Ms A Love v Paisley Indoor Bowling Club plc: 4102998/2020
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102998/2020Venue GlasgowHearing 9 December 2024, 1,2 and 3 April 2025 and 4 April 2025 (in Chambers)
Between
Ms A LoveClaimantPaisley Indoor Bowling Club PLCRespondent
Before
Employment Judge L MurphyMs S Mechan (instructed by Solicitor) for respondentDate 23 May 2025
JUDGMENT
The Judgment of the Tribunal is(i) The claimant was unfairly dismissed. The Tribunal makes no award of compensation.(ii) The claimant’s complaint of wrongful dismissal does not succeed and is dismissed;(iii) The claimant’s complaint of unauthorised deductions from wages in respect of accrued untaken holiday pay does not succeed and is dismissed;(iv) The claimant’s complaint of unauthorised deductions from wages in respect of alleged deductions referable to March 2020, having been E.T. Z4 (WR) withdrawn by the claimant during the hearing on 1 April 2025, is dismissed under Rule 51 of the Employment Tribunals Procedure Rules 2024.
REASONS
[1]A final hearing took place (in person) at the Glasgow Tribunal. The case had initially been listed for a 3-day hearing in the Glasgow Tribunal on 9 – 11 December 2024. When the claimant’s evidence in chief was part heard on 9 December 2024, the case was postponed. A further hearing diet took place on 1-3 April 2025. The case had previously proceeded against two respondents but as recorded in a judgment and Case Management Note on 9 December 2024, it ultimately proceeded only against the respondent named above (R). There was some refinement of the issues at the preliminaries discussion on 9 December 2024 and further refinement at the preliminaries on 1 April 2025. The extant issues for the Tribunal to decide following these refinements are listed in paragraph 5.[2]The claimant (C) gave evidence and led evidence from her daughter, Cheryl Breen and he partner, Joseph Wilson. R led evidence from Helen Dobson, Chairperson, Elaine Spence, Director, and Alex Shields, employee of R. Evidence in chief was taken orally from the witnesses. The Tribunal was referred to two sets of productions, prepared respectively by C and by R. Not all documents in each file were referred to in evidence.[3]In the course of the hearing, additional evidence was lodged. C lodged a document on 1 April headed Paisley Indoor Bowling Club Statement of General Conditions of Employment. This was admitted without objection. During the respondent’s case, C introduced a recording of a phone call between her and H Dobson on 18 February 2020 which was made covertly. There being no objection to the playing of the recording, the Tribunal heard it. No transcript was prepared by C. I listened to the recording and took brief notes. C cross examined HD on it. C was briefly re-called following the conclusion of HD’s evidence to allow Ms Mechan the opportunity to cross examine C in relation to the recording.[4]The following abbreviations are used in this judgment for witnesses and others referred to in the evidence and findings in fact. The claimant C The respondent R Helen Dobson, Chair of the HD Respondent at material times Alex Shields, Manager of R from AS March 2020 and October 2024 Elaine Spence, Director of R at ES material times Jean Cullen, Member of the JC Management Committee of the Club at the material times Michael McGoldrick, Member of the MM Management Committee of the Club at the material times (President)
Issues to be determined
[5]The issues to be decided by the Tribunal are as follows: Liabilitya. The respondent admits dismissing the claimant. However, the question of when the dismissal took effect is unclear. When was the effective date of termination for the purposes of section 97 of ERA?b. What was the reason or principal reason for C’s dismissal? R says the reason was conduct.c. If the reason was conduct, did R act reasonably in all the circumstances in treating that as a sufficient reason to dismiss C? The Tribunal will usually decide, in particular, whether: i. at the time the belief was formed, R had carried out a reasonable investigation; ii. R otherwise acted in a procedurally fair manner; iii. there were reasonable grounds for that belief; iv. dismissal was in the range of reasonable responses. Remedy a. If C was unfairly dismissed, should there be a compensatory award? How much should it be? The Tribunal will decide: i. What financial losses has the dismissal caused the claimant? ii. For what period of loss should C be compensated? iii. Is there a chance that C would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? iv. If so, should C’s compensation be reduced? By how much? v. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? vi. Did R or C unreasonably fail to comply with it? vii. If so, is it just and equitable to increase or decrease any award payable to C? By what proportion, up to 25%? viii. Did C cause or contribute to dismissal by blameworthy conduct? ix. If so, would it be just and equitable to reduce the C’s compensatory award? By what proportion? x. Does the statutory cap apply? b. What basic award is payable to C? c. Would it be just and equitable to reduce the basic award because of any conduct of C before the dismissal? If so, to what extent? Breach of Contract (wrongful dismissal) a. The parties agree the claimant’s notice period was 12 weeks. R accepts it did not serve 12 weeks’ notice nor pay C in lieu of 12 weeks’ notice. b. Was C guilty of gross misconduct at the time of dismissal / had she done something so serious that R was entitled to dismiss her without notice? Unauthorised deductions (holiday pay) a. Did R make an unauthorised deduction from C’s wages following the termination of her employment by failing to pay her in lieu of accrued untaken holiday and, if so, how much was deducted? b. The Tribunal will decide: i. What was C’s leave year? C says her annual leave year ran from 1 September to 31 August. R says the leave year ran from 1 January to 31 December. ii. When did C’s employment end? iii. How much of the leave year had passed when C’s employment had ended? iv. How much leave had accrued for the year by that date? v. How much paid leave had C taken in the leave year? vi. How many days remain unpaid? C says she was owed 11 days’ accrued untaken annual leave when her employment ended. R says she had no accrued untaken holiday on the termination of her employment. vii. If any days remain unpaid, what is the relevant daily rate of pay? Findings in fact
Remedy
[6]The following facts, and any further facts set out in the ‘Discussion and Decision’ section, are found to be proved on the balance of probabilities or have been agreed by the parties. The facts found are those relevant and necessary to my determination of the issues. They are not intended to be a full chronology of events. Background / written employment documentation[7]R is a public limited company limited by shares registered under Company Number SC048205. At the time when C’s employment terminated, she was the only employee of R. R is governed by a board of directors. The Chairman of the Board at the material time was Helen Dobson. Her tenure as Chair began in March 2019. In late 2019 / early 2020, other directors of R included Elaine Spence, Jim Shedden, Morag Campbell, Martin Logan, Danny McAllister and Eddie Hodgart. C herself was also a director of R from 1 January 2017 until 18 March 2020. R did not have access to any internal HR department or advisor. The principal activity of R is the provision of facilities for and assisting in the management of Paisley Indoor Bowling Club (the Club).[8]The Club is an unincorporated association. Unlike R, the Club is not a legal person in its own right. When referring to the Club in this judgment, it is not suggested it is a single legal entity. ‘The Club’ is a convenient shorthand for the unincorporated association of individual members who are liable for the debts of the club which is managed by a management committee run by the Club President. C was originally employed by the Club from 1 September 1999 until 31 December 2016. On 1 January 2017, she transferred to the employment of R. R recognised her service with the Club when calculating her continuous service for continuity purposes. Though C was employed by R, in late 2019 / early 2020 other individuals alongside whom she worked were employed instead by the Club, namely James Corrigan, Mary Robertson (also known as Moira Robertson), Joseph Wilson and a bar person.[9]The management committee of the Club is separate and distinct from the Board of Directors of R. There may or may not have been overlap in the individuals holding office as a director of R and sitting as members of the committee of the Club. Two individuals who were members of the management committee of the Club at material times but who were not directors of R were MM and JC.[10]When C was first employed by the Club in September 1999, she was issued with a document headed “Paisley Indoor Bowling Club – Statement of General Conditions of Employment” (herein referred to as the ‘Club Employment Terms’). In so far as relevant, the Club Employment Terms included the following clauses: “Holidays You're entitled to take holidays in the holiday year, which runs from first January to 31st December each year. … You're entitled to four weeks holiday, to be taken in the last two weeks in July and the first two weeks in August when the club closes. Holidays requested to be taken out with this will be treated as unpaid leave of absence, and subject to authorisation by your manager with no guarantee they can be allowed if club activities do not permit. The four-week entitlement does not include statutory or local holidays, of which 8 further days are recognised by the club and will be published prior to the start of each holiday year. Christmas, Boxing and New Years days and 2nd January will always be taken, as the Club will be closed. Working on any statutory holiday will be paid for the hours actually worked at your normal hourly pay rate above. On joining the club, your entitlement in the first year will be proportional to the number of working weeks remaining in the holiday year, rounded up to the nearest day as shown in the table below. ... On leaving the Club, your entitlement to accrued holiday pay in lieu will be proportional to the number of completed weeks worked in the holiday year to the date of leaving, less any holidays already taken. See table below. Recovery will be made of the cost of holidays paid in excess of the table below. Leaving month – April …0 /12 x 20 days = 0 days x hourly rate x weekly hours / no of days worked in week May … 1/12 x 20 days … [etc] … Dec … 8/12 x 20 days … Jan … Feb …10/12 x 20 days .. Mar - 11/12 x 20 days = 19 days x hourly rate x weekly hours / no of days worked in week … Disciplinary Procedure … A copy is attached as Appendix 1... and forms a substantive part of the contract of employment between you and the Club. Appeals Procedure 1. You have the right to appeal against any action taken under the disciplinary procedure and may be accompanied by a work colleague, should you wish 2. If you do not wish to appeal, then you should advise your manager in writing. … 4. You will be invited to a meeting with the appeals subcommittee to discuss the appeal and must take all reasonable steps to attend, with the Club undertaking to provide reasonable timing and location... Data Protection Act 1998 and Duty of Confidentiality Except with the prior written consent of the Club, you shall not during your employment nor at any time after its termination for whatever reason disclose or use for your own benefits or that of third parties, and shall use your best endeavours to prevent publication, or disclosure to, or use by any person, firm or Club, of any Club, secret or confidential information, knowledge or data which may come to your knowledge during your employment with the Club and which relates to the Club, finances, affairs or clients of the Club. On termination of your employment or at any other time that the Club requests, you shall deliver to it all documents, data and files (including but not exclusively, correspondence, customer lists, accounts, notes, memoranda and other documents of any nature) which are made, compiled by or received by you during your employment and which relate to the Club, finances or affairs of the Club. No copies of any document or computer or data files may be taken. Property in all such documents and data shall be vested in the Club. … Appendix 1 – Disciplinary Procedure 1. No disciplinary action will be taken against an employee until the case has been fully investigated and will not be pre judged in advance of a disciplinary hearing. 2. At every stage the employee will be advised of the nature of the complaint in writing and be given the opportunity to state their case before any decision is made. In particular, the alleged misconduct... which led to the contemplation of dismissal or the taking of disciplinary action against the employee will be set out in writing. This will take the form of a statement of grounds for action and an invitation to an investigatory meeting. 3. In all cases the employee will be initially invited to an investigatory meeting... the decision whether or not to proceed to a disciplinary meeting will subsequently be communicated in writing. 4. If the decision is to hold a disciplinary meeting the employee will be invited to a meeting with their manager and must take all reasonable steps to attend, with the Club undertaking to provide reasonable timing and location. 5. After the meeting the employee will be informed of the decision taken within a reasonable period, normally no longer than one week. They will also be advised of their right of appeal against the decision if they are not satisfied with it. If so, the employees should then instigate an appeal under the appeals procedure above or not, as they decide. 6. At all stages the employee has the right to be accompanied by a work colleague. 7. No employee will be dismissed for the first breach of discipline except in the case of gross misconduct when the penalty will be summary dismissal without notice. ... 2. Procedure … Stage 4 – Dismissal If conduct... is still unsatisfactory and the employee fails to reach the prescribed standards, DISMISSAL will normally result. Only your manager can take the decision to dismiss. Investigatory and disciplinary interviews will precede this decision and will be given in writing with full reasons, the date of termination and offer the right of appeal. Gross Misconduct The following list provides examples of offences that are normally regarded as gross misconduct. It is illustrative but not exhaustive. Theft, fraud, deliberate falsification of records ... Refusal to carry out a reasonable management instruction Unauthorised entry to computer records or other files Use of unauthorised computer discs Removal of files, computer discs or any other confidential information.”