Mrs J Hadley v R Turner T/a Aircare Compressor Services: 6006991/2025 Mrs J Hadley v R Turner T/a Aircare Compressor Services: 6006991/2025

EMPLOYMENT TRIBUNALS

Case No 6006991/2025

Between

Mrs J HadleyClaimant

R Turner T/a Aircare Compressor ServicesRespondent

Before

Employment Judge Walker

Miss Afiya Amesu (instructed by counsel) for claimant

Mr Connor Wright (instructed by counsel) for respondent

Date 6 March 2026

JUDGMENT

[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed by the respondent.

[2]There is a 50% chance that the claimant would have been fairly dismissed in any event.

[3]Is not just and equitable to award the claimant any compensation by way of a compensatory award.

[4]It is just and equitable to reduce the basic award payable to the claimant by 100% by reason of the claimant’s conduct before her dismissal.

[5]The complaint of breach of contract in relation to notice pay is not well-founded and is dismissed.

[6]The complaint of unauthorised deductions from wages in respect of five days’ holiday pay accrued but unpaid as at the date of termination of the claimant’s employment is not well-founded and is dismissed.

REASONS

[1]The claimant, Mrs Jacqueline Hadley, was employed by the respondent, Mr Richard Turner from 1st January 1995 until her dismissal on the 25th October 2024.

[2]The claimant claims that her dismissal was unfair within Part X of the Employment Rights Act 1996 (‘ERA’).

[3]The claimant further claims that the respondent wrongfully dismissed her by failing to pay her notice pay.

[4]The claimant further claims that the respondent made unauthorised deductions from her wages by failing to pay her five days’ accrued but unpaid holiday pay.

[5]The respondent contests the claimant’s claims. Insofar as the claimant’s claim for unfair dismissal is concerned, the respondent says that the claimant was fairly dismissed for conduct and that he was entitled to terminate her employment because of that.

[6]The respondent contests the claimant’s claims for notice pay and holiday pay. The respondent says that no such entitlements arose as the claimant was fairly dismissed for gross misconduct and no holiday pay was owing.

[7]There was a small typographical error on the tribunal file. The respondent’s name was incorrectly recorded as Richard Turner t/a Aircare Compressor Service. The name of the respondent is amended to Richard Turner t/a Aircare Compressor Services.

The Hearing

[8]I heard the claim in Birmingham on the 29th September, 30th of September & 1st October 2025 and on 2nd February & 3rd February 2026. The parties attended via CVP.

[9]Following the case management order of EJ Broughton dated 9th September 2025, the hearing dealt with liability alone.

[10]The claimant was represented by Miss Amesu of counsel. The claimant gave evidence to the tribunal and called evidence from Ann Houlston, a colleague who worked for the respondent until 2nd May 2025, and Alistair Fowlie, a colleague who still works for the respondent.

[11]The respondent was represented by Mr Wright of counsel. The respondent called evidence from Sally-Ann Turner, director of Aircare Compressor Services (a limited company that has taken over the operation of the respondent) and Lisa Peat, the respondent’s brother-in-law. The respondent also tendered written witness statements from himself and from David Stubbs, a Detective Constable with Staffordshire Police. It was explained to the respondent that although I would read and consider DC Stubbs’ statement, it would carry less weight by reason of the fact that the witness was not present to give oral evidence.

[12]I considered documents from an agreed bundle running to 1,562 pages. An additional bundle of mitigation documents was provided shortly before the reconvened hearing in February 2026 and this was also considered insofar as the contents related to the issues to be determined at the substantive hearing. A further document including payroll information for the claimant and one of her colleagues and dated 24th January 2019 was provided to the tribunal on the 2nd February. Applications

[13]There were two outstanding applications before the tribunal that fell to be dealt with at the outset of the hearing. The first of these related to the respondent’s application dated 20th August 2025 for a privacy order pursuant to Rule 49 of the Employment Tribunal Procedure Rules 2024 in respect of DC Stubbs’ evidence.

[14]Mr Wright confirmed at the outset of the hearing that this application was no longer pursued.

[15]The second application was the claimant’s application dated 1st September 2025 that the respondent’s evidence be disallowed entirely on the basis that it could not be tested at the hearing and/or that the evidence be treated as hearsay and given no weight.

[16]In support of that application, Miss Amesu submitted that the burden of proof lay with the respondent to prove its case. Allowing the respondent’s evidence would be contrary to the overriding objective. The respondent would be able to cross-examine the claimant, but the claimant would not be able to crossexamine the respondent. The respondent is a key witness and the claimant would be unable to test his evidence. Although the claimant was sympathetic to the respondent’s medical condition, it had been open to the respondent to seek adjustments in order to allow him to be questioned on his evidence. This might have included the respondent providing written answers to written questions provided in advance of the hearing. However, no such adjustments had been explored by the respondent.

[17]Mr Wright submitted that the respondent was not well enough to attend the tribunal in order to give evidence. Pages 49 – 52 of the witness statement bundle (being attachments to the respondent’s written witness statement) provided evidence as to his medical condition. That condition has deteriorated. The respondent has begun receiving palliative care and needs to rest. He has a broken back, and fluid on his lungs. He suffers from breathlessness and mobility is an issue for him. The respondent is not going to get better. Mr Wright invited the tribunal to take his statement as read, but not to subject his evidence to any detriment.

[18]Having heard both parties’ submissions, I find that it is in accordance with the overriding objective that the respondent’s evidence in the form of his written witness statement to be considered by the tribunal. It would not be appropriate for me to disallow it, given the respondent’s medical condition and given also that it is not uncommon for tribunals to be asked to take witness statements as read. Furthermore, the respondent’s statement could not properly be considered hearsay. However, although the respondent’s reasons for not attending tribunal to give oral evidence are entirely understandable, the fact that his evidence cannot be tested in cross examination means that, although it will be admitted, the tribunal will only be able to give that evidence limited weight.

Issues

[19]I then had a discussion with the parties regarding the issues for me to decide. For completeness (and subject to paragraph 20, below), issues relating to remedy were identified, notwithstanding that the hearing dealt with liability alone. The issues were as follows: 1. Unfair dismissal1.1 What was the reason or principal reason for dismissal? The respondent says the reason was conduct. This is not disputed by the claimant. Specifically, did the claimant:1.1.1 breach the terms of her suspension by contacting the respondent’s accountants and her colleagues;

1.1.2 take unauthorised sums of money on top of her wages in the period 2018 to 2024. The amount allegedly taken is stated to be £27,115.20 in the letter of dismissal;

1.1.3 make unauthorised changes to her holiday record in 2024, resulting in potential overpayments of holiday pay to her; and

1.1.4 make unauthorised changes to her contract of employment.

1.2 The respondent also relies upon additional matters that arose during the employment relationship (but which were only discovered after the claimant’s dismissal) in the event that the claimant’s claim for unfair dismissal succeeds and the tribunal goes on to consider remedy. Specifically, the respondent alleges that the claimant;1.2.1 claimed fuel costs on a fuel card without authorisation; and

1.2.2 forged the respondent’s signature on business documents without authority.

1.3 When considering the fairness or otherwise of the claimant’s dismissal, the tribunal will decide whether the respondent acted reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant. The tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case and, in particular, whether:1.3.1 there were reasonable grounds for that belief;

1.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

1.3.3 the respondent otherwise acted in a procedurally fair manner; and

1.3.4 dismissal was within the range of reasonable responses.

1.4 The claimant claims that her dismissal was substantively unfair because:1.4.1 the information relied upon by the respondent to justify her dismissal was fundamentally flawed by reason of the fact that it failed to take into account the claimant’s increased working hours or her overtime;

1.4.2 the respondent failed to consider relevant mitigating factors, being her length of service, lack of previous disciplinary warnings and that the allegations made against the claimant were not matters under her sole control; and

1.4.3 as a consequence, dismissal for gross misconduct went beyond the range of reasonable responses.

1.5 The claimant claims that her dismissal was procedurally unfair because:1.5.1 the decision to dismiss was pre-ordained;

1.5.2 the respondent failed to arrange an investigation meeting at a time which would allow her reasonable opportunity to participate in the same;

1.5.3 the respondent failed to provide her with copies of the evidence held in relation to the alleged misconduct;

1.5.4 Mrs Turner did not have the necessary authority to conduct the investigation or to hold the investigation meeting;

1.5.5 the respondent failed to write to her in the terms as set out at paragraph 20.2 of the ET1;

1.5.6 the respondent failed to hold a disciplinary meeting as required by the ACAS Code or at all;

1.5.7 the respondent failed to provide the claimant with an appeal hearing;

1.5.8 the respondent failed to ensure that the decision to dismiss the claimant was taken by a manager with authority to do so; and

1.5.9 the respondent failed to notify, investigate or conduct a hearing into the allegation that the claimant sent emails to the respondent’s accountants as alleged at paragraph 20.6 of the ET1. 2. Remedy for unfair dismissal

2.1 The claimant seeks compensation only. If there is a compensatory award, how much should it be? The tribunal will decide:2.1.1 What financial losses has the dismissal caused the claimant?

2.1.2 Has the respondent proven that the claimant failed to take reasonable steps to replace their lost earnings, such as by failing to take reasonable steps to find another job?

2.1.3 For what period of loss should the claimant be compensated?

2.1.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

2.1.5 If so, should the claimant’s compensation be reduced? By how much?

2.1.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

2.1.7 Did the respondent or the claimant unreasonably fail to comply with it by failing to hold a disciplinary meeting and failing to offer an appeal?

2.1.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

2.1.9 If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?

2.1.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

2.1.11 Does the statutory cap apply?

2.2 What basic award is payable to the claimant, if any?

2.3 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? 3. Notice pay (wrongful dismissal)

3.1 What was the claimant’s notice period?

3.2 Was the claimant paid for that notice period? It is conceded by the respondent that she was not.

3.3 Was the claimant guilty of gross misconduct? 4. Unauthorised deductions from wages 4.1 Did the respondent make unauthorised deductions from the claimant’s wages in respect of 5 days holiday pay that would have accrued during the notice period?

[20]Although questions of ‘Polkey’ deductions and deductions for contributory fault are primarily issues of remedy, they were closely linked to issues of liability and, as such, it was appropriate to consider them at this hearing.

Findings of Fact

[21]My relevant findings of fact are as follows. The claimant’s role

[22]The claimant was employed by the respondent as accounts clerk (notwithstanding that she typically termed herself accounts manager, a title which I find the respondent did not object to) from the 1st January 1995 until her dismissal on the 25th October 2024.

[23]Neither party was sure as to the claimant’s start date with the respondent, but I note that a date of the 1st January 1995 is recorded in the ET1 and is not disputed by the respondent in the ET3. I therefore find that this was the start date of the claimant’s employment.

[24]The respondent’s business was a relatively small one, typically employing around eight employees. The employees comprised a mix of engineers and office staff.

[25]I find that the claimant had a wide-ranging set of duties. I accept that her regular duties are those as listed at paragraph 18 of her witness statement, but I find that the claimant also assisted the respondent with his other business ventures, notably in relation to assisting with the accounts for Adly UK, Condensate Systems (which later became Sterling Separations Limited) and Tamsan UK Limited. These businesses were separate businesses operated by the respondent, either as a sole trader or through incorporated bodies.

[26]It was common ground between the parties that although the claimant carried out some work for these other businesses, at all material times she remained employed by Aircare Compressor Services, a business operated at all material times by the respondent as a sole trader (‘ACS’).

