put forward by way of mitigation, including the failings of the respondent as identified in the report by Ms McAulay and in the evidence before me, but I do not consider that they are sufficient to reduce the level of contribution below 100% given all the circumstances.[192]I do not consider that contribution is a matter that applies for the one week period for the purposes of section 123(6) of the Act – the claimant did not contribute to the failure to give her the statements. She would, had there been further time taken, have been on suspension on pay until the dismissal one week later.
Remedy
[193]The basic award is calculated under section 119 of the Act. The claimant’s pay was agreed to be £443 per week. She was 62 years of age at the effective date of termination. She had six years’ service. The basic award would have been £3,987, but is reduced under section 122(2) by the contribution of 100% to nil.[194]The compensatory award is calculated under section 123 of the Act, and is “such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that is attributable to action taken by the employer.” The contributory award I assess at one week’s net pay, which using the figures from the Schedule of Loss at £1,601.55 per month equates to £369.59.[195]That produces a total award of £369.59.[196]I accept the claimant’s evidence that she did not receive benefits following the termination of her employment, and the recoupment provisions do not apply.
Conclusion
[197]The claimant was unfairly dismissed, but would have been fairly dismissed with a different procedure. She contributed to her dismissal to the extent of 100%. I award her the total sum of £369.59.[198]I would like to thank both solicitors for the professional and helpful way in which they conducted the case. Mrs Sneddon pursued every possible argument for the claimant, and whilst I have not accepted many of them, they were made as fully as possible.