[11]Although C was no longer employed by the Club from and after 1 January 2017, both C and R continued to operate their arrangements in a manner that implied they believed they continued to be bound by the Club Employment Terms, insofar as they remained relevant and were not superseded by changes to the Club’s practices and / or by the issue by R of a new set of terms and conditions for C.[12]There were some changes to the Club’s practices after C received the Club Employment Terms. At some stage, the Club stopped closing completely in late July / early August though it was quieter out of season. In 2019 C was not on leave for the last two weeks in July and the first two weeks in August. She attended work in order to oversee significant repair work being carried out in this period. At some stage, the Club ceased to close on all of the public holidays listed in the Club Employment Terms. It sometimes opened on some of the 8 days referred to. Before 2017, a practice had developed whereby C and other employees were paid in December in lieu of public holidays they had worked between January and December of the year in question. When C was appointed Club Manager on 1 January 2017, she continued this practice and continued to pay herself in lieu of any public holidays she worked throughout the calendar year in December of each year.[13]Shortly before C’s employment transferred to R, R issued a new document headed ‘Paisley Indoor Bowling Club PLC … Statement of Main Terms and Conditions of Employment’ (the ‘PLC Employment Terms’). C was provided with and signed a copy of the PLC Employment Terms around December 2016 to take effect from 1 January 2017. In so far as relevant, the PLC Employment Terms included the following clauses: “Job Title/Reporting Your job title is Club Manager, Secretary and Treasurer, reporting to your manager, the Chairman of the Board of Directors of the PLC Board or his or her nominated deputy. Your duties involve managing and working as a member of a flexible, interchangeable team to provide the PLC Board with company secretarial and accounting services and the PLC board and the Club with member and guest services, organisation of events and Club Secretary services, stadium upkeep and management of all employees. Your role also includes acting as Treasurer to both PLC Board and Club. These duties are illustrative but not exhaustive, of the Club, but your contract of employment is with the PLC board, who have the final decision on all matters relating to your employment. … Pay Your remuneration is at the following rates; -£21,500 per annum. It is currently paid monthly in arrears on the last Friday of each calendar month. The current payment method is by cash. Should the Club wish to change the frequency or method of payment you agree to this in principal [sic], subject to mutually acceptable transition arrangements. Your salary will be reviewed each January, but with a guarantee of 3% rise Any change will be subject to the financial capability of the PLC as well as your own performance. Hours of Work Winter Season 1st September to 30th April The exact start and finish dates of the winter season will vary by a few days each year. The normal working week is as and when required, up to 42 hours. Your normal days of work are, Tuesday, Wednesday, Thursday, Friday, Saturday normally 9 hours per day during the week and six hours on a Saturday. These days and hours may be varied according to the needs of the Club and you agree to changes to them by your manager, subject solely to reasonable notice and the requirements for flexible working. Your current working hours on Tuesday, Wednesday, Thursday, Friday, Saturday are normally 8.00am to 5:00 PM with up to 30 minutes as paid breaks.... Summer Season - 1st May to 31st August The exact start and finish dates of the summer season will vary by a few days each year. The normal working week is as and when required, but with your normal monthly pay as a guaranteed payment. Your normal days and times of work may vary according to the needs of the Club and you agree to changes to them by your manager subject solely to reasonable notice and the requirements of flexible working. Your current working days are Monday to Friday. Overtime There will be from time to time a need for working additional overtime hours. Reasonable notice will be given... Working any authorised additional hours above your normal working hours in any Monday to Sunday week entitles you to payment at your normal early rate. This applies to both winter and summer seasons. Payment will be made in arrears in the month in the first month or on occasion the second month following it being worked. … Notice Notice periods on either side as follows; - 1 week for up to three months service, thereafter 1 week for each completed year of service to a maximum of 12 weeks. The Club reserves the rights to pay salary in lieu of notice or to insist on notice being worked, according to the circumstances. … Grievance Procedure 1. You should raise any grievance with your manager within a reasonable period. 2. Employees should let the employer / manager know the nature of the grievance. 3. The employer / manager should try and resolve the matter informally in the first instance. 4. Where this is not possible employers should arrange a formal meeting as quickly as possible and should try and carry out an investigation to establish the facts of the case. 5. Employees can be accompanied at any formal meeting and have the right to appeal against any formal decision.”[14]On 24 June 2017, C was awarded a pay rise to £22,500 in a document signed off by two directors of R. Thereafter, neither the Board nor any individual director approved or authorised any further pay rise for C before her employment ended in March 2020 (apart from C herself, as set out below).[15]C’s role as Manager and Treasurer included financial responsibilities and duties. Among other things, she had cash handling responsibilities. Members, as well as paying an annual membership fee, also paid a cash fee every time they played of £3 or £4 (‘rink fees’). This money was collected at reception and, before banking, stored in a safe on site to which C had a key. C also had access to bank accounts of the Club and/or of R. She was an authorised signatory on the accounts. R under HD Chairmanship: Period from March to December 2019[16]HD took over as Chair of R’s board from around March 2019. She developed concerns about C. C worked erratic hours, sometimes working until late, often around midnight. However, C was also frequently not on site at points when HD visited the Club during normal business hours. HD usually visited to play bowls three or four times per week between 12.30 and 2.30 pm and frequently C was not there during her visit. HD was concerned it was difficult to monitor whether C was fulfilling her contracted working hours. She raised with C concerns about her late night working which also worried HD from a security perspective. HD also attempted to take a more hands on approach to overseeing the finances of the Club and of R. She sought access to the bank accounts to get better visibility of the day-to-day cash assets of the Club and R. She found C was resistant to facilitating this level of involvement for her.[17]The relationship between C and HD deteriorated sharply. C perceived HD’s attempts to monitor her working practices and the Club’s finances more closely as micro-management and undue criticism. C made some complaints about HD’s interactions with her.[18]From April to June 2019, C claimed 12 hours per month in overtime. Her basic monthly gross wage was £1,975. The overtime claimed was 12 x £10.30 = £123.60 per month in addition to C’s basic monthly wage. C did not provide HD with records of this overtime or approach HD for her approval. Instead, C informed R’s Accountants, Milne Craig, of the overtime and the accountants’ payroll reflected the overtime in the pay slips prepared for C. Milne Craig was not responsible for processing payment of wages to C or other employees. Instead, C paid the wages to others and to herself. Notwithstanding that her contract provided that she would be paid in cash, C paid her own wages by bank transfers.[19]C did not have a bank account in her own name. She made transfers from the Club’s bank account to the accounts of her daughter, C Breen, and of her partner, J Wilson. She did not make the payments to these accounts at monthly intervals in the amounts shown as her net pay on her monthly wage slip. She did not make these payments on the last Friday of each calendar month as her contract and the pay slips contemplated. Instead, she paid random and varying amounts at different times throughout the month. C Breen was not an employee of the Club or of R so that all transfers to C Breen’s account related to C’s wages. However, JW was himself an employee of the Club who was also paid his own wages weekly by BACS. Therefore, some payments to JW related to JW’s wages while other payments to his account related to C’s wages.[20]In around June or July 2019, as the quieter summer season approached, C contacted Milne Craig and instructed an increase in her basic monthly wage from £1,875 per month to £1,998 per month. This change was made without consultation, authorisation or approval by HD or by any other directors on R’s board. C ceased from this date to claim the regular 12 hours’ overtime she had been receiving in the months before. The increase in her basic salary was equivalent to the £123 which had previously been recorded as overtime on her monthly wage slips.[21]In December 2019, C paid herself in lieu of 8 days’ public holiday for the calendar year January to December 2019. C had not, however, worked on Christmas day 2019 as the Club was closed on that date. C separately received her full salary for December 2019 (so she was paid twice for 25 December 2019). Events between 1 January and 17 February 2020[22]On 15 January 2020, the Club’s insurers wrote to C at the Club’s address. The letter concerned the renewal of the Club’s insurance which had been due on 30 November 2019. The letter said, ‘my reason for contacting you today is simply a catch up to ensure all is ok with our proposed renewal terms as per our invitation dated 23rd October 2019. Upon receipt of the Club’s remittance we will be in a position to forward to you the confirmation of renewal schedule paperwork for safekeeping /display.’ HD and the board of R were unaware at the time of this correspondence or of the up-to-date status with respect to the Club’s insurance.[23]On 16 January 2020, C used the work computer and the Club’s email address to book a holiday to Spain in the name of JW from 11 to 18 February 2020 for herself and JW. At the time when C made the booking, she had not notified HD of her proposed annual leave dates, nor sought approval of the dates. HD was not aware of the booking. Joining C and JW on the holiday were C’s daughter, C Breen, as well as JC, a member of the management committee of the Club, with whom C was friendly, and JC’s husband. Therefore, some regular attenders of the Club were aware of the forthcoming holiday plans though HD was not.[24]R’s board met monthly for routine board meetings. On 16 January 2020, R held such a board meeting. C was not in attendance at the meeting. Adequate steps had been taken by the Chairman to ensure C was aware of the meeting in advance. The meeting was held on site at the Club. Though it was held during normal business hours, C was not in attendance at the Club, so could not readily be fetched to attend the meeting. C had not informed HD that she would not be working her normal hours on that date, a normal working day for C (a Thursday). HD recorded in the minute that in C’s absence, the board had no financial accounts (for the month gone by of January) to discuss during the meeting and that ‘it was felt it was not acceptable’. It was noted that the previous full year’s accounts were with the accountants and that the board should have sight of them soon.[25]HD recorded in the minute that she ‘still did not have the keys to get into the stadium or the passwords to get into the computer’. In fact, HD did hold certain keys. She did not have all the keys for the Club building, but she did have a key to access the office, as did other members of staff including C. HD recorded in the minute that ‘Helen was again asked to write to [C] ..expressing [the board’s] disappointment about not having up to date accounts and keys and passwords. It was also felt we should speak to Agnes about her hours of work again.’ HD took the minutes of the meeting in longhand. When later typing up the minute she erroneously included historic content. This was a word processing error and related to arrangements for a Christmas lunch the previous month. Otherwise, the minute accurately reflected the discussion at the January board meeting.[26]Despite what was discussed at the meeting on 16 January, HD did not at that time write to C regarding accounts, keys or passwords following the meeting. Nor did she speak to C about her hours of work following the meeting. C received a copy of the minute. The minute recorded that the date of the next meeting was 13 February 2020.[27]In 2020 before her employment ended, C took 6 days’ holiday as follows: 5, 11, 12, 13, 14 and 18 February 2020.[28]In relation to the 5 February holiday, C wrote to HD on Wednesday 5th February to say she was taking that day as a holiday having been in hospital until the early hours of the morning. She asserted in the letter that she still had holidays due from the previous year because (she said) she had worked several days and nights a week the previous July and August. C said, “I feel that due to the fact that there are concerns by the board of directors regarding the amount of hours I have been working that I have no other option.” She did not take the opportunity to notify HD of her scheduled trip to Spain from 11 to 18 February which was becoming imminent and would necessitate taking further annual leave.[29]She did so two days’ later on Friday 7 February. On that date, C gave HD a letter informing her that she wished to take off 11, 12, 13, 14 and 18 February. In that letter, she asserted that she had 8 unused holiday days one of which she had taken on 5 February. In her letter she also said, ‘I would be grateful if you would try and rearrange the board meeting for the week I come back if possible. I hope we can resolve the ongoing issues we have going on at the moment and hopefully get back to having the good working relationship that we previously had.’