[27]I find that the respondent had numerous business interests and that he relied heavily on the claimant to assist with the day-to-day operation of ACS. The claimant's evidence was that the respondent rarely attended ACS and that she effectively ran ACS for the respondent. I accept her evidence in this regard.

[28]I find that the consequence of the respondent’s reliance on the claimant was that the claimant was empowered to make many of the day-to-day decisions in relation to ACS that one might normally expect to have been taken by the respondent as the owner of ACS. The claimant gave consistent evidence to the effect that the respondent would have been surprised had the claimant contacted him to ask for direction and I find that the respondent, by his own choice, had limited oversight of the claimant’s work. The contract of employment

[29]The respondent did not have in place a staff handbook or a significant suite of employment policies and procedures, although Mrs Turner confirmed in evidence that she has now sought specialist HR advice in relation to the introduction of policies and procedures. Mrs Turner conceded that no such policies and procedures existed during the claimant’s employment.

[30]I find that the only written document that deals in any detail with the terms and conditions of the claimant’s employment is her contract of employment.

[31]The respondent’s evidence that was he was not aware that the claimant had a written contract of employment until 2024, when a copy was provided to him by David Evans, the respondent’s accountant. The respondent's evidence was that he did not authorise Mr Evans to prepare that contract and that he did not provide instructions as to what the terms of the contract should be. His evidence was that he had never signed the claimant’s contract.

[32]The claimant’s evidence was that she had no written contract prior to 2004. The claimant stated that, in 2004, the respondent attended an event with Mr Evans at which he acquired a template employment contract. She stated that Mr Evans had control of the template and that the template was completed by Mr Evans and his team. The claimant stated that she never read the contract at the time it was issued to her. She put it away and did not look at it again until the problems with the respondent started.

[33]Mr. Wright cross examined the claimant about the contract. The claimant accepted that the letter attaching hers and other contracts as sent by Louise Munro (an employee of Mr Evans) in 2004 was addressed to the claimant and also referenced a recent telephone conversation with her. The claimant stated that she had had contact with Ms Munro and that the claimant had sent employee details for inclusion in the contracts, being their names, addresses, salary and job titles but nothing else.

[34]Mr Wright also cross examined the claimant about the claimant’s place of work as set out in the contract. The contract stated that the claimant worked from home. Mr. Wright put to the claimant that this would be unusual for a contract prepared in 2004. The claimant was unsure whether that would be unusual but that she was more of a friend than an employee to the respondent. However, she accepted that, practically speaking, working from home would have been difficult in 2004.

[35]Notwithstanding that the claimant’s contract stated that she received an annual salary, the claimant agreed that she was, in reality, paid hourly. I find that the written contract was therefore incorrect in this regard.

[36]I find that, in 2004, the claimant was already taking significant responsibility for many aspects of the day-to-day running of ACS. I find that the decision to introduce written contracts was made by the respondent after the respondent and Mr Evans had attended a session away from the office and I also find that the contract used by the respondent was based on a template provided by his accountants.

[37]I find that the personalised information then included in the contracts was provided by the claimant to Mr Evans and his team. I do not accept that this information was limited only to names, addresses, salaries and job titles. I find that it would be unusual in 2004 for a contract to permit an individual employed in an accounts and administration role to work from home in circumstances where, as a claimant herself conceded, it would not be easy for her to work from home. I find that the provisions in relation to home working were conveyed to Louise Munro by the claimant and this explains their inclusion in the contract. I also find that details of the claimant’s salary were provided by the claimant to Ms Munro.

[38]Although I find it would have been unusual for someone in claimant’s position to have expected to have been working from home in 2004, I note that the respondent accepted in his witness statement that in or around 2023, during a dispute with the claimant about her working patterns during the COVID-19 pandemic, the claimant told the respondent that her place of work was at home. The respondent’s evidence was that he told the claimant that this was news to him, but I find that he accepted that position as at 2023. There is no evidence that he ever challenged the claimant’s assertions in this regard in 2023 or that he sought to amend the claimant’s contract or oblige her to work only from ACS’ premises in 2023. I therefore find that the respondent was aware by 2023 that the claimant believed that she was contractually entitled to work from home and that he was content for her to continue to do so at least until 23rd July 2024.

[39]The contract did not set out any detailed disciplinary rules applicable to the claimant’s employment, although clause 11 of the contract did particularise a number of examples of behaviour that would be considered to amount to gross misconduct.

[40]There was reference in clause 13 of the contract to a requirement that employees comply with policies that were adopted by the business and notified to the employee, but as it was, I have found that no such policies were ever adopted and notified to the claimant.

[41]Clause 12 of the contract gave the respondent a right to suspend employees pending investigations into allegations of misconduct. Clause 12 prohibited a suspended employee from entering ACS’ premises or contacting staff who may be witnesses in any investigation without the permission of the respondent. The clause stated that “Failure to obey any conditions attached to your suspension will be treated as a disciplinary matter in itself”.

[42]Clause 7 of the contract dealt with holidays. Sub clause 7.3 stated that employees must agree the dates and duration of their holidays with their manager in advance of taking any holiday.

[43]The contract stated that the claimant worked 30 hours per week (clause4.1 ) but that she might also be expected to work additional hours as deemed necessary by the respondent between Monday and Friday (clause

4.2 ).

[44]There was a letter in the bundle dated 16th December 2004 sent from the respondent’s accountant to the claimant. This letter attached five contracts of employment for five of the respondent’s then employees, together with a spare copy for the claimant’s records. I find that the claimant’s contract was one of the five contracts so supplied and that the document that was included from page 58 onwards of the bundle is that contract as issued to the claimant at that time.

[45]I find that there had been no earlier contracts covering the period from when the claimant started employment with the respondent in 1995 through to 2004.

[46]There was a further copy of the claimant’s contract from page 68 onwards of the bundle. This version had been signed by the claimant but had not been countersigned on behalf of the respondent.

[47]The respondent stated that he only became aware of the contents of the claimant's contract for the first time in early 2024. Mrs Turner also stated in her witness statement that the claimant told her that the respondent had not seen the contracts as he had been travelling to Bristol a lot at that time. I accept that the respondent had not seen the claimant’s contract when it was created in 2004 and that he had not had input into the contents of the contract.

[48]Although the respondent had not seen the claimant’s contract in 2004, I find that he had seen it by 22nd January 2024 at the latest, this being the date on which Mr Evans emailed the respondent an earlier email chain of 10th August 2023 to which copy contracts (including the claimant’s) were attached. The respondent was advised by Mr Evans to check the copy contracts that he held against the originals, so that any amendments could be identified and discussed and any “appropriate action” could be taken, “possibly with advice from an employment lawyer”.

[49]There was no evidence before me to suggest that the respondent had ever acted on Mr Evans’ suggestion. I find that the respondent had had ample opportunity from 22nd January 2024 to challenge the claimant about any of the provisions of her contract had he felt that they were incorrect. Save as set out below, he did not do so. As the respondent did not otherwise challenge the claimant or seek to correct or otherwise amend any of the terms and conditions as set out therein, I find that the respondent accepted that the claimant’s contract did indeed record the basis on which she worked for the respondent.

[50]Although the respondent did not object to the contents of the claimant's contract once he became aware of them, I find that he and Mrs Turner did give instruction for the claimant to cease working from home by email dated 23rd July 2024. This email was in the bundle and the instruction to cease home working is also referenced in a subsequent, undated email that was also in the bundle.

[51]In the original July e-mail, Mrs Turner expressed concerns about the office not being adequately manned. Mrs Turner stated in her witness statement that the claimant did increase her presence in the office throughout August 2024, although Mrs Turner believed this was so the claimant could monitor Mrs Turner's investigations into the claimant. The claimant's evidence was that, although she was not obliged to work from the office due to what her contract said, she agreed to come in earlier, despite her husband being unwell at the time. The claimant’s evidence was that Mrs Turner then changed her position and said that Mrs Turner could cover the office. I find that, whatever her motivations, the claimant was willing to do more work from the office over the summer of 2024, although, in the final analysis, she was not required to significantly change her working patterns.

[52]Mrs Turner's evidence was that she had attempted to locate the claimant’s contract of employment in August 2024 as part of her investigation into the claimant’s conduct. She stated that she had asked the claimant to provide her contract but the claimant had declined to do so. Mrs Turner stated that she looked for the contracts in the office but that all bar one contract (in respect of one of the claimant’s colleagues) were missing from the respondent’s files.

[53]The claimant accepted in evidence that the contracts were not where they should have been but did not accept removing them herself. In cross examination, Mrs Turner conceded that she had no idea who had removed the contracts. She did not specifically accuse the claimant of removing the contracts. I find that the contracts had been removed from the respondent’s premises and were not where they should have been. There was no evidence before me as to who had removed the contract. On the balance of probabilities, I do not find that it was the claimant who removed the contracts. Pay

[54]The claimant’s pay increased during her time with the respondent. Her contract stated that her annual salary in 2004 was £12,324.00. The respondent’s evidence was that he did not agree with this figure. However, by his own admission, he was not sure what the claimant’s salary should have been.

[55]The respondent’s evidence was that he had no formal procedure for reviewing pay. I accept the respondent’s evidence in this regard and find that pay rises were made at the respondent’s discretion. I further accept the respondent’s evidence that ACS was doing well until around 2015 and that staffing costs were not an issue for him.

[56]The respondent recalled paying the claimant an additional £1.00 an hour, although he could not recall when that pay rise was awarded to the claimant. The respondent also accepted in his witness statement that he was aware that the claimant was paid more than other employees and that this reflected the additional work the claimant was carrying out for the respondent’s other businesses. The respondent further accepted that he authorised other pay rises in the years that ACS was doing well, although he could not recall any particular figures that he authorised.

[57]Mrs Turner conceded in cross examination that she had no oversight over either pay or pay rises.

[58]The claimant’s evidence was that, to the best of her recollection, she received four pay rises in 2011, 2017, 2018 and 2024. Her evidence was that these pay rises were awarded by the respondent. Insofar as the first three of these pay rises are concerned, the claimant’s evidence was the only evidence before the tribunal. I accept the claimant’s evidence in this regard.

[59]As part of the investigation into the claimant in the summer of 2024, Mrs Turner and Miss Peat put together a schedule of the claimant’s wages for the period commencing 12th April 2018 through to the end of the claimant’s employment in October 2024 (the ‘Schedule’). I note that it was common ground between the parties that the claimant’s pay had increased on the 7th September 2023.

[60]The Schedule sets out three columns. The date of payment is set out in the first column. The second column lists the amounts showing as paid to the claimant on each date. The third column is Mrs Turner's estimate of the amount of the overpayment allegedly made to the claimant on each date.

[61]From the 12th April 2018 (the first date on the Schedule) through to the 2nd January 2020, the most commonly occurring amount paid to the claimant was £495 per week, although there are numerous instances of the claimant being paid more than that in any given week and a smaller number of occasions when she was paid less.

[62]From the 16th January 2020 through to the 16th April 2020, the most common amount paid to the claimant is £400 per week. From 23rd April 2020 through to 9th July 2020 the most common payment is £450 per week, rising to £470 per week from the 17th September 2019 until the 21st January 2021. Thereafter, the most commonly occurring payment rises to £490 per week until the 13th October 2022, when it rises to £500 per week. The final rise is dated 7th September 2023, when the most commonly occurring payment increases to £550 per week. The Schedule is endorsed with the comment “wage increase” on this date.