[30]The letter and annual leave request was intimated to HD in the afternoon of C’s last working day before the proposed leave around 2 hours before she was due to finish work. HD agreed to the request because she felt she had little choice in the circumstances. She felt uncomfortable that she lacked a grasp of how much holiday C had accrued or taken, not having seen annual leave records. HD chose not to re-arrange the scheduled February board meeting which went ahead on 13 February board meeting.[31]Before finishing up, C provided HD with passwords for the computers. She wrote them down at HD’s request. HD did not ask for, and C did not provide, a key for the door to the office. HD already had her own key to the office. HD did not ask C before her holidays for other keys to open drawers or cabinets. C did not withhold these at that time.[32]At some point while C was away, between 8 and 12 February 2020, HD tried to use her key to enter the office. Her key broke in the lock and she was unable to gain access. She or one of the other board members arranged for someone, either an external professional locksmith, or a friend of a board member with expertise in fitting locks, to change the locks to the office so that HD could access the office.[33]On 13 February 2020, R’s scheduled board meeting went ahead in C’s absence. HD recorded that “We were still not getting anywhere with Agnes about the accounts. She absolutely would not give us passwords and would not let us into the accounts.’ She recorded that they had decided that they would probably need to proceed to disciplinary action and that HD was to seek some advice from ACAS. HD had been provided with passwords for the computers but did not have passwords for the bank accounts of R/the Club. HD was a signatory on the bank accounts but was not set up for online banking. She had not considered the possibility of attending at the bank to make enquiries.[34]On or about 13 February, R’s accountant phoned HD to advise he could not complete the accounts because he didn’t have all the Sage information he needed. He soon after attended at the Club premises. He asked to go into the office to find what he needed. HD, along with other board members, accompanied him into the office. They tried to access the two computers using the passwords C had provided. Though multiple attempts were made by various individuals, none could successfully unlock the computers using the passwords provided. C had provided incorrect passwords to HD for accessing the computers. They looked for paper records but found they couldn’t access the drawers and cabinets as these were all locked. They made a thorough search of the office. No keys were to be found for these on C’s desk. HD and other directors of R arranged to break into the desks and cabinets to look for documentation which might assist the accountant. They didn’t find anything of assistance inside. They changed the locks on the drawers and cabinets.[35]On 17 February 2020, HD wrote a letter to C inviting her to an informal meeting to be attended by HD, ES and MM. HD said in her letter: “We have found it necessary to change the lock on the office door and also the locks to the cabinets and drawers in the office. This is because they were locked while you were on holiday and we could not give people any answers to queries which …made things very difficult for us. We would like to discuss with you as to why you did not leave a cheque book with me or a key to get into the cabinets etc in the office. The passwords you gave me to get into the computers were also wrong. Other concerns were raised and we would like to discuss them with you.” Events between 18 February and 18 March 2020[36]On 18 February, in anticipation of meeting with C, HD prepared a list of issues as an aide memoir. The document ran to 5 pages. Some parts listed concerns about C’s conduct or practices and others were script notes for HD to read out. The matters listed included the following:a. Payment of the insurance;b. The provision of incorrect passwords for the computer;c. Whether C was working her full contracted hours;d. The level of funds in the bank account as reported to HD by the accountant;e. The failure to provide the board with financial reports from September 2019;f. The fact that C became defensive and aggressive when the Board asked to see the accounts and when C’s hours of work were queried.[37]On the evening of 18 February, following her return from holiday, C attended the Club premises and try to access the office. When she found her key did not work, she called HD. HD explained in the call that her key had broken and C suggested it was a fire hazard that the office was locked and C couldn’t get in. HD told C where to find the office door key and the safe key which she had left hidden. HD asked that when C came into work the next morning, she pay the insurance which had been due on 30 November. C told her the insurers were sending her a quote and said she’d already told the accountants this when they had questioned it. C covertly recorded this conversation.[38]C received HD’s invite to the meeting on 19 February on the evening of 18 February as HD had left it in the office for her. The meeting took place, as planned, the following day between C, HD, MM and ES. JC attended to support C. HD began by raising a gain the question of the insurance for the Club building. She insisted that this must be paid that day. C became angry. She said again that she was waiting for a quotation. C ran from the meeting in the boardroom to go to the office and returned with a copy of an email from the insurer / broker which she showed HD. HD expressed doubts that this would suffice in the event the building went up in flames. Both C and HD were shouting. HD went on to raise the matter of an invoice from the Club’s brewery supplier. She had, in C’s absence, received a reminder for a large bill to be paid which appeared to be overdue.[39]C became more upset and angrier. She said HD did not know what she was talking about. JC tried to calm C down. MM left the meeting, saying there was too much shouting or words to that effect. C then said words along the lines: “I’ve had enough of this. I won’t be in in the morning. In fact, I won’t be back at all.” She went on to say words like “I’ll close the Club down and sue for a lot of money”. She stormed out but then returned and spoke, more calmly, with ES for a few minutes.[40]During the meeting C handed HD a letter she had typed up beforehand. In the letter, she asked for a meeting to discuss issues she said she had raised previously. She said she felt she had no option but to put in a formal grievance. Though her letter did not set out the concerns, essentially these were what she perceived to be a poor relationship between her and HD and what she saw as undue criticism/micromanagement by the latter.[41]On 20 February, HD sent a letter by recorded delivery to C purporting to accept C’s resignation and asking for this in writing. The letter said: “Please let me know if you wish to leave immediately or if you want to work one month's notice. Your salary will be paid accordingly. The computer, its contents and passwords are all the property of PIBC and we require to have them. Also, please let us know where the bank statements are and leave out any cheque books, bank cards and pay-in books. We also ask that you leave all keys to the building and the office.” However, C was not home when the postman tried to deliver it and she did not pick it up from the depot. C did not receive the letter until Tuesday, 25 February 2020.[42]Between 18 and 25 February 2020, C continued to attend work as normal. She did not return her keys or the computers. R made no arrangements to recover these from her. R made no attempt to stop her attending work or exclude her from the premises. R made no attempt to secure a replacement to enable the Club to remain open and operational in this period. Members of the Board of Directors of R had knowledge that C continued in this period to attend the stadium and perform her duties in the way she had before the meeting on 19 February. Among those so aware was HD.[43]On 24 February 2020, C wrote a cheque numbered 001495 in favour of herself for £1,500 from the Club bank account. She cashed the cheque on 25 February 2020. J Corrigan was ostensibly the second signatory on the cheque. However, the signature was not his. C received the cash from the bank. She entered no record in the Club’s accounting system to show that this money was received into the Club Cash Control account, as would be the correct practice. C did not account for the ultimate destination of this sum in R’s records or accounts.[44]On 25 February 2020, HD and Martin Logan walked into the office and handed C a copy of HD’s letter dated 20 February. They engaged in no conversation with C. They did not ask her to leave. R’s board was not, at the time, aware of the cheque numbered 001495.[45]On 26 February 2020, C responded to HD’s letter dated 20 February which she had received the day before. Her letter included the following text: “I am officially stating that I never resigned from my job and that I am still employed as normal. At the meeting I asked the for [sic] meeting to be brought to an end which was my right to do as an employee as I was becoming upset and distressed and was ready to breakdown in tears...”[46]C asked the Stadium Officer to give the letter to HD when she came in to bowl on 26 February and HD duly received the letter.[47]On 27 February 2020, HD wrote to C, acknowledging her letter and advising she would bring this to the board’s attention as soon as they could arrange a meeting. The same day, HD called ACAS to take some advice. During the discussion, there was talk of C working out the rest of her notice. The ACAS advisor had not been told or had not fully understood that C had never intimated resignation with a notice period. The ACAS advisor also suggested R may wish to get legal advice from a solicitor. R did not do so. A board meeting was convened for 2 March 2020. In the meantime, with the knowledge of the board, C continued to attend her employment, and no steps were taken to stop her from doing so or to exclude her from accessing the building, the office, the computers or the bank accounts.[48]In the morning of 2 March 2020, C attended her GP about stress symptoms and raised blood pressure. Her GP provided her with a fit note, signing her off until 30 March 2020. The doctor ticked the box on the fit note to say C may be fit for work taking account of the following advice “Stress at work also affecting blood pressure. Could issues at work please be addressed by management.” Though she held the fit note, C decided to attend work. She did not contact HD or anyone else to inform her that she was not fit for work. She did not provide the fit note to HD or any other board member on arrival at work, nor advise them of any health problem.[49]The same day, the board meeting took place. HD took minutes and, so far as relevant, these included the following text: “Helen brought up the situation about Agnes. She had given us a few hours notice of the fact that she was going on holiday... We spoke of the fact that she did not take orders easily and did not feel that the board needed to know about the financial affairs of the Club. If Helen raised a subject with her, she immediately got defensive and got angry and confrontational. We felt we were not getting anything done with regard to the running of the PLC because of this. She had changed her mind about wanting to resign but ACAS said she could not do that unless she met with us and we agreed to take her back. She has not asked for a meeting to discuss things. The Board decided to confirm her resignation...”[50]HD and Martin Logan approached C in the office the following day (3 March) and handed her a letter dated 2 March which HD had prepared after the board meeting. It included the following text (sic): “After discussion, the board of directors decided to proceed with your resignation. At the meeting on 19 February, 2020, you made it quite clear that you were leaving. We have witnesses, and are proceeding on that basis. Your last day of work at Paisley indoor Bowling Club will be on Wednesday 18th March... We should be grateful if you would leave behind your keys to the building, your office door key and the keys to any cabinets or drawers in the office.”[51]On receiving the letter, C shouted to HD that she felt ill and that she didn’t think she was able to work. HD said ‘get some cover then’ and walked out of the stadium. When HD was outside in the carpark, C asked JW to go out and hand to HD the sick line which she had procured that morning. JW did so. C’s intention in providing the sick line to HD was not that she intended to be off sick but that she wished her workplace situation to be addressed. However, neither C nor JW conveyed this intention when JW gave her the fit note.[52]C left the office and walked up to the bar where Martin Logan was sitting. She told him she needed to go home because she wasn’t well and closed up the bar, noisily pulling down the shutters. She left abruptly, without cover to allow the bar to say open. She took with her: R’s red laptop computer, the key to R’s cash safe, keys to R’s cabinets, R’s cheque books, bar keys, keys to the stadium as well as correspondence, invoices and other records belonging to R.[53]Later on 3 March, JC telephoned C and told her she wasn’t to return to the stadium. C asked why and JC told her: “They’re putting you on garden leave”. C asked why she was sacked and JC told her that she had caused a serious disruption with reference to events during her absence on holiday. JC also told C that she was on a rampage with reference to events earlier that day (on 3 March) when C had shut down the bar and left.[54]On 3 March, C processed an online bank payment from the account of R or the Club to JW of £95, which she allocated the reference “AL salary”. She did so without seeking any authorisation or approval from HD.[55]On 4 March, C processed a further online bank payment from R or the Club to JW of £750, which she allocated the reference “AL salary”. Again, she did so without seeking any authorisation or approval from HD.[56]C did not complete any records for provision to R regarding the payments.[57]C did not return to work. On 5 March 2020, she wrote to HD and the board of directors. The text of her letter included the following: “I am writing this letter to request a letter from yourselves explaining why I was told not to return to the club on Wednesday 4th March 2020. I would also like my current employment status in writing. In my contract it states that my notice period is one week for each full year worked, up to a maximum of 12 weeks, therefore my notice period would be 12 weeks. Not 1 month. I'm also entitled to 28 days holiday pay....”