[63]In every case there are significant numbers of dates when the amount paid to the claimant is in excess of the most commonly occurring payment. In a smaller number of cases, the amount paid to the claimant was less than the most commonly occurring payment.

[64]No witness was able to explain why the amount paid to the claimant dropped from a base line of £495 per week to £400 per week for a three month period in January 2020. However, I note that the claimant did not seek to challenge the accuracy of the Schedule and I therefore find that the second column of the Schedule accurately records the amounts paid to the claimant in each given week.

[65]I find that the fourth and final pay rise that the claimant received during her employment with the respondent was awarded to the claimant following dissatisfaction about pay that arose amongst the respondent’s employees when the respondent took on a new employee, Sarah, at a higher rate of pay than that enjoyed by other employees. As a result of this issue, I find that it was agreed by all parties that the claimant’s pay would be increased from September 2023. In an e-mail to both the respondent and Mrs Turner of the 2nd August 2024, the claimant confirmed that her rate of pay was £550 plus overtime, although she commented that she very rarely paid herself for the additional work that she claimed to do above and beyond her contractual duties.

[66]Prior to awarding this pay rise in September 2023, the respondent had spoken to Mr. Evans and asked for salary details for the respondent’s employees. These were provided by email on the 3rd August 2023. This information showed that the claimant was paid £500 per week at that time and that she worked part time. Three other employees were also shown as working part time. I therefore find that, as at the 3rd August 2023, the respondent was aware that the claimant was paid £500 per week and that she worked part time. I also note that the respondent accepted in his witness statement that the claimant's contract was likely correct as regards the hours she was contracted to work, being 30 hours a week as at 2004. Holiday

[67]The ACS holiday year began on the 1st January each year.

[68]Insofar as arrangements for taking holiday were concerned, Miss Peat's evidence was that the respondent was not good with administration and paperwork and there was no holiday booking request system. I accept her evidence in this regard and find that there was no formal system for employees to request and book holiday.

[69]Notwithstanding the lack of such a system, the claimant and Mrs Houlston both stated that there were pro forma holiday sheets that were kept in a filing cabinet in the office. These were maintained by the office staff. There were also some typed notes in the bundle that had been prepared as an aide memoire in order to help Sarah with her tasks. These notes also confirm the existence of holiday sheets for each employee. I find that the holiday sheets stood as a record of the holidays that had been taken by ACS employees.

[70]The respondent’s evidence was that, following the claimant’s dismissal, no holiday sheets had been found for her, despite an exhaustive search. The claimant’s evidence was that she had maintained her holiday sheets. Mrs Houston’s evidence was that both she and the claimant were responsible for maintaining their own holiday sheets as was their colleague, Janet, who worked briefly in ACS between 2023 and 2024. Mrs Houlston stated in cross examination that, following the claimant’s dismissal and about a week prior to Mrs Houlston leaving the respondent’s employment, Mrs Turner had asked her for the key to the filing cabinet. She then watched Mrs Turner remove employee records from the cabinet and put them in a different cabinet to which she had the key. However, in response to a question from the tribunal, Mrs Houlston said that she had never seen the claimant’s holiday sheets.

[71]The claimant was in a privileged position within ACS, given the significant delegated authority that she exercised on behalf of the respondent. I find that the claimant did not consider that she needed to complete holiday sheets during her employment with the respondent and that she did not do so.

[72]Although there was no formal policy in place that regulated the booking of holiday leave, I find that a system had emerged which made use of an employee holiday chart. The chart was a large yearly wall planner. Employees would put stickers on the chart to show when they intended to be off. There were different stickers for each employee. The claimant used orange triangles.

[73]I find that it was largely left to the respondent’s employees as a group to regulate the taking of holiday. I find that the sole consideration relevant to the grant of any request for holiday was whether there would be sufficient resources to cover the respondent’s work if the request was granted.

[74]In cross examination, Miss Peat stated that only the respondent and Mrs Turner had authority to make changes to the holiday chart. Miss Peat believed this to be the case on the basis of what the respondent and Mrs Turner had told her. Miss Peat stated that the respondent had notified employees in 2023 that Mrs Turner was now the primary person to go to in relation to holidays, although she conceded that she did not know whether the respondent had ever notified employees that only he and Mrs Turner had authority to change the chart. She was also unable to comment on whether any concerns over unauthorised changes to the holiday chart were ever communicated to the claimant.

[75]The claimant’s evidence, which was supported by Mrs Houlston and to a lesser extent by Mr Fowlie, was that the holiday chart was not an accurate record. On occasions, stickers might be removed if the board was becoming too cluttered with stickers. Stickers might also be removed if holiday plans changed. In addition, Mrs Houlston stated that the claimant would deliberately put orange triangles on certain days so as to prevent another colleague, Jane, from seeking to take those times as holiday, even though the claimant did not intend to be off on those days.

[76]There were three photographs of the holiday chart in the bundle taken by Mrs Turner during her investigation. The earliest in time was dated 27th August 2024 and featured a total of 27 orange triangles spread across various dates from January to September inclusive (including a single line blocking out five days from 15th to 19th July inclusive). According to the chart, a total of 27 days’ holiday had been booked by the claimant. The claimant did not in her evidence identify any of these dates as being dates that she had deliberately blocked in order to prevent Jane from also booking those days.

[77]The second photograph showed the chart as at 29th August 2024. Nine orange triangles (for the 10th-12th March inclusive, 20th-24th May inclusive and 14th June) had been removed. The five triangles covering 15th-19th July inclusive had also been removed, but five new days were now recorded between the 16th-20th September inclusive. Again, the claimant did not in her evidence identify any of these dates as being dates that she had deliberately blocked in order to prevent Jane from also booking those days.

[78]The third photograph showed the chart as at 27th September 2024. There were 23 orange triangles, being all of those recorded as at 29th August, plus five additional days for October 2024, by which point the claimant was on sick leave.

[79]Mr Wright cross examined the claimant at length on the discrepancies between the chart as it was at the 27th August and the chart as it was on the 29th August. He put it to the claimant that she had removed orange stickers in order to hide the fact that she had taken and been paid for more holiday than she was entitled to.

[80]The claimant’s evidence was that she was unable to answer specific questions about any particular date without sight of her holiday sheets. However, she repeatedly stated that she never took anything that she wasn’t entitled to.

[81]The claimant did concede that she was on holiday on the 23rd July 2024, which date I note was not marked with an orange triangle on either of the photographs of the 27th or the 29th August.

[82]Mr. Wright also put to the claimant that she had been on holiday in Wales between the 2nd and 6th September 2024. There were no orange triangles for this week on either photograph. There was an e-mail in the bundle that I find demonstrated that the claimant was indeed in Wales by 0845 on the 7th September, but I note that this was a Saturday and therefore a non-working day. The claimant accepted that she had been in Wales that Saturday but that she could not remember whether she had been on holiday the previous week too.

[83]The claimant’s evidence was that she had moved her holiday and that she was concerned that she was being accused of taking a holiday that had been moved. She made this point repeatedly in answer to questions and I find that the claimant intended to be off between the 2nd and 6th September but that she moved that holiday to the 16th to the 20th September 2024 as recorded on the second photograph. On the balance of probabilities, I therefore find that the claimant was not on holiday between the 2nd and the 6th of September.

[84]Mr. Wright also put to the claimant that she was on holiday for the week of the 20th May 2024. This week was marked with orange triangles on the first photograph, but these had been removed by the time of the second photograph of the 29th August. An e-mail sent to the claimant by Sasha at Mr Evans’ practice included a comment wishing the claimant a good start to the week in her “tin villa”. The claimant confirmed that “tin villa” was a reference to her caravan. She conceded that she was quite possibly on holiday that week and I find that she was.

[85]The claimant was also due to be on holiday for the week of the 10th June. One sticker for Friday the 14th June had been removed by the time of the second photograph on the 29th August. The claimant denied that she had been on leave on that date and reiterated that the holiday chart was not accurate and she needed a holiday sheet in front of her before she could answer any questions about that day. She also reiterated that employees were in the habit of taking stickers off the holiday chart to make it look less messy.

[86]It is difficult to see why removing one sticker on the 14th June - a day when no one else appeared to be off work - made the chart any easier to follow. Indeed, it appeared to the tribunal that there was plenty of space on holiday chart for holidays of more than one employee to be marked on any given day. The chart was large and the stickers were easily visible.

[87]There was also an e-mail in the bundle sent by the claimant to two employees at Mr Evan’s practice the previous week stating that the claimant was in Wales that next week. On the balance of probabilities, I find that the claimant was indeed on holiday for the entirety of the week of the 10th June 2024.

[88]Towards the end of Mr Wright’s cross examination of the claimant on the holiday issue, the claimant stated she now recalled that she would have carried some untaken holiday over into 2024 from previous years, and that her then colleague, Maxine Shirley, would notify her at the start of a year how much untaken holiday the claimant had to carry over. I note that this explanation had not previously been pleaded and there was no supporting evidence in the bundle to suggest that Ms Shirley ever did contact the claimant at the start of the year to notify her of any holiday carried over. I also note that clause 7.2 of the claimant’s contract expressly stated that the claimant was not entitled to carry forward holiday.

[89]Although I find that the way things worked in practice was not necessarily aligned with what was written in the contract, I do not accept the claimant’s evidence in this regard and do not find that the claimant had any carried over any holiday into 2024.

[90]The claimant was permitted to take 21 days holiday (in addition to bank holidays) each year. I find that the bank holidays were not required to be recorded on the holiday chart and, indeed, they were not so recorded. The claimant therefore only had a ‘free choice’ of 21 days’ holiday per year. There was no evidence of any policy allowing bank holidays to be commuted to ‘free choice’ days. There was also no documentary evidence to support the claimant’s contention that she worked on bank holidays.

[91]The claimant recorded 18 days holiday for 2024, not including the five days that she was due to take in October but which I find she could not take by reason of the fact that, by that time, she was on sick leave. Although there was no evidence before the tribunal as to whether the claimant had or had not been on holiday between the 10th and 12th March 2024, I have found that she was on holiday for the week of the 20th May and also on the 14th June and the 23rd July, being seven days in total that were not recorded on the second photograph of the chart taken on 29th August.

[92]Although the claimant’s evidence (supported by Mrs Houlston) was that the claimant would on occasion block out holiday to prevent her colleague, Jane, from taking those days, it was not stated by the claimant that any of the days that remained marked with orange triangles on the second photograph of the holiday chart dated 29th August had been used as ‘blocker’ days rather than representing actual holiday taken by the claimant.

[93]I therefore find that all of the 18 days marked with orange triangles on the second photograph of the chart represented days that the claimant took as paid holiday leave.

[94]The claimant did not at any time suggest that anyone else had manipulated the holiday chart by removing orange triangles between the 27th August and the 29th August. Instead, are evidence was focused on justifying the discrepancies between the two photographs that Mr Wright identified. I find that it was the claimant who had removed orange triangles from the chart at some point between the 27th and 29th August.

[95]As the claimant took an additional seven days’ holiday over and above the 18 days recorded on the chart, I therefore find that the claimant had taken 25 days’ holiday in total, being four days in excess of her of ‘free choice’ entitlement to 21 days’ holiday for the holiday year 2024.