[58]On or about 5 March, JC and MM attended at C’s home at the request of HD to uplift property from C belonging to R / the Club. C gave them the letter she had prepared for HD to pass to them. JC and MM told C they wished to collect the stuff belonging to the Club. C told them to tell HD that she wanted to know her employment status before she handed anything back. JC and MM passed this message on to HD who consulted with the Board regarding the matter.[59]HD wrote a letter to C dated 6 March 2020 which JW passed on to C the same day. The letter included the following text: “I am aware... from Michael McGoldrick and Jean Cullen, that you wish a letter stating why you're not allowed back into the Club. You caused a serious disruption on Tuesday, 3rd March, 2020, which was witnessed by many people. You also closed down the bar and made it very difficult to get into the office area in order to run the Club for the rest of the members. We do not think it prudent for you to return as we do not want a repeat of this behaviour. You are still employed by PIBC until 18th March and will be paid till then. I hope that, on receiving this letter, you, as promised, will return our property to Michael McGoldrick.”[60]On 6 March, C processed another online bank payment to JW from the account of R/the Club. The sum this time was £600. C did so without seeking authorisation or approval from HD. She did not complete records with respect to the transaction.[61]C did not take steps to return the property of R/the Club following HD providing JW with the letter dated 6 March 2020. On 8 March 2020, HD wrote a further letter to C on behalf of R. Again, this letter was provided to C via JW who remained employed by the Club. The letter included the following text: “I called in at Paisley Police Station... this afternoon and they have advised that the Board contact you one last time in order to get the property listed below returned to them. One red laptop... with passwords One safe key... Keys to all interior doors All utility and other bills in correspondence Any other papers you have taken from the office. if we do not get the above returned by Tuesday 10th March at 4:00 PM I will go back to the Police and they will then proceed to charge you with theft.”[62]On receipt of the letter, C contacted JC to make arrangements for JC to uplift some items. This was arranged for 10 March 2020.[63]Meantime, on 9 March 2020, C wrote a further letter to HD, purportedly in response to HD’s letter of 6 March. C thanked HD for her explanation of why she should not return to work and said “This means that my contract was terminated on Tuesday 3 March ’20”. She alleged R had intimidated and harassed her by going to the police. She asserted R had ended her contract and that she was no longer employed and asked for her wages to be paid. She asserted these were due on 4 March and that she was owed 12 weeks in lieu of notice and 28 days’ holiday pay, which she said totalled £7540.69. She made no mention of the online payments she had processed to JW with the reference ‘AL Salary’. JW delivered this letter to HD on C’s behalf on 9 March 2020.[64]On 10 March 2020, C arranged for the return of the red laptop, the safe key, cabinet keys, cheque books, and bar keys. HD signed a receipt for these items. C did not, however, return all of R’s property. She retained files and records belonging to R/the Club which she had accessed in the course of her employment. These included at least one confidential document, namely the contract of employment of J Corrigan.[65]On 11 March, the Board of R agreed to engage an interim manager, A Shields.[66]On 12 March, C processed a further online bank payment to JW of £500, which she allocated the reference “AL Part 1 Final Salary”. She did so without seeking any authorisation or approval from HD. She did not write to HD to modify the figures set out in her request for wages in her letter dated 9 March.[67]On 15 March 2020, HD wrote to C requesting the daily sheets that record the rink fees for 2019 to allow the accountants to finalise the PIBC accounts for 2019. HD also asked C to return outstanding chequebooks she still held for the Club’s account. C did not respond. Events post termination of C’s employment[68]On 27 March 2020, AS wrote to C, enclosing her P45, final payslip and his calculation of her statutory holiday entitlement for 2020. He recorded the bank transfer payments he had identified from bank records that C had made to JW on 3, 4 and 12 March with reference ‘AL Salary’ or similar. He said he had not yet been able to ascertain if any cheque payments had been made. His letter included the following text: “The last electronic payment was made following a request for you not to return to the club. Having previously been requested to return all club property I am left with no alternative but to review and reconcile all payments of salary paid to yourself.”[69]On 28 April 2020, AS wrote to C again. He enclosed a spreadsheet of his reconciliation of payments made from R’s bank account to C’s designated payee bank accounts covering C’s 2020 salary payments. These payments made variously to C Breen and JW’s accounts totalled £4,029.57. AS enclosed with his letter a cheque for £87.55 to cover the remainder of C’s final salary. His letter included the following: “As a full time, member of staff your holiday year ran 1st January - 31st December, this is stated in the Conditions of Employment. In December 2018 and December 2019, you paid yourself 8 days and 8.5 days holiday pay. These would be the excess statutory days of the European holiday entitlement and therefore based on custom and practice you acknowledge your holiday year ran January to December. The value of the cheque is based solely on information from our bank accounts. We reserve the right to recover any overpayments identified from other sources in the future.”[70]On 7 May 2020, AS, when reviewing C’s accounting records, identified that cheque number 1495 had been drawn on the Club bank account and he was unclear who the payee was based on the records available. He called the bank and was advised the payee was C. The bank was prompted by his call to check the signatures of the cheque and advised that JC’s signature appeared suspect. AS emailed a copy of the cheque to JC and asked him if this was his signature. JC said it was not. AS contacted the bank and the police to report this. The bank arranged a refund of the £1,500 that afternoon with the reference ‘Fraud Refund’. The matter was reported by R to the police and criminal proceedings were brought against C in connection with the £1,500 withdrawal on 25 February 2020. The case went to trial in or around February 2024 and C was acquitted.[71]From 18 March 2020, C has not sought alternative employment. She has, in her words, been ‘registered sick’ and has been in receipt of benefits including Universal Credit and Personal Independence Payment. She has been unfit to undertake or look for employment. She believed she had little chance of getting a job with criminal proceedings hanging over her and the stress of that situation contributed to her poor health.
Relevant Law
[72]To succeed in a complaint of unfair dismissal, an employee must have been dismissed within the meaning of section 95 of ERA, which provides as follows: “95(1) For the purposes of this Part an employee is dismissed if (and subject to subsection (2) only if) –(a) The contract under which he is employed is terminated by the employer (whether with or without notice),(b) He is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or(c) The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[73]Where the fact of dismissal is disputed, it is for the employee to satisfy the Tribunal on this point, on the balance of probabilities. A dismissal will not be effective until the employee actually knows he is being dismissed (Gisda Cyf v Barratt [2010] IRLR 1073, SC). A notice of dismissal (or resignation) must specify an ascertainable date from which the dismissal (or resignation) is to take effect (e.g. International Computers Ltd v Kennedy [1981] IRLR 28). Subject to certain exceptions where resignation or dismissal is intimated in the ‘heat of the moment’, once notice of termination has been given, it cannot be unilaterally withdrawn (Riordan v War Office [1959] 3 All ER 552).[74]As mentioned, in certain ‘heat of the moment’ cases, it has been found that there were ‘special circumstances’ such that an unambiguous, clear resignation should not be relied upon by an employer as having that effect. In this limited category of case, a real question can arise as to whether the employee intended to mean the words uttered (Sothern v Franks Charlesly & Co [1981] IRLR 278). However, such cases are limited to highly exceptional circumstances (Greater Glasgow Health Board v MacKay [1989] SLT 729, Ct of Sess).[75]Notice of termination of employment by either party should be clear and unambiguous. In Geys v Société Générale [2012] UKSC 63, the Supreme Court observed that "an obviously necessary incident of the employment relationship" is that "the other party is notified in clear and unambiguous terms that the right to bring the contract to an end is being exercised, and how and when it is intended to operate" [my emphasis].[76]Section 97 of ERA contains provisions regarding the ‘effective date of termination’ of the employment for the purposes of, among other things, unfair dismissal claims. It says: “(1)Subject to the following provisions of this section, in this Part “the effective date of termination”— (a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires, (b)in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect. …”[77]S.97(2) provides that the EDT in the case of a dismissal will be extended for certain purposes to the date statutory notice would have expired (if not fully served). This is for the purposes of calculating the length of qualifying service to bring claims or for calculating a basic award and the EDT is as prescribed by s.97(1) for other purposes.[78]The EDT, a statutory construct, is often but not inevitably the same as the contractual termination date. As set out above, when notice is given, the EDT is the date on which the notice expires. After notice has been served, can the parties agree shorter or longer notice and thereby bring forward or push back the EDT? The authorities were reviewed by the EAT in Willets v Jennifer Trust for Spinal Muscular Atrophy UKEAT/0282/11. It held that Dr Willets's original notice had been varied by agreement between the parties during the notice period, so that the date of termination was extended to 6 August.[79]In Robert Cort & Son Ltd v Charman [1981] IRLR 437, the EAT held that, where an employer dismisses an employee without giving the contractually required period of notice, the EDT for unfair dismissal is the date of the summary dismissal, irrespective of whether the employer made a payment in lieu of notice (save for the purposes of calculating service and the basic award as outlined earlier).[80]Section 94 of the Employment Rights Act 1996 (ERA) provides that an employee has the right not to be unfairly dismissed. It is in the following terms so far as relevant: “98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) … (b) relates to the conduct of the employee, …(3) …(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[81]A reason that relates to the conduct of the employee is, therefore, one of the ‘potentially fair reasons’ listed (s.98(2)(b) ERA). Where, as here, the employer relies upon a reason related to conduct, it does not have to prove at this stage of the analysis that the conduct actually did justify the dismissal; the Tribunal will later assess the question of reasonableness for the purposes of section 98(4). At this stage, the burden on the respondent is not a heavy one. A “reason for dismissal” has been described as a “set of facts known to the employer or it may be of beliefs held by him which cause him to dismiss the employee.” (Abernethy v Mott Hay and Anderson [1974] ICR 323).[82]Once a potentially fair reason for dismissal is shown, the Tribunal must be satisfied that in all the circumstances the employer acted fairly in dismissing for that reason (Section 98(4) of ERA). There is no burden of proof on either party when it comes to the application of section 98(4).[83]The Tribunal must not substitute its own decision for that of the employer in this respect. Rather, I must decide whether the respondent’s response fell within the range of reasonable responses open to a reasonable employer in the circumstances of the case (Iceland Frozen Foods Limited v Jones [1982] IRLR 439). In a given set of circumstances one employer may reasonably decide to dismiss, while another in the same circumstances may reasonably decide to impose a less severe sanction. Both decisions may fall within the band of reasonable responses. The test of reasonableness is an objective one.[84]In a case concerned with conduct, regard should be had to the test set out by the EAT in British Home Stores v Burchell [1978] IRLR 379 in considering section 98(4) of ERA: “What the Tribunal have to decide …. whether the employer … entertained a reasonable suspicion amounting to a belief in guilt of the employee of that misconduct at that time … First of all there must be established by the employer the fact of that belief, that the employers did believe it. Secondly that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think that the employer at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”[85]This well-established guidance was endorsed and summarized by Mummery LJ in London Ambulance Service NHS Trust v Small [2009] IRLR 536 where he said the essential enquiry for Employment Tribunals in such cases is whether, in all the circumstances, the employer carried out a reasonable investigation and at the time of dismissal genuinely believed on reasonable grounds that employee is guilty of misconduct. If satisfied in those respects, the Tribunal then must decide whether dismissal lay in the range of reasonable responses.[86]Single breaches of a company rule may found a fair dismissal (e.g., The Post Office t/a Royal Mail v Gallagher EAT/21/99). Exactly what type of behaviour amounts to gross misconduct will depend on the facts of the individual case. However, it is generally accepted that it must be an act which fundamentally undermines the contract of employment (i.e., it must be repudiatory conduct by the employee going to the root of the contract – Wilson v Racher 1974 ICR 428, CA). Moreover, the conduct must be a deliberate and willful contradiction of the contractual terms or amount to gross negligence (Sandwell and West Birmingham Hospitals NHS Trust v Westwood EAT 0032/009).[87]ACAS publishes a Code of Practice (COP) on Disciplinary and Grievance procedures. It is designed to help employers and employees deal with disciplinary and grievance situations in the workplace. A failure to follow the COP will not, of itself, make an individual or organisation liable to proceedings, however Tribunals will take the COP into account when considering relevant cases.[88]Paragraph 4 of the COP provides that 'Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.' This is one of the basic elements of fairness within the ACAS Code. The COP further provides that: “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.”[89]In para 12 of the COP, it is stated that: “12 … At the meeting, the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been raised. The employee should also be given a reasonable opportunity to ask questions, present evidence, and call relevant witnesses. They should also be given an opportunity to raise questions about any information provided by witnesses.”[90]There is similarly support in caselaw for the importance of letting the accused know of the case against them and the evidence in support of it to allow the employee to contest it. The EAT in Spink v Express Foods Group Ltd [1990] IRLR 320 opined: “… fairness surely requires in general terms that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence, and to adduce his own evidence and argue his case…”
Compensation
[91]An award of compensation for unfair dismissal consists of a basic award and/or a compensatory award.[92]The formula for calculating the basic award is prescribed by legislation. Where the Tribunal considers that any conduct of the claimant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award, the Tribunal shall reduce that amount accordingly (s.122(2) of ERA). In contrast to the compensatory award, a basic award may be reduced for conduct which was not causative of the dismissal.[93]The compensatory award is such amount as the Tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the employee as a result of dismissal insofar as attributable to actions of the employer. The compensatory award is to be assessed so as to compensate the employee, not penalise the employer and should not result in a windfall to either party (Whelan v Richardson [1998] IRLR 114).[94]Where a Tribunal concludes a dismissal was unfair, it may find that the employee would have been dismissed fairly in any event, had the employer acted fairly, either at the time of the dismissal or at some later date. The Tribunal must assess the chance that the employee would have been dismissed fairly in any event then the reduce the losses accordingly. Such reduction may range from 0% to 100% (Polkey v AE Dayton Services Ltd 1988 ICR 142, HL).[95]If the Tribunal finds that the employee has, by any action, caused or contributed to his dismissal, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding (s.123(6) ERA). If the Tribunal determines that there is culpable or blameworthy conduct of the kind outlined, then it is bound to make a reduction by such amount as it considers just and equitable (which might range from 0 to 100%). Wrongful dismissal[96]The Employment Tribunal has jurisdiction to consider claims for recovery of damages for breach of contract pursuant to the Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994, SI 1994/1623. A relatively common species of breach of contract claim in the Employment Tribunal is a complaint of wrongful dismissal. This is a complaint that the employer has, in dismissing the employee, breached the terms of the contract of employment, usually by failing to give or pay in lieu of the contractually required notice.[97]Where an employee has committed a repudiatory breach of contract, an employer may be entitled to dismiss without giving notice. Such a breach may be gross misconduct or gross negligence, and the level of conduct or negligence required is a question of fact for the Tribunal. An employer has a choice whether to accept the repudiatory breach and terminate the employment contract or whether to affirm the contract. If the employee has not committed a repudiatory breach of contract, then an employer may still terminate the contract but must do so in accordance with its terms as to notice if the employer is to avoid being liable for breach of contract. Sections 86 to 91 of ERA incorporate into all employment contracts certain minimum notice periods in the event that no or lesser notice periods are contained in the agreement between the parties.[98]Unlike in the civil courts, the only remedy available for a breach of contract claim in the Employment Tribunal is damages. The principle, broadly, in assessing damages is to put the employee in the position they would have been in if they had not suffered the breach. The employee is under a general duty to reduce her losses by taking reasonable steps to find another job. Any income during the period of loss must be deducted from the damages payable by the employer. If the employee unreasonably fails to mitigate, then damages may be reduced by the amount that the employee would have received had they taken reasonable steps to mitigate. In an assessment of damages, the contract breaker is to be taken as having performed his obligations in the least onerous way possible. The calculation of damages in a wrongful dismissal is usually limited to the amount of money the employee would have earned during her notice period or, where applicable, until the expiry of a fixed term (where it is not terminable on earlier notice). Unauthorised deductions from wages – holiday pay[99]Under the section 13 of ERA, a worker has the right not to suffer unauthorised deductions from her wages. Under section 23 of ERA, a worker may complain to an employment tribunal that an employer has made a deduction from her wages in contravention of section 13. Where a tribunal finds such a complaint well founded, it shall make a declaration to that effect and order the employer to pay the amount of the deduction (section 24 ERA).[100]The Working Time Regulations 1998 (WTR) came into effect in 1998. Under the WTR, workers are entitled to 5.6 weeks’ annual leave. The right is made up of:a. a basic entitlement a minimum of four weeks’ annual leave each year, implementing the right to annual leave under the WRD (referred to in this judgment as the ‘Basic Entitlement’; andb. an additional entitlement to 1.6 weeks’ annual leave each year, which is a right under UK domestic legislation only (‘Additional Entitlement’).[101]Under the WTR, employees are entitled to payment in lieu of accrued untaken holiday outstanding at the date of termination. A failure to pay in lieu of annual leave which has accrued on termination can be enforced by way of a claim for an unauthorised deduction from wages under section 13 of ERA.[102]Those parts of the WTR which are of relevance to the issues are reproduced: “Reg 2: Interpretation … “relevant agreement”, in relation to a worker, means a workforce agreement which applies to him, any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer; … Reg 13: Entitlement to annual leave(1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year. . . . (3) A worker's leave year, for the purposes of this regulation, begins— (a) on such date during the calendar year as may be provided for in a relevant agreement; or (b) where there are no provisions of a relevant agreement which apply— … (ii) if the worker's employment begins after 1st October 1998, on the date on which that employment begins and each subsequent anniversary of that date. … Reg 13A: Entitlement to additional annual leave (1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2).(2) The period of additional leave to which a worker is entitled under paragraph (1) is— … (e) in any leave year beginning on or after 1st April 2009, 1.6 weeks.(3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days. … Reg 14: Compensation related to entitlement to leave (1) Paragraphs (1) to(4) of this regulation apply where — (a) a worker's employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date”), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13 and regulation 13A differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3). (3) The payment due under paragraph (2) shall be— (a) such sum as may be provided for the purposes of this regulation in a relevant agreement, or (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula— (A x B) – C where— A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A; B is the proportion of the worker's leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. …” Submissions[103]Ms Mechan gave an oral submission. C declined to give a submission. The entire content Ms Mechan’s submission has been carefully considered and taken into account in making the decision in this judgment. Failure to mention any part of the submission in the judgment does not reflect a lack of consideration. Ms Mechan’s submissions are addressed in the ‘Discussion and Decision’ section below, in which I set out where the submissions are accepted, where they are not, and the reasons for this. Observations on the evidence[104]There were a number of factual disputes between the parties. I have only resolved those where it is relevant and necessary to do so to decide the issues in the claim.[105]C gave evidence that she had worked Christmas day 2019. She could not remember what time she had worked or why the Club opened on that occasion. Ms Mechan put to her that it was not open on Christmas day that year. C’s response was that it was not open to members but in that period “Clubs came in from all about the area because there wasn’t any regular leagues”. I did not accept C’s evidence that she had worked on that date on the balance of probabilities. She provided no detail of any particular function or event that had caused her to require to open the Club that Christmas day. She could not recall what hours she had worked. I found her suggestion that the Club was closed to the members on Christmas day but opened up to members of other clubs from the area implausible.[106]A number of conflicts arise in relation to the Board meeting of 16 January which (parties agree) C did not attend. C’s evidence during cross examination appeared to be that she was not given notice of this meeting and that this was why she didn’t attend. I concluded that adequate steps had been taken by the Chairman to ensure C was aware of the meeting in advance and that she did not attend because she was not at the Club. The meeting was scheduled during normal business hours on a working day for C. When she was initially asked why she didn’t attend the meeting, she did not answer that question but asked to see the minutes. When asked again, C said “I’d need to know what day it was and whether I was notified”. When Ms Mechan pointed out it was a Thursday, C’s response was to challenge the legality of the minutes because of the lack of her signature on the document. I was not persuaded that C had not been placed on notice of the meeting. She equivocated in response to questioning and more than once sought to change the focus of the questions to the form of the minutes. She gave no evidence as to why she was not on the premises at the time in question.[107]Given the central role C ought to have been performing at board meetings as Secretary, it seemed to me that if she had not been told the date of a board meeting she would, if discharging her duties properly, have made enquiries to find out the date. She knew the board met monthly. C gave no evidence of having done so, either before or after the meeting. In weighing the evidence to come to a finding about C’s notification of the January meeting, I noted that C also suggested in her evidence that she wasn’t placed on notice of the meeting on 13 February 2020 but, as discussed below, that suggestion is undermined by the contents of her own letter of 7 February.[108]One of the items recorded in the minutes of 16 January 2020 was that the Board did not have computer passwords or access to the bank accounts. C’s evidence was that she had given passwords to HD, though it wasn’t entirely clear to me whether she referred to bank passwords or computer passwords. With respect to the situation concerning bank passwords, HD’s evidence was that the minutes of the meeting of 16 January accurately reflected the situation at the time, namely that HD had asked for but not received access to the bank accounts. C challenged the minutes of the meeting on the basis they referred to arrangements for a Christmas lunch in December. She suggested (and HD denied) that these were bogus minutes created after the fact. On the balance of probabilities, I accepted HD’s evidence that (at that time), HD had sought access to the bank accounts to monitor the day-to-day cash assets of the Club and that C had not provided her with the passwords or otherwise facilitated access for her. I accepted HD’s account that C was resistant to facilitating this level of involvement for HD.[109]I reached this conclusion in part because HD’s evidence was consistent with the board minutes of 16 January 2020 as well as the minutes and other documentation HD prepared on 13 February. I was unconvinced by C’s suggestion that the Board minutes were bogus or invented either because they contained erroneous content or because they were not signed. It seemed to me that the presence of erroneous content relating to December did not tend to suggest fakery. If an individual set out to fabricate a document and falsely record discussions, they may be likely to take more, not less care, to ensure no errors in the content. It was unclear whether C’s suggestion was that the meetings were falsely represented in the minutes or that they didn’t take place at all and the minutes were pure invention. Insofar as the latter was suggested, it seems highly improbable that a board which routinely met monthly decided not to do so for one or two months but instead the Chair fabricated minutes of fictitious meetings. On the balance of probabilities, it seemed to me more likely that the meetings occurred and HD used previously created templates / documents when preparing the minutes which accounted for the incongruous content. There were similar issues with the minutes dated 13 March. In that case, HD appeared to have pasted in a document previously prepared (probably in early February 2020) under the heading AOB without reviewing it to make the necessary edits for the updated context of its use.