[96]I find that the claimant's actions in removing orange triangles were deliberate and her intention was to make it look as though she had taken less paid holiday than she actually had taken. By August 2024, Mrs Turner was taking a much greater role in ACS and I find that the claimant's actions were primarily intended to mislead Mrs Turner as to the true position as regards the claimant’s holiday leave for that year.

[97]The claimant's evidence was that it was standard practice in ACS for employees to receive payments in lieu of holiday if they did not have time to take their leave. Mr Fowlie’s evidence was that the respondent had previously allowed employees to take payments in lieu of notice for holiday, although this changed towards the end of 2024 when Mrs Turner notified employees that they could no longer carry holiday over.

[98]Clause 7.2 of the claimant’s contract expressly stated that the claimant was not entitled to take payments in lieu of untaken holiday.

[99]Although the oral witness evidence was at odds with the evidence of the contract, I find that the oral witness evidence accurately captures the respondent’s approach to the taking of holiday leave and that, until late 2024, the respondent had permitted employees to take payments in lieu of holiday if they wished to do so.

[100]In addition to taking paid holiday leave over the course of 2024, the claimant’s handwritten endorsements to her bank statements showed that she had paid herself a further three days’ holiday pay in lieu for the period commencing 30th January 2024.

[101]I have added this additional three days’ pay in lieu of holiday to the 25 days’ holiday leave that I find the claimant took over the course of 2024.

[102]In total, I therefore find that the claimant was paid for 28 days’ holiday in 2024, being seven days in excess of her entitlement for the entirety of the 2024 holiday year.

[103]Had the claimant not been dismissed in October 2024, I find that she would have taken an additional five days’ holiday in October, as recorded on the photograph of the 29th August, further increasing the amount of paid holiday that she took over and above her entitlement.

[104]Although the claimant repeated that she never took anything to which she was not entitled, inn light of my findings as set out above, I find that she did instruct ACS’ accountants to pay her for more holiday than she was entitled to receive in respect of the holiday year commencing 1st January 2024. Overtime and additional payments

[105]Employees working in the respondent’s business were in the habit of completing weekly timesheets. These timesheets would record i) the employee’s name, ii) the period to which the timesheet related, iii) the hours worked each day of that week, iv) the total hours worked in that week and v) any overtime worked that week.

[106]The claimant would gather the timesheets each week and send the data through to Mr Evans’ firm, who handled payroll for ACS.

[107]Whereas the claimant took the relevant information for other employees from their timesheets, the claimant’s own wage information was simply dropped in to the e-mail that she sent to Mr Evans’ team.

[108]In response to a question from the tribunal, the claimant stated that she needed to know what hours other employees had worked so that she could give the right information to the accountants, but as she was the person providing the payroll information and she knew what hours she had worked, it was not necessary for her to fill out timesheets herself, notwithstanding that other employees were expected to do so.

[109]I therefore find that the claimant did not herself complete timesheets. I also find that there were no underlying written records to support the hours that the claimant did or did not work in any given week.

[110]However, I find that there was no formal policy or instruction in place as regards the completion of timesheets and that, as with the use of the holiday chart, the timesheet procedure had effectively evolved over time. As such, I find that no instruction was ever given by the respondent to the claimant to complete timesheets.

[111]The arrangements for overtime were flexible. Overtime was permitted by operation of clause 8.3 of the claimant’s contract, although there was no formal overtime policy setting out the circumstances under which overtime would be worked.

[112]In response to a question from the tribunal, the claimant stated that she considered that she became entitled to overtime after she had worked 40 hours in any given week.

[113]I find that the accountants did not challenge any payroll information provided by the claimant and simply processed pay in accordance with her instructions.

[114]Other than in relation to the claimant’s fourth and final pay rise, I find that there is very little correlation between the pay rises that the claimant stated she received and the pay records shown on the Schedule. The pay rises for 2011 and 2017 would not be shown on the Schedule as the first date on the Schedule is April 2018. On the claimant's evidence, there should have been at most one pay rise between that date and the date in September 2023 when the fourth pay rise was awarded. In reality, the claimant’s pay fluctuated between April 2018 and the claimant’s dismissal in October 2024, with one occasion when the average wage paid to the claimant decreased and four occasions when it increased (as set out in more detail above).

[115]The claimant’s redacted bank statements were in the bundle. Whilst it is difficult to make exact correlations between the statements and the Schedule (as the Schedule is based on gross pay and the bank statements show net pay), I note that the claimant endorsed her bank statements with handwritten comments to explain payments to her that were unusual. These included expenses and occasions when she had paid herself in lieu of holiday. The comments also sought to explain payments of overtime, such as on her bank statement for the 1st February 2022. In that month, the claimant’s net pay was £815.80 and her bank statement is endorsed with a handwritten comment “worked all over Christmas”.

[116]There are other references to payments of overtime endorsed on the claimant’s bank statements. I find that the claimant regularly added additional sums to her pay that were not separately recorded as overtime and that the amounts shown on the Schedule are a consequence of the 2023 pay rise (and perhaps also the 2018 pay rise, although there was no evidence as to when that pay rise was awarded), but also of the claimant paying herself very regular amounts of overtime from 2018 to 2024 inclusive.

[117]Mr. Wright cross examined the claimant at length on number of the payments that the claimant had made to herself from 2018 through to 2024. Twenty four such payments were considered by Mr. Wright to be especially large and these were referenced in his skeleton argument.

[118]When challenged in cross examination, it became apparent that the handwritten endorsements made by the claimant to her bank statements had been made as part of preparation for these proceedings. The claimant conceded that these comments were effectively guesses and that she could not answer Mr Wright's questions about individual payments without sight of two pieces of information. The first was copies of the weekly emails that the claimant would send to the accountants setting out pay details for the claimant and her colleagues. The second was the respondent’s cash books.

[119]There were a number of the weekly emails between the claimant and the respondent’s accountant in the bundle. The claimant was taken to an email dated 24th November 2023 in which she had notified the accountants that her pay for that week was to be £750.00. Overtime paid to two other employees was shown separately on these emails but was not shown separately in respect of the claimant. The claimant conceded that this email did not show any breakdown as between her normal pay and any overtime. In respect of that email, the evidence did not therefore support the claimant’s case that details of overtime that she had worked was notified to the accountants.

[120]The cash books were not in the bundle at all. In light of the claimant's evidence, the tribunal considered that these documents were potentially relevant. Both parties confirmed to the tribunal that cash books for a four-year period commencing in 2021 and ending in 2024 had been disclosed by the respondent to the claimant as part of the disclosure process in these proceedings. The cash books had not, however, been included in the bundle. Miss Amesu made no application to introduce the cash books (or parts of them) as additional evidence over the course of the tribunal hearing.

[121]The claimant's position was that she worked significant overtime at weekends, in her evenings and during her holidays. She stated that she did not feel that the respondent could have afforded to pay her overtime for all of the overtime she worked, so rather than making full claims for overtime, the claimant instead paid herself nominal amounts of overtime in recognition of the additional work she had done. She stated that these nominal amounts would typically be of the order of £10 or £20. The claimant had not sought the respondent’s authority before making individual payments of overtime to herself, although I accept the claimant’s evidence that the respondent would contact her when he knew she was away from work. Accordingly, I find that in broad terms the respondent was aware that the claimant was carrying out at least some work outside normal working hours.

[122]The claimant became evasive when answering questions about the overpayments and I found her evidence to be unsatisfactory in this regard. She resiled from the handwritten comments made in her bank statement, stating that these were guesses, and stated that she was unable to answer further questions without having sight of emails and cash books that were either not in the bundle, or which were in the bundle (at least in part) but did not support the claimant’s position.

[123]The claimant stated at paragraph 14 of her witness statement that she could not possibly calculate the amount of overtime that she worked. This was at odds with the evidence she gave to the tribunal, which was that the information was available via the emails and the cash books.

[124]I am satisfied that there were no written records confirming the claimant’s overtime and that the claimant simply decided what she should be paid in any given week without recourse to the respondent.

[125]The claimant stated in her ET1 form that the only payments she made to herself were either in respect of salary that had been agreed with the respondent or for the reimbursement of business expenses that the claimant was obliged to incur on the respondent’s behalf. The claimant also stated in her ET1 that accounts and wages were authorised by the respondent and were not matters that were under the claimant's sole control. I accept that evidence.

[126]However, in reality, I find that the claimant sought to exercise sole control over such matters, at least insofar as her own pay was concerned. Although I accept that the claimant had significant delegated authority to run the affairs of ACS, on her own evidence her authority did not extend so far as determining her own pay each week without recourse to the respondent. As stated in her ET1, her salary had to be agreed with the respondent. However at least as far as the overtime payments were concerned, I find that it was not. Neither were such payments authorised by the respondent, given that the respondent did not know about those payments.

[127]The claimant was unable to explain the frequent and significant discrepancies in her pay. I am satisfied on the evidence that was before me that the claimant received sums which were not evidenced, which represented payments to her over and above her contractual wage, which were not known about or authorised by the respondent and which she was therefore not entitled to receive. Mrs Turner’s role

[128]After May 2022, Mrs Turner sought to take a greater role in the management of ACS. This was due to the respondent’s deteriorating health and his poor prognosis.

[129]Mrs Turner’s evidence was that she found it difficult to work with the claimant and that, following the respondent’s admission to hospital in June 2023, she took a step back from the business in order to focus on her caring responsibilities. Mrs Turner's evidence was that she felt the claimant did not treat her with respect and that the claimant made working life difficult for Mrs Turner. I accept Mrs Turner’s evidence in this regard. There was evidence in the bundle that demonstrated that the claimant had openly expressed negative views about Mrs Turner, including at one point during the investigative process referring her as someone who had only ever been employed by the respondent as a cleaner.

[130]I find that the claimant knew very well that Mrs Turner was the respondent’s wife and that such comments were deliberately intended to belittle Mrs Turner. I find that the claimant was unwilling to work with Mrs Turner and, indeed, felt that she did not need to do so and that she could continue to run ACS, despite the respondent’s illness. I find that the claimant resented Mrs Turner's attempts to become more involved in the operation of ACS from July 2024 onward.

[131]In or about the summer of 2024, the tenant of the units neighbouring ACS asked Mrs Turner whether ACS was closing, as the unit frequently appeared deserted. As a result of this comment, I find that Mrs Turner felt that there needed to be a greater presence on site and that she took the decision to once again become more involved with ACS. The investigation

[132]Following her return to ACS, Mrs Turner’s evidence was that she noted that significant amounts of sensitive business documentation was stored in another office. This information included banking and pay information. Mrs Turner said that the claimant instructed her to shred these documents, but that she declined to do so because she considered them to be important. Instead, Mrs Turner took this information home and began to examine it.

[133]Mrs Turner became concerned about what might have been happening in ACS in her husband’s absence, especially given her own earlier difficulties in obtaining information and support from the claimant. I find that this is why she decided to commence a disciplinary investigation into the claimants’ activities. This investigation was focused principally on i) sums that the claimant had been paid from the respondent’s bank account and ii) on the claimant’s actions in relation to preparing contracts of employment and maintaining company records.

[134]The claimant expressed concerns about Mrs Turner's involvement in the investigation and questioned whether Mrs Turner had authority to carry out the investigation or to take action on behalf of the respondent. There was no formal letter of appointment (or other document confirming Mrs Turner’s role) within the bundle, but given the respondent’s general attitude towards employment documentation, I find it would have been unusual if there has been such a document. Ultimately, Mrs Turner was the respondent's wife. I find that it is entirely understandable that she would wish to protect the respondent and his businesses and I find that she was in a position to make decisions about the respondent’s business given that the respondent was unable to make those decisions because of his illness. Accordingly, I find that Mrs Turner had authority to progress her concerns.

[135]The claimant felt that Mrs Turner did not have sufficient knowledge of the way that ACS worked in order to be able to carry out a proper investigation into the disciplinary allegations. The claimant's evidence was that the investigation should have been outsourced to staff at Mr Evans’ practice, who understood ACS. I do not accept this. Mrs Turner may not have had an in-depth knowledge of how ACS had been managed, but one of the purposes of a disciplinary investigation is for the investigating officer to acquire such knowledge as is relevant in order to be able to evaluate the disciplinary allegations and to decide what (if any) steps needed to be taken.

[136]In addition, as the respondent’s wife, I find that Mrs Turner was an appropriate person to carry out the investigation. ACS was a small business and, aside from the respondent himself (who was unable to handle matters personally to any great degree due to his illness) I find that there was no other senior person within ACS who could have carried out the investigation. Indeed, there was no one in the management structure of ACS between the claimant and the

[137]Mrs Turner sought the assistance of her sister, Miss Peat, in relation to the investigation. I find that she did this because Miss Peat had some experience of managing disciplinary and grievance procedures by reason of her management role with Tesco and by reason of her work as an organising officer for the trade union USDAW. I also find that Miss Peat had appropriate delegated authority from the respondent to assist with the investigation.

[138]As Miss Peat was more familiar with handling employment disputes than Mrs Turner, I find it reasonable that the respondent as a small employer should seek some assistance for his wife when handling a disciplinary matter. It was appropriate for the respondent to involve Miss Peat in the process and to give her authority to look into the allegations that the claimant faced.

[139]The respondent, Mrs Turner and Miss Peat all had at least some involvement in the investigation and subsequent decision-making process. I find that the respondent, due to his ill health, took a lesser role in the investigation. I find that his role in the investigation was limited to answering questions put to him by Mrs Turner and Miss Peat. I note that, throughout her witness statement, Mrs Turner refers to “we” when talking about the investigation and that Miss Peat uses similar language in her own witness statement. I therefore find that the investigation was a joint effort between Mrs Turner and Miss Peat.

[140]Both Mrs Turner and Miss Peat gave evidence that they were looking for factors that pointed away from the claimant’s guilt as well as looking at matters that potentially implicated the claimant in the allegations that they were investigating. Miss Peat stated in her witness statement that she was also mindful that there could be a valid reason to explain the discrepancies with pay, holiday and contract documentation.

[141]As a result of the investigation, the claimant faced three allegations.

[142]The first allegation related to the claimant taking unauthorised and random sums of money on top of her wages. I find that Mrs Turner and Miss Peat drew together a significant pack of information in order to satisfy themselves what the claimant had been paid each week from April 2018 until the investigation. I further find that this information was accurately reduced to the Schedule.

[143]I find, though, that there was a fundamental issue that Mrs Turner and Miss Peat faced, namely that they had before them little or no evidence as to what the claimant’s wage should have been in any given week from 2018 onwards. In most weeks, the claimant took a regular amount of money from the respondent. However, in some weeks the claimant took a different amount to what one might term her regular payment - sometimes less but more often more.

[144]I find that the investigation into overpayments was posited on two key foundations. Firstly, that an explanation was required in respect all those weeks when the payment received by the claimant was in excess of what she would typically receive by way of wages at that time. Secondly, that at all material times from 2018 onwards, the claimant was overpaying herself and that her basic weekly wage should have been lower than the amounts she was actually paid.

[145]Insofar as the first of these foundations is concerned, I find that it was reasonable for Mrs Turner and Miss Peat to want to understand why the amounts paid to the claimant from week to week changed.

[146]Insofar as the second of these foundations is concerned, there were significant evidential issues. Mrs Turner was cross examined on the question of what the claimant’s wage should have been at any given point in time and I find that neither she nor the respondent had a clear understanding of what the claimant was entitled to be paid, when she had received pay rises or how much those pay rises were. There was a general acceptance that pay rises had been awarded, but none of the respondent’s witnesses had a clear handle on the factual details of what the claimant should have been paid at any given time. Mrs Turner further conceded that she had no involvement in pay or the giving of pay rises at all, such decisions being left to the respondent.

[147]Even as at the time of the hearing, Mrs Tuner conceded that she did not know how much the claimant had allegedly overpaid herself. I find that the best that Mrs Turner and Miss Peat felt they could do was form a view as to what they felt that the claimant should have been paid (having regard to her duties and hours of work) and then compare that to what the claimant was paid.

[148]Mrs Turner and Miss Peat’s calculations as to the amount of the alleged overpayments made to the claimant was set out on the third column of the Schedule. For each week, I find that Mrs Turner arbitrarily set a base wage that she felt was appropriate for the claimant to have been paid and then simply recorded in the third column of the Schedule the amount by which the claimant’s actual pay in any given week exceeded that estimated base wage. For example, after the claimant’s basic pay had increased to £550 per week in September 2023, Mrs Turner and Miss Peat recorded on their spreadsheet an overpayment of £85.00 for every week in which the claimant received exactly £550. Mrs Turner’s evidence was that she felt that £465 would represent a more reasonable weekly salary. As such, the claimant was paid £85 more than Mrs Turner felt she should have been paid and this £85 was duly recorded on the Schedule as an overpayment.

[149]Where the claimant was paid more than £550 in any given week, the level of the overpayment recorded at column three of the Schedule was the actual amount paid to the claimant less £465.

[150]Although I accept that Mrs Turner believed that the claimant was paid too much, I find that the evidence does not support her contention that the difference between what the claimant was paid and what Mrs Turner thought she should have been paid amounts to the claimant improperly paying herself more than she was contractually entitled to receive. In the absence of any evidence confirming what pay the claimant should have received at any given time from 2018 onwards, Mrs Turner's approach to the wage information that she had collated is not evidence of impropriety on the part of the claimant. It merely showed that there was a disparity between what the claimant was being paid and what Mrs Turner believed that the claimant should have been paid. That is very different from financial impropriety.

[151]In addition, the evidence before the tribunal, in the form of the 2023 e-mail from the respondent’s accountants confirming that the claimant was paid £500 per week and worked part time had not been challenged by the respondent. I find that the respondent accepted that this was the correct wage for the claimant at that time. The subsequent pay rise to £550 per week had also been agreed. The suspension

[152]Mrs Turner, Miss Peat and the respondent discussed the results of the investigation and, on the 7th October 2024, also asked advice from Mr. Evans. That advice was provided in an e-mail that was included in the bundle.

[153]On the same day, Mrs Turner messaged the claimant and asked her to come over to the Sterling office. There was no indication in that message as to what Mrs Turner wanted to discuss with the claimant. The claimant did as had been requested of her. She was invited into a room with Mrs Turner and Mr. John Gillen, an employee of Sterling. The claimant was notified that there was an ongoing investigation into i) unauthorised payments made to the claimant over and above the sums due to her by way of wages, ii) the claimant changing her the contract without authorisation and iii) the claimant falsifying company records for personal gain. Handwritten notes of this meeting were in the bundle.

[154]The claimant was suspended by Mrs Turner at this meeting and was also handed a pre-prepared letter inviting her to attend what was termed an investigation meeting. That meeting was to take place on the 10th October. Mrs Turner's evidence was that, although she had written the letter, its contents were directed by the respondent, who was unable to type letter himself as he had a broken arm. I note that the letter refers to Mrs Turner's name in the third person and I find that this letter was indeed written at the instruction of the

[155]The claimant was notified in the letter that Mrs Turner would chair the investigation meeting. The letter reiterated the three allegations that the claimant faced and also set out the terms of her suspension. Specifically, the claimant was instructed that “During the investigation, no communication regarding this suspension or its contents will be made with any other of my employees or business associates. Failure to comply will result in the investigation ceasing and your instant dismissal!” The claimant was also notified that if she failed to attend the investigation meeting, it would go ahead in her absence.

[156]The claimant’s contract of employment contained provisions relating to suspension at clause 12. During a period of suspension, the claimant was not permitted to enter ACS’ premises or “…contact staff who may be witnesses in any investigation without the permission of Air Care Compressor Services. Failure to obey any conditions attached to your suspension will be treated as a disciplinary matter in itself.”

[157]The claimant subsequently contacted two of Mr. Evans’ employees (Cheryl Jones and Nicky Hancox) by email dated 11th October 2024. She contacted Ms Jones again by emails dated 12th October 2024 and 15th October 2024.

[158]I find that the claimant's e-mail of 11th October had a number of purposes. Firstly, it was intended to set out in brief the claimant’s position on when her contract had been issued to her and in what circumstances. Secondly, it was intended to notify the accountants of the claimant’s pay arrangements during her period of suspension. Finally, the claimant arranged for her sick note to be passed to Ms Jones by Mrs Houlston.

[159]In the email of the 12th October, the claimant stated that her payslips were sent to her personal email address and that she needed to check and keep her wage slips. No specific requests were made of Ms Jones in that e-mail and the claimant specified that the e-mail was not intended to be either private or confidential.

[160]The e-mail of the 15th October was also copied to the respondent. The e-mail summarised the claimant's dissatisfaction with the respondent’s investigative process to date and asked Ms Jones to refrain from asking the claimant's work colleagues and friends to distance themselves from her.

[161]In a further email to the respondent dated 29th October, the claimant also made reference to her and Mrs Houlston looking at issues round the duty of care in the workplace.

[162]In cross-examination the claimant stated that Mrs Houlston had contacted her. She accepted being in contact with her during her suspension and further accepted having contact with Ms Jones and Ms Hancox during her suspension, which contact she stated she believed was necessary because she felt they needed to know what had been happening.

[163]The respondent considered that this contact breached the terms of the claimant’s suspension.

[164]Miss Amesu cross examined Mrs Turner at length on this point and put it to Mrs Turner that the terms of suspension as set out in the letter of suspension were at odds with the terms of suspension as set out in the claimant’s contract of employment. On the face of it, I find that they were. Clause 12 of the claimant’s contract specifically forbade her from contacting staff who might be witnesses, unless the claimant first had permission. I find that a natural reading of this clause meant that the claimant was prevented from speaking to colleagues (“staff”) who also worked for the respondent, but not to individuals who might work for other people.

[165]However, clause 12 goes on to talk about failure to obey conditions attached to a suspension. I find that the clause operated so as to permit the respondent to place additional restrictions on suspended employees.

[166]I find, however, that the terms of the suspension as set out in the letter of suspension were unclear. In particular, it was not clear what was meant by the term “business associate”. In response to a question from the tribunal the claimant stated that it had come as a complete shock to her that Mr Evans’ employees were considered by the respondent to be his business associates. By contrast, Mrs Turner’s evidence was that she considered that employees of the respondent’s accountant would be regarded as business associates of the

[167]I accept the claimant’s evidence and find that the claimant did not knowingly breach the terms of her suspension by contacting Ms Jones and Ms Hancox. However, I find that the terms of suspension also extended to employees and that the claimant did breach the terms of suspension by having contact with Mrs Houlston during her suspension.