[110]It seemed that C may have been suggesting that HD prepared the minutes of the 16 January meeting much later for the purposes of the present proceedings. Again, if such were her suggestion, I do not accept it on the balance of probabilities. C’s letter of 5 February directly refers to concerns of the Board regarding the hours she had been working. There was no evidence of a conversation about this from either side in the wake of the January meeting. As C wasn’t present at the meeting, it is a reasonable inference that C had had sight of the minutes when preparing her letter of 5 February. C’s letter also makes clear she knew the date of the next meeting (also recorded in the minutes of 16th January). Given the nature of C’s role and responsibilities, it would be remarkable if she did not make efforts to procure herself a copy of the minutes of any Board meeting which she did not attend soon afterwards. She gave no evidence of attempting to do so or of being thwarted by the board in any attempt.[111]I was also unconvinced by the suggestion that HD had invented the narrative that she lacked access to the bank accounts for oversight. A number of written records and correspondence supported HD’s position that, at the time, not only did she lack this access, but it was causing considerable angst at board level. On the other hand, there was a lack of any detailed or specific evidence from C about exactly when and how she had facilitated access to the bank accounts for HD.[112]It was HD’s evidence that, while C was on holiday, the day before the board meeting on 13 February, they had accessed the office and changed the locks. She did not explain why it had been necessary to change the locks when she mentioned this during her evidence in chief. She went on later to say that the following day, with the accountant, it had been necessary to call a locksmith to get access to cabinets. The board minutes referred to the Board not having keys to the stadium and the letter of 17 February which said “We have found it necessary to change the lock on the office door”. This, alongside HD’s initial evidence in chief, created an impression that C had been asked to but had refused to provide HD with a key to the office before her holiday, necessitating a locksmith to gain access.[113]HD further indicated in her evidence that she did not have access to the safe key during C’s absence. She also maintained during cross examination that she didn’t speak to C on the evening of 18 February. I have found that HD was wrong in so far as an impression was given that the office door lock was changed because she hadn’t been left a key. I have found her evidence was wrong about not having access to a safe key during C’s absence and about not speaking to C on 18 February. The recording of a phone call on that date was played to her and HD later conceded having spoken to C. The recording confirmed HD explained her office key had broken in the lock which was the reason for changing the lock on the door to the office. It also made clear HD had access to the safe key while C was away and had hidden it in a ‘safe place’. HD later accepted during cross-examination that she and the receptionist had both had keys to the office but that her key had broken in the lock when trying to enter. HD’s evidence about when and whether an external locksmith attended and the identity of that locksmith was also very confused. On re-examination, more detail was provided about all the various keys to different rooms / areas or furniture in the stadium and HD said she didn’t have a full set; she lacked keys to the safe, cabinet and desk when C was on holiday.[114]HD’s evidence about keys was muddled. I concluded that aspects of HD’s account of the sequence of events about accessing the office and the safe/locked drawers were unreliable. It is fair to record that the events had taken place over 5 years before HD gave evidence to the Tribunal. I accepted that the inconsistencies in the evidence about these matters was attributable to genuine lapses of memory as opposed to an intention to mislead the Tribunal.[115]I accepted, on the balance of probabilities, that HD lacked access to keys for desk drawers and cabinets once inside the office. C’s account that these were laid out on her desk is not credible, given a large group of people accessed the office on or about 13 February and tried to gain access to these spaces. It stretches belief that none of the individuals noticed keys laid out as described.[116]I also accepted as a general proposition that HD did not hold a full set of keys for the Club. This aligns with what HD recorded in the minutes of the meeting of 16 January 2020. However, apart from C’s access to those minutes, there was no evidence that HD had specifically asked C for additional keys including the cabinet and drawer keys before C’s departure.[117]A further disputed matter concerning events during C’s holiday was the accuracy of the computer passwords. It was C’s evidence to the Tribunal that she gave the correct passwords. HD said multiple people tried to access the computer using the passwords written down by C and were unable to do so. HD’s account is consistent with what she wrote in her letter of 17 February when she said ‘the passwords you gave me to get into the computers were … wrong’. It was also recorded by HD in the notes she prepared on 19 February. On the balance of probabilities, I accepted HD and others tried to access the computers using the passwords C had given but couldn’t. On balance I concluded that C had deliberately provided incorrect passwords to HD. This seemed to me to be in keeping with other aspects of C’s conduct during the material period. C later removed or retained property and information belonging to C when placed on garden leave, refusing or delaying in returning these items. She was not welcoming of scrutiny from the Board and the deliberate provision of inaccurate passwords was knitted into a pattern of behaviour.[118]An area of emphatic dispute was whether C uttered words amounting to a resignation at the meeting on 19 February 2020. C said she did not. She said that after MM left she had said ‘I’m leaving too’ (meaning she was leaving the meeting too) but that in fact she had stayed for a further 20 minutes and chatted calmly with ES about ways in which the board could support her in her role in the future. It was HD’s evidence that C said she was leaving and was going to take the Club for a lot of money. ES gave evidence that C said words like ‘I’ve had enough of this place and I’m out of it, I’m leaving.’[119]I concluded on the balance of probabilities that C did, on 19 February, C say words like: “I’ve had enough of this.” And “I won’t be back at all.” There was corroboration between HD and ES’s account with respect to whether C used words to indicate she was merely leaving the meeting or, as they maintained, that she was leaving her job. Their accounts were also consistent with the documentation HD prepared at the time including, in particular, her letter of 20 February, the board minute of 2 March, her letter of 2 March and her lengthy account of the 19 February meeting included with Board Minute of 11 March. On balance, I am not persuaded that HD and ES both misunderstood, or fabricated C’s words at the meeting.[120]It is worth observing that, although there was considerable focus on this dispute, given R’s implicit acceptance of C’s return to her employment thereafter, the question of whether C’s words did or did not connote a clear and unequivocal resignation is less crucial than envisaged by parties.[121]C accepted that on 24 February 2020, C wrote cheque 001495 for £1,500 in favour of herself from the Club bank account and cashed it on 25 February 2020. Her evidence was that she used the cash to pay three members of staff’s wages. I make no finding about the ultimate use of the funds. However, I have found that although J Corrigan was ostensibly the second signatory on the cheque (with C being the first) he in fact did not sign it. I accepted the evidence of AS that he asked JC if he had signed the cheque and that JC had denied doing so. I further accept his evidence that the bank had noticed that the signature looked irregular and processed a fraud refund of the cheque. When cross examined on the matter, C gave little comment on the issue and offered no explanation for the discrepancy in relation to JC’s purported signature. Discussion and Decision When was the Effective Date of Termination?[122]R concedes that there was a dismissal but there is a lack of clarity as to when it took place. At the meeting on 19 February, C said: “I’ve had enough of this. I won’t be in in the morning. In fact, I won’t be back at all.” R’s case, as I understand it, is that there was a clear and unambiguous resignation on that date. On the particular facts and circumstances of this case, it is not necessary to decide whether C’s words were effective in communicating an immediate termination of her employment. It is unnecessary to dwell on the correct legal analysis of C’s utterance at the meeting because it is clear (and undisputed) that, following the19th February meeting, by their words and deeds, both C and R acknowledged and accepted a continuing employment relationship.[123]It is true that R wrote a letter purporting to accept C’s resignation on 20 February which was sent by recorded delivery but was not picked up by C or read until a copy was handed to her on 25 February. However, in the meantime, R had knowingly tolerated C’s continued attendance in the workplace and her continued access not only to the building but to R’s records, cash safe and bank account. On 2 March when C said she was ill and unfit to continue working, HD told her she should arrange cover. HD’s letter of 2 March 2020 intimated that C’s last day of employment would be 18 March 2020. The conduct of both C and R can only be explained by the belief of both in a subsisting and continuing employment relationship in the period after the meeting on 19 February.[124]If C’s words on 19 February did amount to effective notice of resignation, that resignation could only be construed as being with immediate effect. “I won’t be back in the morning. In fact, I won’t be back at all,” she said.” There is no scope to interpret these words as intimating notice that C was ending her employment with effect from some ascertainable later date (on the expiry of contractual notice or otherwise). If C’s words intimated a resignation which could safely be relied upon as ‘intended’ by R, that resignation took effect on 19 February. By their subsequent actings, the parties impliedly agreed that such immediate resignation be retracted, notwithstanding the terms of HD’s letter of 20 February.[125]By witing to C in the terms contained in HD’s letter of 2 March 2020, R intimated a clear intention to end the employment relationship and to do so on 18 March 2020. Whether R was contractually entitled to do so in the circumstances, having regard to the terms of the contract with respect to notice, is discussed below in the context of C’s wrongful dismissal complaint. Nevertheless, for the purpose of ascertaining the EDT, as of 3 March 2020, C had read HD’s letter of 2 March and that letter gave notice that R was terminating her employment 15 days thence. There was no ambiguity.[126]On 9 December 2024, when conceding there had been a dismissal, Ms Mechan asserted that the date of the dismissal was 3 March 2020. This was a suggestion she repeated in her final submission when she said that R’s evidence was that C was dismissed at or following the board meeting of 2 March 2020. It is correct that HD wrote her letter of 2 March (read by C on 3 March) following the board meeting of 2 March. However, that letter is explicit that C’s last day of work would be the 18th, not the 3rd of March. The only circumstance in which that date might have been altered is if both parties agreed to it being brought forward. In C’s letter dated 9 March 2020, she makes an assertion that R’s explanation of why she should not return to work meant that her contract was terminated on Tuesday 3 March 2020.[127]This assertion appears be premised on the fact that HD told her in her letter of 6 March that she was not allowed back in the Club because she caused a serious disruption on Tuesday 3 March. C’s assertion of an earlier dismissal date for this reason is misconceived. HD was merely explaining why C was not allowed back in the Club (that is, why C had been placed on garden leave). HD told C that this was because of C’s behaviour that day. There was no suggestion on the 3rd of March 2020 that R was terminating the employment (as opposed to placing C on garden leave) with effect from that date. C’s assertion that an earlier dismissal had taken place is unsustainable with reference to the evidence.[128]An EDT cannot retrospectively be pushed back to a date before the termination was communicated. For termination to be effective, the dismissal must have been communicated. In any event, there is no evidence that R agreed to a change to the termination date from the 18th March to an earlier date following C’s assertion. R did not comment on C’s opinion that the termination date was 3 March, much less agree. Rather, R processed C’s employment as having terminated on 18 March for the purposes of calculating her final salary and holiday entitlement. It is noted that C herself has also recorded an end date of 18 March 2020 in her ET1 form. The parties did not agree to vary the termination date after R gave notice that the employment would end on 18 March.[129]I find, therefore, that R dismissed C as envisaged by section 95(1)(a) of ERA and that the EDT was 18 March 2020. This date was clear and ascertainable from HD’s letter of 2 March. C’s alternative analysis of the relevant date in her letter of 9 March did not alter the EDT. What was the reason or principal reason for C’s dismissal?[130]I accept R dismissed C for a reason relating to C’s conduct for the purposes of s.98(2)(b) of ERA. C did not advance an argument that she was dismissed for a reason or reasons unrelated to her conduct albeit she clearly disputed that her conduct was culpable or that it should be characterised as gross misconduct. Ms Mechan did not put forward any submission about the reason for the dismissal. She did not advance any case that it was for reasons unrelated to C’s conduct. No argument was made that this was a ‘some other substantial reason’ (SOSR) case based on an erroneous belief on R’s part that C had given notice of a future resignation and that R was somehow at liberty to select the effective date.[131]In any event, based on all the facts and circumstances, I would not have found an SOSR argument to be well founded. There was no objective basis upon which the Board could believe that C had intimated on 19 February that she was resigning with effect on 18 March. There was no evidence that C indicated at the meeting on 19 February that she was providing any period of notice, much less a period of one month (bearing no relationship to her contractual obligation as to notice).