[168]The suspension letter did not give any details as to the date to which each of the allegations related. Miss Amesu cross examined Mrs Turner on this point. Mrs Turner's evidence was that dates would have been provided at the investigation meeting. Miss Amesu also questioned Mrs Turner as to why the supporting evidence in relation to the allegations had not been provided to the claimant at the time she was given the suspension letter on the 7th October. Mrs Turner's response was that she was unsure about whether she should have provided that information, given the seriousness of the allegations and given that she suspected that the evidence might be needed by the police, the issues having also been reported to the police by that time.

[169]I find that, as at the 7th October, the claimant only had the broadest details about the allegations that she faced. I find that it would not have been easy for her to have prepared for the upcoming investigation meeting. Investigation meeting

[170]The claimant attended the investigation meeting. The meeting was attended on behalf of the respondent by Mrs Turner and Mr Gillen.

[171]The claimant's evidence was that she attended the meeting, but only for the purposes of handing in a fit note that she had been given by her doctor. The claimant stated that she was so stressed and shocked that she did not feel mentally able to contribute to the meeting. As such, the meeting needed to be rearranged.

[172]It was common ground between the claimant and Mrs Turner that there was at least some discussion about the disciplinary allegations at that meeting, notably in relation to the suggestion that the claimant had written her own contract without authority. I find that emotions were raised during the meeting and that on two occasions, Mr Gillen asked the claimant to slow down as he was finding it difficult to take notes of what she was saying. I also find that at one point, the claimant challenged Mrs Turner and asked if Mrs Turner was accusing her of being a thief. The claimant then produced her fit note and left the meeting.

[173]Mrs Turner had prepared a list of questions for the meeting, but for the most part these questions were not put to the claimant as there was no opportunity for that to happen. I therefore find that, by the end of the meeting on the 10th October, the claimant was still unsure as to the precise allegations she was facing, notwithstanding she was aware in broad terms that she was being accused of wrongdoing in relation to her pay and the preparation of her contract of employment.

[174]The claimant’s fit note stated that she was suffering from a stress-related problem and from stress at work and that she would not be fit for work for a month. I find that the fit note excused the claimant from attending work but did not specifically excuse her from attending an investigation meeting or a disciplinary meeting.

[175]Mrs Turner wrote to the claimant on the 10th October to invite her to a rescheduled investigation meeting that was to take place on the 21st October. That letter notified the claimant that failure to attend would result in the meeting going ahead without the claimant’s input. However, it was made clear that the meeting was not a disciplinary meeting. It was characterised as a “fact-find” so that the respondent could get answers to questions that had been raised. The letter went on to state that the next step after the investigation meeting would be either that the respondent took no further action against the claimant or that there would be a “move to disciplinary action based on the investigatory and supporting evidence.”

[176]I find that Mrs Turner intended the meeting of the 21st October to be the final stage in the investigation, but not the final stage in the disciplinary process. I also find that Mrs Turner was clear in her own mind as to the distinction between an investigation meeting and a disciplinary meeting. I find that she expressed this distinction clearly in the letter and I further find that the claimant would have understood that the convening of a disciplinary meeting was one of two potential outcomes following completion of the investigation stage.

[177]The rescheduled meeting was convened at a time when the claimant was still on sick leave.

[178]The claimant responded to the invitation letter by letter dated the 20th October, the day before the rescheduled meeting was due to take place. The claimant indicated that she would not be attending the meeting due to her fit note but said that she was willing to attend a meeting when she was fit enough to do so.

[179]Mrs Turner sought further guidance from Miss Peat. Miss Peat felt that the next step was to enquire whether the claimant had a history of work-related stress. There was no written evidence of previous incidents of stress and the respondent could not recall the claimant ever having time off with stress in the past.

[180]Mrs Turner and Miss Peat decided that a decision could be made on the evidence that they had gathered without calling a disciplinary meeting. Although in cross examination Mr Wright sought to link this decision to the claimant’s attitude to both the investigation and Mrs Turner and Miss Peat’s handing of it (effectively seeking to make it the claimant’s fault that the respondent’s witnesses had not convened a disciplinary meeting), I find that this was not in mind of Mrs Turner and Miss Peat when the decision was made. Miss Peat stated in her witness statement that she felt that moving to a decision was in the claimant's best interests, as it avoided a prolonged and stressful process, although she conceded that she or Mrs Turner should have sent a further letter to try and convene a disciplinary hearing.

[181]In cross examination, Mrs Turner stated that ongoing stress on not only the claimant but also the respondent, Mrs Turner and the claimant’s colleagues was a relevant factor when determining next steps. I note that this stress issue was also specifically mentioned in the letter of dismissal.

[182]Mrs Turner also stated that she was mindful of the police investigation into the same allegations, although it was not possible in her view to have delayed the investigation into the claimant’s conduct until the conclusion of the police investigation, due to the impact on ASC of supporting the claimant’s wage in the meantime. Mrs Turner also stated in response to a question in cross examination that she was not sure what information could be given to the claimant in light of the fact that a report had been made to the police. Mrs Turner stated that she wanted confirmation from the police that she could disclose evidence to the claimant before doing so.

[183]Mrs Turner does not appear to have made any enquiries as to how long the police investigation was going to take. I note that concerns over the police investigation had not prevented the respondent’s witnesses from starting the investigation and I find many of the questions that would have been asked of the claimant at the investigation meeting directly related to matters that were the subject of the police investigation. Had Mrs Turner genuinely been concerned that disclosing information as part of the internal investigation may have compromised a criminal investigation, I find that no steps would have been taken in relation to discussing the matter with the claimant until such a time as the police investigation had concluded.

[184]I find that the reason that Mrs Turner decided to move straight to a decision was because of the stress that the process was causing to Mrs Turner and the respondent and because Mrs Turner was unwilling for the respondent to keep paying the claimant. The dismissal

[185]Although the investigation had been a joint effort between Mrs Turner and Miss Peat, I find that Miss Peat did not have any input into the final decision to dismiss the claimant. Miss Peat’s evidence was that the final decision to dismiss was taken by Mrs Turner and the respondent. Mrs Turner's evidence was that the decision to dismiss was taken by the respondent alone. Having regard to the respondent’s health at the time the decision was made and having regard also to Mrs Turner's prominent role in the investigation and the surrounding discussions, I find that the decision to dismiss was a joint decision made by Mrs Turner and the respondent.

[186]The claimant submitted that the decision to dismiss her was pre-ordained. I do not accept that it was. I find that Miss Peat in particular was aware of the need to obtain the claimant's views on the allegation before a final decision on the disciplinary allegations could be made. Although that did not happen, I find that had the claimant been well enough to engage with Mrs Turner and Mr Gillen at the investigation meeting, anything she said would have been given due consideration. The offer to the claimant to attend the re-scheduled investigation meeting in order to “present mitigating circumstances” was perhaps an unfortunate choice of words, but I accept Miss Peat's evidence that she felt the claimant should be given the substantive opportunity to answer the allegations against her.

[187]The claimant was dismissed by letter dated the 25th October 2024. The letter was prepared and signed by Miss Peat (who referred to herself as Miss Griffiths due to concerns about identifying herself as Mrs Turner's sister), but I find that the contents of the letter were known to, and approved by, the respondent and Mrs Turner.

[188]The letter began by stating that the respondent believed that the claimant had sent harassing emails to the respondent’s accountant. The claimant was also accused of personally attacking both the respondent and Mrs Turner in correspondence. As a consequence, the claimant had breached the conditions of her suspension and the respondent considered that this alone amounted to gross misconduct, permitting the respondent to “proceed straight to disciplinary”. I note that it had also been stated in the letter of suspension dated 7th October that any failure to comply with the terms of suspension would lead to the investigation ending and the claimant’s “instant dismissal”.

[189]The decision to characterise any breach of the terms of suspension as gross misconduct is at odds with the terms of the claimant’s contract, which characterises breach of suspension as misconduct, but not necessarily gross misconduct. The letter of dismissal dated 25th October stated that those breaches meant that the respondent believed it had the right to proceed “straight to disciplinary”. However, the letter of dismissal did not characterise that breach as an operative cause for the dismissal itself and I find that it was not an operative cause for the dismissal. To the contrary, the letter was explicit in making it clear that it was the three allegations in relation to overpayments, holiday pay and the making of unauthorised changes to contract that had led to the claimant’s dismissal.

[190]The letter went on to make findings of fact about those three disciplinary allegations. In respect of the first allegation, the respondent and Mrs Turner concluded that the claimant had paid large sums into her bank account and that payments had been made for reasons of dishonesty and personal gain. The letter stated that the claimant had taken sums amounting to approximately £27,115.20 since 2018, all of which payments were unexplainable.

[191]In respect of the second allegation, Mrs Turner and the respondent found that the claimant had purposely removed holidays that she had taken from the holiday chart and added more, with the result that the claimant had taken more than her legal holiday entitlement.

[192]In respect of the third allegation, the letter stated that the respondent and Mrs Turner had found that the claimant had made misrepresentations to the accountant by giving instructions for changes to her own contract. The claimant was also accused of obtaining a colleague's contracts by misrepresentation. The claimant was not, though, specifically accused of removing the contracts from ASC’s premises.

[193]The letter stated that there were other examples of gross misconduct but that these had not been pursued.

[194]The letter stated that the allegations warranted the imposition of the “highest disciplinary action” and that the claimant’s services were no longer required “effective immediately”.

[195]Miss Amesu cross examined Mrs Turner on a number of other matters that the claimant believed amounted to serious procedural irregularities throughout the process adopted by the respondent when dismissing the claimant. Mrs Turner made concessions on many of the points put to her by Miss Amesu. She accepted that she had not set out full details of the disciplinary allegations to the claimant and that she had not provided the claimant with copies of documents supporting those allegations. Mrs Turner further conceded that she had not invited the claimant to a disciplinary hearing and that she had not responded to the queries raised by the claimant following her dismissal in the disputed appeal letter. Mrs Turner maintained that she did not consider that this letter amounted to an appeal but conceded the letter had nevertheless asked questions that Mrs Turner on behalf of the respondent had not responded to. The appeal

[196]The letter granted the claimant a right of appeal that was to be exercised within 14 days.

[197]There was a dispute between the parties as to whether or not the claimant had exercised her right of appeal. It was common ground that the claimant had emailed the respondent on the 1st November 2024, copied to Mrs Turner, attaching two documents that the claimant stated would also be sent through the post.

[198]Those attached documents were a letter dated the 29th October addressed to Miss Griffiths (being Miss Peat) and stating that the claimant intended to appeal and that she had passed the letter to her solicitor who would be in touch in due course. The second document was headed “Letter sent me on 25th October 2024” and underneath “The Appeal reply”. This document set out in some detail the claimant’s concerns with the process that had led to her dismissal, together with requests for supporting evidence in relation to the allegations that she had faced.

[199]It was common ground that no appeal meeting took place.

[200]The claimant's position was that the pack sent on the 1st November amounted to an appeal and should have been progressed accordingly. The respondent's position was that the pack simply indicated the claimant’s intention to appeal at some future point (via her solicitor) but did not stand as an appeal. As no further correspondence was received, the respondent considered that there had been no appeal.