[132]I acknowledge that what matters is what R’s subjective reason for dismissing on 18 March was, whether or not this was objectively rational or based on a sound legal analysis. Nevertheless, I am satisfied, on the evidence, that – even if the board erroneously believed HD’s report of ACAS’s apparent advice regarding the status of the resignation – the principal reason for terminating the employment was nonetheless a reason related to C’s conduct. There was a focus first and foremost on concerns about C’s conduct in the minutes of the discussion at the Board meeting on 2 March. The Board knew they had a choice to make about whether C’s employment should carry on or not and they knew that they chose to end it. It is clear that the reason for doing that was rooted in their perception of C’s conduct at work as narrated in the minutes. The dominance of this motive in their actings is reinforced by later communications. When C asked JC on the evening of 3 March why she was sacked, JC told her that she had caused a serious disruption with reference to events during her absence on holiday. Though JC was not herself a board member involved in the decision-making, this was the reason which had been reported to her by HD or other board members of R.[133]I am satisfied that the principal reason for which R dismissed C was a reason relating to C’s conduct for the purposes of s.98(2)(b) of ERA as opposed an error with respect to the effect of C’s words at the meeting on 19th February. If the reason was conduct, did R act reasonably in all the circumstances in treating that as a sufficient reason to dismiss C?[134]The question for the Tribunal is whether, applying section 98(4), in all the circumstances of the case, R acted unreasonably in treating the conduct relied upon as a sufficient reason to dismiss C. I remind myself that I must avoid substituting my own view of the matter for that of R, and of the need to assess objectively whether R’s approach fell within the range of reasonable responses.[135]Neither C nor Ms Mechan gave any submission on how Burchell should be applied to the facts and circumstances of this case. At the time the belief was formed, had R carried out a reasonable investigation?[136]R had formed its belief in C’s guilt of certain conduct at the time of the Board meeting on 2 March 2020 when it resolved to bring C’s employment to an end on 18 March 2020. At that time, the board discussed C not taking orders easily, not keeping the board up to date with the Club’s financial affairs, and becoming angry and confrontational when matters were raised with her. More specific concerns had been discussed by the board at the meetings on 16 January and 13 February, and HD prepared a lengthy 5 page document on 18 February setting out her concerns about C’s conduct in some detail.[137]The investigation into those concerns by R before 2 March was very limited. It is true that HD and ES met with C for the purposes of exploring the matters on 19 February though relatively little progress was made at that meeting, in large part, as a result of C’s defensive reaction to HD’s questioning. HD only got as far as discussing the insurance renewal and the Tennents invoice with C before the meeting was derailed. There was no attempt to have further discussions with C about the matters in HD’s document between 19 February and 2 March when R resolved to terminate the employment. While R might (with reason) have feared that any further meeting would again simply result in a heated escalation, there was no evidence that HD or others at R wrote to C to put their allegations and concerns to her in written form to enable her to comment or explain her position by that means. Nor did HD or other board members attempt, for example, to contact the insurance broker themselves to satisfy themselves of the position regarding the Club’s insurance or Tennents to enquire further about the invoice.[138]R did not put to C at all the other outstanding matters in HD’s document which had not been discussed at the meeting. These included matters like concerns over C’s working hours, her alleged lack of timely holiday requests, her alleged poor sickness absence reporting and her alleged withholding of bank passwords.[139]I recognise the importance of avoiding a substitution mindset. It matters not whether I would have approached the investigation in a different manner. I also recognise the importance of the context of the organisation. R is a small employer with a board of voluntary non-executive directors and without access to in-house HR expertise or other administrative resources. It is also fair to reflect that R’s board was, to some extent, thwarted in their ability to investigate their concerns by a lack of direct access to records and bank accounts as a result of C’s approach. Further, it is fair to allow that R was misguided about the status of C’s resignation and that this influenced their understanding of the importance of a reasonable investigation before deciding to end the employment.[140]However, even allowing for the particular circumstances and challenges faced by R, I am not persuaded that R’s investigation at the time they resolved to terminate (on 2 March) fell within the range of reasonable responses. Whatever R’s misunderstandings, R did know at the Board meeting of 2 March that they were choosing to end C’s long period of continuous employment and that they were doing so because of they’d formed a belief that C was guilty of certain misconduct. An employer in their position, acting reasonably, would have carried out further investigations before bringing the employment to an end. Did R otherwise act in a procedurally fair manner?[141]It is not strictly necessary to consider whether R otherwise acted in a procedurally unfair manner standing my finding above regarding the reasonableness of the investigation. Had I required to do so, I would have found that R did not act in a procedurally fair manner in dismissing C. R did not follow the principles of the ACAS COP. C was not notified in writing of the problem, and no disciplinary meeting was held. Nor was any appeal offered. Likewise, R did not follow its own disciplinary procedure as set out at paragraph 10 in a number of respects, including, in particular, that C was not given an opportunity to state her case before the Board took the decision to dismiss on 2 March 2020. Again, I take into account all the facts and circumstances of the case, including R’s lack of administrative and HR resources and HD’s reporting of ACAS’s apparent advice to the board meeting regarding the status of C’s ‘resignation’.[142]Even allowing for these circumstances, I am not persuaded that the procedure employed by R fell within the range of reasonable responses. R knew they were choosing to end C’s employment, and they omitted to take any steps in line with their published procedure to ensure she knew the allegations against her and had an opportunity to respond. I would not have found that R’s approach to the process fell within the range of reasonable responses.[143]Given the above findings, it is unnecessary to go on to consider whether R had a reasonable belief in C’s guilt or whether dismissal lay in the range of reasonable responses (for the purposes of assessing liability at any rate). I find that R unfairly dismissed C by failing to conduct a reasonable investigation and by failing to carry out an otherwise reasonable procedure. Unfair Dismissal Remedy Basic Award[144]C confirmed she does not seek reinstatement or re-engagement. I begin by considering the basic award. C was employed from 1 September 1999 until 18 March 2020. (The length of service remains as 20 years when the EDT is extended by adding the statutory notice period of 12 weeks). At the time when her employment ended, the annual salary she was being paid was £23,976. This included an unauthorised pay rise which C applied to herself from June or July 2019. Ms Mechan made no submissions regarding the correct approach to calculating a week’s pay for the purposes of the basic award in the circumstances. I note the ET3 asserted C’s annual salary was £22,500.[145]The provisions governing the calculation of a week’s pay are contained in section 221 of ERA et seq. Section 221 (2) specified that “Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.”[146]It is therefore necessary to determine the amount which is payable under the contract of employment. C’s contract provided for a 3% annual pay rise each January and stipulated that this pay rise was “guaranteed”. No submissions were made by either party about the implications of this contractual term. Neither party has denied the applicability of the contract or suggested the term was varied, superseded or revoked. Had the 3% increase been duly applied, C’s salary would have risen in January 2018 from £21,500 to £22,145 (i.ee. £21,500 plus £645). It would have risen in January 2019 to £22,809.35 (i.e. £22,145 plus £664.35). It would have risen again in January 2020 to £23,493.63 (i.e. £22,809.35 plus £684.28). I find that this was the amount payable under the contract at the material time and have, therefore, used this figure to calculate a week’s pay as £451.80.[147]C turned 41 in April 2010. She was therefore employed for 9 complete years at 41 or over and for 11 complete years under that age. Her basic award is, therefore, (11 x 1 x 451.80 = £4,969.80) PLUS (9 x 1.5 x 451.80 = £6,099.30) = £11,069.10. Would it be just and equitable to reduce the basic award because of any conduct of C before the dismissal? If so, to what extent?[148]R in the paper apart to the response contends that any compensation should be reduced by 100% for contributory fault. When considering whether there is conduct, for the purposes of s.122(2) of ERA which was such that it would be just and equitable to reduce the basic award, it is not necessary that R discovered the conduct before the dismissal or that the conduct caused or influenced the dismissal.[149]C was guilty of conduct which was highly culpable before her dismissal. It is not necessary to list all instances of her misconduct. Some particularly abhorrent examples include: i. Paying herself in lieu of a public holiday which she did not work (25 December 2019); ii. Providing incorrect passwords for R’s computers when C left on holiday in February 2020. iii. The fact that C became defensive and aggressive when HD raised matters with C (in particular on 19 February 2020). iv. On 24 February 2020, writing a cheque in favour of herself from the Club bank account for £1,500 and cashing it the next day in circumstances where(a) the second signature (J Corrigan) was not authentic and(b) C entered no record in the Club’s accounting system to account for the payment of the monies to herself. v. Withholding property belonging to R in February / March 2020 despite requests for its return including a laptop, cheque books and keys; vi. Refusing or delaying in providing R with bank account passwords; vii. Processing at least 3 bank payments from R’s or the Club’s account on 4, 6 and 12 March after she had been placed on garden leave to JW’s account without obtaining authorisation from the board to do so and without making adequate records for R; failing to set the sums already received by BACS off in the calculation in C’s letter of 9 March or to update the calculation after the last payment of 12 March; viii. Retaining confidential documentation belonging to R on the termination of C’s employment in circumstances where the return of the property had been requested.[150]This conduct was such that I am satisfied that it is just and equitable that C’s basic award be reduced to zero. In reaching this conclusion, I take into account the egregious nature of the conduct which fundamentally breached both the express terms of C’s contract (with regard, for example to the return of company property on termination) and the implied term of trust and confidence. C was contracted to provide treasury and accounting services to the Board, a role which required transparency and integrity. The conduct outlined above was undermining of the trust which the Board ought to have been able to place in her. Compensatory Award What financial losses has the dismissal caused C? The period of loss and relevant net pay figures[151]There was a dearth of documentary evidence before the Tribunal about C’s circumstances in the period after her dismissal. She gave evidence (which was accepted) that she had been ‘registered sick’ from 18 March 2020 to the date of the hearing but there was no medical evidence before me giving more details of C’s diagnosis or details of the benefits which she explained she received. Based on C’s evidence to such effect, I have accepted that the situation of the pending criminal proceedings influenced C’s health problems and her unavailability to seek employment.[152]When the hearing concluded on 3 April 2025, C had spent over 5 years without earnings during which she was in receipt only of benefits. However, this is not a case where there is open-ended loss; I am satisfied on the balance of probabilities that, had she not been dismissed on 18 March 2020, C’s employment would have ended in any event in due course in a lawful dismissal. Given the evidence of C’s conduct which came to light, I am satisfied on balance that C would have been dismissed in any event for gross misconduct by the 18 May 2020. There were a number of matters which R was not able to properly investigate until C was out of the office on garden leave and until someone with the skill and expertise to interrogate the financial situation (namely AS) had been installed. This would and did take a little time, given the records available and the priority to ‘right the ship’. By 27 April, AS had got a handle on the electronic bank payments which C had processed before and during her garden leave. By 7 May 2020, he was alerted to and making active enquiries in relation to the cheque.[153]I am satisfied that If C had remained in employment from and after 18 March 2020, she would have remained on garden leave from 3 March and R would have conducted a reasonable investigation into (at least) the instances of alleged misconduct listed at paragraph 149 as well potentially as other matters of concern recorded in HD’s aide memoire document around 19 February 2020. I am satisfied that, in light of the seriousness of matters, R would have progressed expediently from the investigation to a disciplinary hearing where, I find, the individual conducting the hearing would have concluded a reasonable belief in C’s guilt. I am satisfied that C would have been fairly dismissed for gross misconduct by 18 May 2020 (two months after C’s actual dismissal).[154]C’s losses are, therefore restricted to two months’ pay. In the absence of any submissions on the calculation, I have calculated C’s net loss as 2 x £1,596 = £3,192. This is based on the net monthly figure in her pay slip. I appreciate that this pay was based on the actual pay C was receiving including the selfawarded pay rise. However, the differential between the annualised gross salary she was receiving and the gross salary payable under her contract once the guaranteed annual pay rises are factored in is insubstantial. The difference slightly favours C. No analysis of the figures or alternative calculations were placed before me. On that basis, I have taken a ‘broad brush’ approach to assess C’s losses as two month’s net pay and to ascertain a figure for that period.[155]I add to that figure £350 for loss of statutory rights, bringing the total to £3,542. Recoupment of benefits[156]Where, as here, an employee has received universal credit, the position is governed by the Employment Protection (Recoupment of Benefits) Regulations 1996 SI 1996/2349 and ETA 1996 ss 16–17. Where the Tribunal makes an award, recoupment regulations operate. However, it is unnecessary in this case to be concerned with these regulations standing my findings below in relation to the question of contributory fault. Contributory fault[157]As mendioned in the context of the basic award, R in the paper apart to the response contends that any compensation should be reduced by 100% for contributory fault. Under section 123(6) of ERA, if I find that C has by any action caused or contributed to her dismissal, I must consider reducing the compensatory award by such proportion as I consider just and equitable, having regard to the finding. In contrast to reductions to the basic award under section 122(2), the conduct must have been known to R before the dismissal and must have caused or contributed to the dismissal.[158]The decision to dismiss was taken at the Board meeting on 2 March and communicated on 3 March. Therefore, C’s conduct in processing payments to JW on and after that date during her garden leave is not relevant to take into account for the purposes of s.123(6). Likewise, C’s withholding of company property during her garden leave is not relevant to section 123(6) and neither is the issue regarding the £1,500 cheque C cashed on 25 February. Although the latter conduct took place R decided to end C’s employment, the board did not become aware of it until after C’s employment terminated. Although R had concerns about C’s practices with regard to recording and requesting her holiday, the Board was not fully aware on 2 March 2020 when it resolved to dismiss C that she had paid herself in lieu of a holiday for Christmas day 2019 over and above her normal pay for that month. Nor did C’s retention of documents on her dismissal feature in the dismissal decision since that postdated the decision. I have taken none of this conduct into account in applying section 123(6) in the context of the compensatory award.[159]However, I am satisfied that other conduct of C caused or contributed to the decision to dismiss as minuted on 2 March. That minute is relatively brief and refers to C’s problems with taking orders, her unforthcoming approach with regard to the financial affairs of the Club and her confrontational response when HD raised matters. The minute also refers to the Board’s concerns about being effectively able to run the PLC in light of C’s approach. There is further evidence of the history and context to the Board’s discussion on 2 March as set out in the relatively brief minute. The minutes of the earlier Board meeting of 16 January set out the directors’ concerns at greater length, referencing the lack of passwords for the computer and access to the bank account. Likewise, HD’s documents of 13 and 19 February specified more fully the list of concerns. I am satisfied on the balance of probabilities that, when the Board resolved to terminate the contract on 2 March, these concerns which had previously been ventilated at board level in the weeks and months before influenced the decision making of HD and the other board members.[160]As discussed above, C held a position of trust. Some, if not all of the Board members to which C was contractually bound to provide accounting, treasury and secretarial services, were elderly individuals whose office as director was unpaid. They relied heavily on C as a salaried employee and manager to ensure the proper running of the Club both financially and operationally. C had cash handling and financial responsibilities. R’s Board relied upon her to provide them with clear and transparent information so that they could provide effective oversight. The acts and omissions which were identified as concerns (as listed in paragraph 159 above) went to the root of the contract. This conduct was of such culpability that I am satisfied that it is just and equitable that C’s compensatory award be reduced to zero.[161]Pursuant to section 123(6), I therefore reduce the compensatory award to zero. No award of compensation is made in respect of C’s unfair dismissal. Wrongful dismissal (notice)[162]C had a contractual notice period of 12 weeks (84 days). She was served with 15 days’ notice (served on 3 March 2020 to expire on 18 March). She was paid for the 15 days’ notice and so did not receive approximately 10 weeks of her notice period. Nor was she paid in lieu.[163]At common law, an employer is entitled to dismiss without notice, for gross misconduct. If the employee has committed a repudiatory breach of contract, the employer can accept it and terminate the contract (immediately).[164]I am satisfied that, viewed objectively, C was guilty of gross misconduct or a fundamental breach of her obligations and that, further, R terminated in response to this. R ‘accepted’ C’s breach and ended the contract, as it was (for common law purposes) entitled to do. C’s claim of wrongful dismissal is not well founded and is dismissed. Wages claim (holiday pay)[165]There were no submissions from either party on C’s claim for payment in lieu of outstanding holiday. However, she had explained her position in some detail when giving evidence. C said she was owed 11 days’ holiday.[166]She said her holiday year ran from September because she started in September 1999 and from there it carried on that her leave year was calculated from September. She said traditionally historically the Club had been closed with no work over the summer, re-opening in September with employees compelled to take holiday during the closure. However, more recently, her evidence was that (in 2019) she worked extensively during this period.[167]C relied upon the Conditions of Employment which she signed in 1999 with the Club. She referred to the table under the section beginning ‘On leaving the Club,..’ and said that there was no way she would have accrued 19 days by March in a year (as the table indicates) if the holiday year had only commenced in January. She suggested that this lent weight to her suggestion that the leave year in reality ran from September to September despite the fact that the document said it ran January to December. C’s case was that she had calculated that she accrued 10 days between September 2019 and December 2019 and a further 6 days between January and April 2020. She said she had taken 5 day’s holiday leaving 11 days’ accrued untaken leave a the point of termination.[168]Ms Mechan made no submissions about the holiday pay claim, though she had explained in the preliminaries that R’s position was that the annual leave year ran from January to December. My understanding of R’s position is that it denied any pay was due to C in respect of accrued untaken holiday as AS set out in his letter of 28 April 2020. What was C’s annual leave year?[169]Neither party took the position that the Conditions of Service document was not an enforceable contractual agreement which bound R and C with respect to holiday arrangements. On the contrary, I understood that R relied on the document to support its stance that the holiday year ran from January to December. C also relied upon the terms of the document in relation to her position that the calculation should be based on a higher accrual by her leaving month of March, having regard to the table. The parties to that agreement were not R and C but were the Club and C. Nonetheless, I have found that R and C treated themselves as bound by the document’s terms so far as not superseded by the document C signed around the time of her transfer, the terms of which were effective from 1 January 2017.[170]I am satisfied that the Conditions of Employment document was an agreement in writing which was legally enforceable as between R and C after the transfer of C’s employment to R insofar as it related to holiday provisions. These were not superseded in the 2017 document which said nothing about annual leave. It was, therefore, a ‘relevant agreement’ for the purposes of regulations 2(1) and13(3)(a) of the WTR.[171]The Conditions of Service stated: ‘you are entitled to take holidays in the holiday year which runs from 1st January – 31st December each year.’ Reg 13(3)(a) makes it clear that it is possible for a relevant agreement to stipulate a different annual leave year to that prescribed in R13(3)(b) of the WTR. The Conditions of Service document was effective in doing so. I am not persuaded it was varied by a different practice which the parties agreed either expressly or impliedly. C’s propensity to pay herself in December each year in lieu of public holidays worked that year (as opposed to in September) is supportive of a finding that the parties operated the contract based on the expressly prescribed leave year of January to December. When did C’s employment end?[172]I have found that C’s employment terminated on 18 March 2020. How much leave had accrued for the year by that date?[173]C suggested that she had accrued 16 days’ holiday by the termination date. However, that was based on her position that the holiday year ran from September, which I have found to be incorrect. She had broken down her calculation to two periods and said she was owed 6 days for the period between January and April 2020.[174]Regulation 14(3)(a) envisages that a Relevant Agreement may specify the sum payable in lieu of leave on termination of employment. In the absence of such specification, Reg 14(3)(b) sets out a default formula.[175]C was entitled both under her contract and under the WTR to 28 days’ annual leave per annum. The Conditions of Employment provided that 8 of these would be taken on public holiday dates. That document provided that on leaving the Club, entitlement to holiday pay in lieu would be proportional to the number of completed working weeks worked in the holiday year to the date of leaving less any holidays already taken. So far, this is unremarkable and uncontroversial. If the document said nothing more, I could proceed to the calculation of the accrued untaken leave as a straightforward matter.[176]However, the Conditions of Employment document goes on to provide a table. The intention appears to be that the table is illustrative of the general principle stated above it, namely that on leaving the Club, …entitlement to holiday pay in lieu will be proportional to the number of completed working weeks worked in the holiday year to the date of leaving less … holidays … taken. However, the table’s contents introduce confusion. There are three issues with them.[177]The first point is fairly minor. Having stated that the entitlement to pay in lieu will be proportional to the number of weeks worked (my emphasis), the table indicates a formula under which accrual is instead from month to month.[178]Secondly and more problematically, the table can only be made sense of on an implicit premise that the annual leave year runs not from January to December each year but from April to March. Hence, the table postulates, if the employee leaves in April of a given year, they would have accrued no holiday yet and the multiplier would be zero whereas if they leave, for example, on 1 March of a given year, they will have accrued 11/12 of the full year’s entitlement.[179]Thirdly, in the table, the full year entitlement of which a proportion is to be calculated is stated to be 20 days as opposed to 28 days (the full entitlement under Regs 13 and 13A of WTR).[180]A contract should be read as a whole, and, wwherever possible, a construction should be adopted which allows the contract to operate meaningfully over one which renders it practically unworkable. If the table were applied, it would lead to the result that, notwithstanding the clear statement that the holiday year runs from January to December and the equally clear statement that payment in lieu of holidays on leaving will be proportional to weeks worked in the holiday year, a contrary calculation would be applied, leading to anomalous results. Where there are rival constructions, weight can be given to the implications of these by reaching a view as to which construction is more consistent with business common sense.[181]I consider the statement of the approach which says entitlement will be proportional to the weeks worked in the holiday year to be clear, unambiguous and commercially sensible as well as in keeping with the statutory obligations in the WTR framework. I conclude the table which follows is merely intended to be illustrative of that principle. That is inferred because the principle is set out then followed by the words, ‘see table below’. In fact, the table below cannot be applied in a way that is consistent with the plainly expressed principle above it. As a matter of contractual construction, I consider it is permissible to disregard the table to allow the contract to operate meaningfully in a way that is lawful and commercially sensible. When the table is disregarded, there remains a legally enforceable relevant agreement for the purposes of Reg 2 of WTR.[182]The calculation of the leave based on that relevant agreement is as follows. C completed 11.1 weeks’ employment in the annual leave year starting 1 January 2020 to the date of leaving on 18 March 2020. Her annual leave entitlement for the whole year (52 weeks) was 28 days. She, therefore, accrued leave at the rate of 0.54 days per week. In 2020, C had accrued 6 days’ annual leave (11.1 x 0.54). In 2020, C had taken 5, 11, 12, 13, 14 and 18 February (6 days). C therefore had no accrued untaken annual leave outstanding in the annual leave year commencing January 2020 when her employment ended on 18 March that year.[183]C’s claim of unauthorised deductions from wages in respect of payment in lieu of accrued untaken holiday at the termination date is, therefore, not well founded and is dismissed.