[201]I do not find the respondent’s evidence on this point persuasive. I find that the claimant intended her e-mail and attachments of the 1st November to stand as an appeal, whether or not she also intended her solicitor to write to the respondent separately. A natural reading of those documents - especially the second attachment - is that the claimant was setting out her concerns with the process and was setting out requests for information that she felt she needed so that she could deal with the allegations against her. I am satisfied that this letter was a valid letter of appeal and that the claimant therefore exercised her right of appeal within the prescribed time limit. The additional allegations

[202]The respondent also sought to rely on further allegations of potential misconduct that were discovered following the claimant's dismissal. An allegation relating to petty cash was not pursued by the respondent, but two other issues relating to the issuance to the claimant of a fuel card and the claimant allegedly forging the respondent’s signature on ACS documents were pursued.

[203]Insofar as the fuel card is concerned, it was common ground that the claimant held a fuel card that was paid for by the respondent. The claimant's evidence was that the respondent had allowed the claimant to have a fuel card at a time when the claimant was occasionally driving a van for work purposes. The respondent then permitted the claimant to retain the fuel card after the van was disposed of. The claimant's evidence was that Mrs Turner also had a fuel card paid for by the respondent. I do not consider it significant that Mrs Turner had a fuel card - she was, after all, the respondent’s wife.

[204]The respondent's position was that the claimant should never have had a fuel card and that such cards were reserved for employees who needed to use their vehicles for work purposes, such as the engineers.

[205]Although, on the face of it, it may seem a little unusual that the claimant had a fuel card when she did not need to drive routinely in the course of her duties, I accept the claimant's evidence and find that the respondent did indeed permit the claimant to have a fuel card. I find that this decision speaks to the nature of the relationship between the respondent and the claimant and the high level of trust that the respondent placed in the claimant. The fuel card was, I find, a perk of the job that recognised the somewhat unusual position that the claimant was in as a result of the level of delegated authority that she enjoyed as a result of her professional relationship with the respondent.

[206]The claimant accepted that she had, on occasion, signed documents on behalf of the respondent. Her evidence was that the respondent would sometimes ask the claimant to use his card details for payments thought ACS. The claimant was uncomfortable doing this and would typically use her own card for such purchases. She would then recover the expenses from the respondent. However, on occasion, the claimant accepted that she was asked to sign documents for the respondent and in his name. These included COVID-19 government grants.

[207]Mr. Wright cross examined the claimant on other documents that she had signed, purportedly as the respondent (copies of which were in the bundle). The claimant did not dispute signing such documents and did not dispute that she had signed such documents in the respondent’s name rather than in her own name. She maintained, however, that generally she would do so with the knowledge and authority of the respondent.

[208]In response to a question from the tribunal the claimant admitted that she had signed a contract with Spoticar relating to company vehicles without speaking to the respondent. The claimant explained that she had been tasked by the respondent with sorting out the relevant documentation (which she understood related to a warranty) and that she had rung the vehicle company who had identified a missing signature. I find that the claimant did complete the document by signing in the respondent’s name without first speaking to him, but that she did so against the backdrop of what she considered to be the respondent’s wider instructions to her to do what was necessary to effect the warranty.

[209]I accept the claimant’s evidence in this regard. I find that she would, on occasion, sign documents as though she were the respondent, but only when the respondent had asked her to do so in order to expedite or acquire something that the respondent felt that ACS needed. The claimant undoubtedly should not have signed documents as though she were the respondent, but whatever the implications of her doing so may be, those actions did not amount to a fraud on the respondent.

[210]It became apparent during cross examination at the claimant did not necessarily understand precisely what some of the documents that she had signed for the respondent were. This included the personal guarantee dated 22nd September 2022 that the claimant signed in the respondent’s name. The claimant’s evidence was that she thought that this document was a document that provided insurance cover against a possible tax investigation and that the respondent had instructed the claimant to sign it.

[211]Mr. Wright’s submission was that the respondent could not have consented to the claimant signing a document if the claimant did not fully understand what she was signing and had not therefore accurately explained that document to the respondent. I do not accept that. The claimant had the respondent’s authority to sign what was in front of her. Both the claimant and the respondent were cutting corners and any issues that arose as a result of that cannot be laid solely at the claimant’s door. The respondent was ultimately in a position of authority over the claimant and it was his decision to authorise the claimant to use his signature. Relevant law and conclusions – unfair dismissal

[212]Section 94 ERA gives employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to an employment tribunal under section 111 ERA.

[213]The claimant must first show that she was dismissed by the respondent pursuant to section 95 ERA.

[214]Section 98 ERA deals with the fairness of dismissals. There are two stages within section 98. Firstly, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Secondly, if the respondent can show that it had a potentially fair reason for the dismissal, the tribunal must consider whether the respondent acted fairly or unfairly in dismissing for that reason within section 98(4) ERA. Neither party bears the burden of proof when it comes to that second stage.

[215]In all aspects of the case, including the investigation, the reasonableness of the grounds for the respondent’s belief, the disciplinary sanction imposed and the procedure followed, the tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the tribunal would have handled the events or what decision it would have made in the respondent’s place. The tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones

1982 IRLR 439

and Sainsbury’s Supermarkets Limited v Hitt

2003 IRLR 23

[216]Conduct is a potentially fair reason for dismissal under section 98(2) (b) ERA.

[217]Section 98(4) deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 shall be determined in accordance with equity and the substantial merits of the case.

[218]In misconduct dismissals, there is guidance on fairness in the decision in British Home Stores Limited v Burchell

[1978] IRLR 379

as restated in Graham v Secretary of State for Work and Pensions (Jobcentre Plus)

[2012] IRLR 759

[219]The ‘Burchell’ test is a three-stage test. The tribunal must decide whether the respondent had a genuine belief in the claimant’s guilt. Then the tribunal must decide whether the respondent held that belief on reasonable grounds and after carrying out a reasonable investigation.

[220]If the three stages of the Burchell test are satisfied, the tribunal must then consider whether the disciplinary sanction imposed by the respondent was reasonable.

[221]Miss Amesu and Mr Wright provided oral submissions and skeleton arguments which I have considered and refer to where necessary in reaching my conclusions.

[222]The respondent admits that it dismissed the claimant on 25th October 2024. Accordingly, section 95 ERA is satisfied.

[223]It was common ground between the parties that the claimant was dismissed by reason of conduct.

[224]The respondent has therefore satisfied the requirements of section 98(2) ERA by showing a potentially fair reason for dismissal.

[225]Insofar as s. 98 (4) fairness is concerned, I find that the respondent had a genuine belief that the claimant was guilty of misconduct. The letter of dismissal set out the respondent’s findings on three disciplinary allegations relating to the claimant taking unauthorised sums of money, making unauthorised changes to her holiday record and making unauthorised changes to her contract of employment. The letter also stated that the respondent was satisfied that the claimant breached the terms of her suspension and this, in and of itself, amounted to gross misconduct. I am satisfied that, at the time of writing that letter, the respondent genuinely believed that the claimant was guilty of these stated acts of misconduct.

[226]The next issue I must decide is whether the respondent had reasonable grounds for its beliefs. Insofar as the breaches of the terms of the claimant’s suspension are concerned, I find that the respondent did have reasonable grounds to believe that the claimant had had contact with work colleagues during her suspension. The emails sent by the claimant after her suspension are clear about this contact. Such contact had been expressly forbidden by the

[227]The claimant had also been given specific instructions that she should not have contact with the respondent’s business associates. I have found that the claimant did not appreciate that employees working for the respondent’s accountant were regarded as business associates. I have not found that the claimant deliberately breached the terms of her suspension by having contact with Ms Jones and Ms Hancox following her suspension.

[228]However, notwithstanding the above, I have found that the breaches of the terms of the claimant’s suspension were not part of the reasons as to why the claimant was dismissed.

[229]Insofar as holiday pay allegation is concerned, I find that the respondent had some evidence to believe that the claimant’s holiday records may have been manipulated. There was evidence in the form of the photographs that the holiday chart had been tampered with between the 27th and 29th August 2024 through the removal of some of the orange triangles that represented days when the claimant intended to be on holiday. The investigation also gathered evidence to suggest that the claimant may have been on holiday in September 2024 without marking those dates on the planner. However, there was insufficient evidence to show why the records appeared to have been changed or that the claimant herself was responsible for these errors. Accordingly, I find that the respondent did not have reasonable grounds as at the time of the claimant’s dismissal for believing in her guilt of that allegation.

[230]Insofar as the contract issue is concerned, I find that the respondent did not have reasonable grounds to believe that the claimant had given instructions for her own contract to be changed or that she had obtained other employees’ contracts by misrepresentation, which are the two specific conclusions set out in the letter of dismissal.

[231]In the absence of any clarity about what the claimant’s terms and conditions of employment had been prior to the issuance of the written contract - and given the respondent’s willingness to allow the claimant to run the affairs of ACS with little or no involvement from himself - I find that the preparation of written contracts for all employees (including herself) was something that fell within the claimant’s wide job remit.

[232]The claimant had no written contract at all prior to 2004. Her written contract was not changed after it was first issued. Other than seeking to change homeworking provisions in 2024 (a position that in any event, Mrs Turner resiled from), I have found it significant that the respondent did not take issue with the contents of the claimant’s contract when that information became known to him. The contract was not changed again after that. Accordingly, the respondent had no reasonable grounds for believing that the claimant had given instructions for her own contract to be changed.

[233]There were also no reasonable grounds for the respondent to conclude that the claimant had obtained other employees’ contracts by misrepresentation. The claimant had been tasked with preparing the contracts. As the claimant was responsible for preparing contracts for all employees - not just herself - it was not inappropriate that the accountants should write to the claimant with copies of all of the contracts once those contracts had been drafted on behalf of the respondent. The claimant was responsible for arranging for the preparation and distribution of everyone's contracts, not just her own.

[234]The other serious allegation that the claimant faced was in relation to the alleged overpayments of wages since 2018. Although Mr. Wright carried out a detailed and comprehensive cross examination of the claimant on that matter, I find that little or none of the evidence that he used to structure his questions was in the minds of Mrs Turner or the respondent at the time of the claimant's dismissal. The justification for the claimant’s dismissal as summarised in the letter of dismissal was predicated on two conclusions – firstly, that a number of large payments of between £600 and £1510 had been made to the claimant from 2018 and, secondly, a conclusion that the claimant had been overpaid an amount equal to the difference between what the Mrs Turner and the respondent felt she should fairly have been paid and what she actually had been paid. The alleged aggregate overpayment of £27,115.20 largely derives from this second conclusion.

[235]Given that neither the respondent nor Mrs Turner knew what the claimant should have been paid at any given time then, at best, they were simply guessing what they thought it would have been fair for the claimant to have been paid. I find that a reasonable employer would not consider it enough to guess what the claimant’s pay should have been at any given time and then to treat any derogation from that as evidence of fraudulent behaviour on the claimant’s part.

[236]Insofar as the larger payments of £600 to £1510 are concerned, the same objections apply. Without knowing what the claimant should have been paid at any given time, there were no reasonable grounds to conclude that any particular payment had been made to the claimant improperly.

[237]Accordingly, I find that the respondent did not, as at the date of termination of the claimant’s employment, have reasonable grounds on which to believe that the claimant was guilty of the three allegations that led to her dismissal.

[238]The third limb of the Burchell test is that the employer’s belief in the employee’s guilt of the misconduct alleged must be based on a reasonable investigation.

[239]Although Mrs Turner had carried out a limited investigation, there were serious issues with the process. The claimant had not been given any proper opportunity to respond to the allegations. The claimant submitted a fit note at the first investigation meeting and declined to attend the rescheduled meeting by reason of the same sickness. Although a fit note excusing an employee’s attendance at work does not automatically excuse attendance at an investigation or a disciplinary meeting, I find that a reasonable employer would have either enquired about the claimant’s ability to attend such a meeting in light of her fit note or would have required the claimant to have provided additional medical evidence from her GP to the effect that she was not fit to attend such meetings either. This did not happen in this case.

[240]The claimant was expressly notified that the next step following the investigation stage (were the allegations to proceed) would be a formal disciplinary meeting. Such a meeting is required by the ACAS Code of Practice. This meeting never happened and, as such, the claimant was prevented from advancing any explanation to the allegations that she faced. I find that a reasonable employer, even one of the size of ASC, would not have bypassed the disciplinary process entirely.

[241]I find that a reasonable employer would have followed through on the process that it said it was going to follow. It may have been the case that the claimant would have failed to engage with any further meetings, but a reasonable employer would, I find, sought to convene a disciplinary meeting, notified the claimant of her right to be accompanied at that meeting and set out in advance the specific allegations that the claimant faced so that the claimant was in a position to fully understand what she was alleged to have done wrong and was in a position to fully prepare any response, should she wish to advance one.

[242]A reasonable employer would also have considered any response provided by the claimant and carried out further investigations as appropriate before coming to a decision on the disciplinary allegations.

[243]None of this happened in this case, even though Miss Peat in particular was aware of the importance of such procedural steps.

[244]In the absence of any such procedural steps, I find that the opportunity for Mrs Turner and Miss Peat to fairly investigate the serious allegations that the claimant faced in light of any representations that the claimant may have chosen to make was lost. I find that the investigation only considered the initial - and incomplete - information that had been gathered in respect of each allegation. Accordingly, I find that the investigation carried out by the respondent was substantively deficient.

[245]The respondent also failed to grant the claimant a right of appeal against the decision to dismiss her. By failing to convene an appeal meeting, the respondent missed the opportunity to correct the serious deficiencies that had arisen by that point and also failed to afford the claimant the opportunity to respond to the letter of dismissal.

[246]Taken together, the failings in this matter amount to substantial unfairness.

[247]Accordingly, as I have found that a) the respondent did not have reasonable grounds to substantiate its belief as to the claimant’s guilt of the three allegations for which she was dismissed, b) the respondent’s investigation was substantively deficient in terms of depth and scope and c) there was substantive procedural unfairness throughout the limited process adopted by the respondent, I find that the claimant was unfairly dismissed by the respondent within the meaning of section 98 ERA. Relevant law and conclusions – ‘no difference’

[248]I agreed with the parties at the start of the hearing that I would consider evidence relating to the question of whether any unfairness in procedure made any difference to the outcome. In his submissions, Mr Wright referred me to the well-known case of Polkey v AE Dayton Services Ltd

[1987] UKHL 8

. This case deals with the making of adjustments to compensation in circumstances where it can be shown that, if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant might have been fairly dismissed in any event. The principles have recently been revisited in Pal v Accenture (UK) Ltd

[2026] EAT 12

[249]In considering ‘Polkey’, I am not assessing what I would have done in the respondent’s place. Instead, I am assessing what this employer would or might have done.

[250]Mr Wright submitted that if there were any procedural failings, they made no difference to the eventual outcome. He submitted that, the claimant would still have been dismissed at the same time.

[251]Miss Amesu submitted that had a fair procedure been followed, the respondent would have concluded that there was no misconduct at all.

[252]In this case, a fair procedure would have involved the calling of a disciplinary meeting and the provision to the claimant of detail as to the allegations that she faced. A fair procedure would also have afforded the claimant a right to respond to the allegations and a right of appeal against the sanctions imposed.

[253]This is not a case when there were a small number of failures against the backdrop of a broadly sound procedure. Given the extent of the failures in relation to both substantive and purely procedural matters (and I remind myself that it is not typically useful to draw a distinction between procedural and substantive failures when considering a Polkey deduction), it is difficult to make findings on what might have happened had those failures not arisen. However, I remind myself of the case of Software 2000 Ltd v Andrews and ors

2007 ICR 825

, EAT, which underlined the duty of the tribunal to consider evidence that might assist it in fixing just and equitable compensation, even where the carrying out of such an exercise would involve an element of speculation.

[254]I find that had the respondent gone through a fair procedure, an opportunity would have arisen for the respondent’s witnesses to carry out a more detailed analysis of the allegations in light of the claimant’s explanations. As it was, the failings meant that such analysis was only carried out on behalf of the respondent by Mr. Wright during his cross examination of the claimant.

[255]Had there been a fair procedure, I find that the claimant would have encountered the same difficulties in justifying the payments made to her that she encountered during the tribunal hearing. The evidence in support of her contentions was not there.

[256]Given the length of time that the claimant had worked for the respondent, it is possible that the respondent would have concluded that the claimant’s actions were not motivated by dishonesty but instead were the consequence of the claimant being given too much autonomy for too long a time. Equally, the respondent may have formed the view that the claimant's decision to make decisions on her own pay without recourse to the respondent, in circumstances where, by the claimant’s own admission, matters of pay were reserved to the respondent, were such that the only permissible conclusion was that the claimant had been engaged in dishonesty. In that scenario, the claimant would have been fairly dismissed for gross misconduct in any event.

[257]Accordingly, I find that it is appropriate to make a Polkey deduction from the claimant’s compensatory award in the amount of 50%. Relevant law and conclusions – ‘just and equitable’

[258]Pursuant to section 123(1) ERA, the amount of a compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances of the case. Those circumstances may include conduct that predated the dismissal but which was not in the mind of the employer at the time of the dismissal.

[259]Pursuant to the decision in W Devis and Sons Ltd v Atkins

[1977] ICR 662

(as restated in Baisley v South Lanarkshire Council ET Case No.S/4108518/14), where an employee suffers no injustice in circumstances where they could have been fairly dismissed if the employer had known the extent of their misconduct at the time of dismissing them, then it may not be just and equitable that the employee should receive any compensatory award.

[260]Section122(2) ERA gives the tribunal the power to reduce a basic award to any extent where the tribunal considers that any conduct of a claimant before the dismissal was such that it would be just and equitable to do so.

[261]Section 123(6) ERA gives the tribunal the power to reduce a compensatory award by such proportion that it considers just and equitable when the dismissal was to any extent caused or contributed to by any action of the claimant.

[262]Such deductions are not made by reference to the standard of a reasonable employer. It is for the tribunal to make its own assessment based on the evidence that was before it.

[263]Mr. Wright submitted that two matters that came to respondent’s attention after the claimant's dismissal were such that it would be just and equitable for the claimant to receive no compensatory award at all. Those allegations relate to the claimant claiming fuel costs and forging the respondent’s signature on business documents.

[264]In light of my findings of fact on both of these matters, I do not consider that this conduct renders it just and equitable for me to reduce the compensatory award that would otherwise be awarded to the claimant.

[265]Although I have found that the respondent had not acted reasonably at the time that the claimant was dismissed (thereby rendering the claimant’s dismissal unfair) I must have regard to the evidence that the claimant gave to the tribunal in relation to the alleged overpayments of both her regular pay and holiday pay.

[266]The claimant did not dispute receiving the money recorded on the Schedule. I have found that the claimant's responses to Mr Wright's questions were unsatisfactory, in that she could not adequately explain why she had on so many occasions paid herself amounts so obviously in excess of her weekly wage.

[267]Although the claimant had marked up her bank statements with explanations as to the amounts she was paid in any given week, in cross examination she accepted that those explanations were best guesses and that she was unable to provide a proper explanation.

[268]I have found that the claimant received sums which were not evidenced, which represented payments to her over and above her contractual wage, which were not known about or authorised by the respondent and which she was not entitled to receive.

[269]Insofar as the overpayments of holiday pay are concerned, I have found that the claimant was on holiday at times when holidays had been removed from the board and that the total amount of holiday taken by the claimant - at least in the year 2024 (being the year on which Mr. Wright focused in his cross examination) was four days in excess of the claimant’s contractual holiday entitlement. By her own admission, the claimant had also paid herself three additional days’ holiday in lieu over the course of 2024, meaning that she took seven days’ more holiday than her entitlement would have been for the whole of 2024, even if she had not been dismissed part way through that year. Again, the claimant was unable to explain her actions when cross examined by Mr Wright.

[270]Accordingly, I am satisfied that the claimant deliberately manipulated her holiday records and the reporting of her weekly pay in order to receive sums of money over and above her entitlements without the knowledge and consent of the respondent.

[271]Whilst the claimant may not have considered that she was acting dishonestly by a) paying herself additional sums in respect of weekly pay and holiday pay without justification or adequate explanation, b) not maintaining any records (or, in the case of holiday pay, actively manipulating records to her advantage) and c) making additional payments to herself without the consent or knowledge of her employer, I find that her actions in manipulating her holiday records and reporting her weekly pay in order to receive sums of money over and above her entitlements did amount to dishonesty.

[272]Contrary to Miss Amesu’s submissions, I do not consider that the claimant's length of service, extensive as it was, was sufficient to excuse the claimant’s conduct in this regard or to reduce the seriousness of that conduct.

[273]Accordingly, it is just and equitable to reduce the amount of the claimant’s basic award by 100%.

[274]It is just and equitable to reduce the amount of the claimant’s basic award by 100%. Relevant law and conclusions – breach of contract

[275]The claimant brings a claim of wrongful dismissal in respect of non-payment of her notice pay.

[276]Wrongful dismissal is the label given to a breach of contract when that breach relates to entitlements owing to an employee upon termination of their employment. Subject to certain caveats (that are not engaged in this case), the tribunal has jurisdiction to hear such claims pursuant to the provisions of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.

[277]Pursuant to clause 10.1 of her contract of employment, the claimant was entitled to receive three months’ notice of termination of her employment.

[278]Pursuant to the decision in Boston Deep Sea Fishing and Ice Co v Ansell 1888 39 Ch D 339, CA (again as restated in Baisley) a claim of wrongful dismissal will fail if an employer can to point to conduct of the employee that occurred prior to dismissal and which would, if known to the employer at the time, have justified summary dismissal.

[279]Although there were significant failings in the procedure adopted by the respondent that rendered the claimant’s dismissal unfair, in light of my findings of fact in relation to the overpayments of both regular pay and holiday pay, the claimant was nevertheless engaged in conduct prior to her dismissal which would have justified her summary dismissal had the full extent of that conduct being known to Mrs Turner and the respondent at the time the decision to dismiss the claimant was taken.

[280]As such, the claim of wrongful dismissal fails and is dismissed. Relevant law and conclusions – unauthorised deductions from wages

[281]Section 13 ERA states: - (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b)the worker has previously signified in writing his agreement or consent to the making of the deduction.

[282]Enforcement is by way of a complaint to an employment tribunal pursuant to section 23 ERA.

[283]The claimant's claim in respect of unpaid wages relates to five days’ holiday pay that she claims had accrued but had remained unpaid as at the time of her dismissal.

[284]I have found that, in reality, the claimant took four days’ holiday in the holiday year 2024 that was in excess of her annual entitlement. In addition, she paid herself an additional three days’ holiday pay in lieu of holiday that she believed that she would not be able to take over the course of the 2024 holiday year.

[285]Even if the claimant had not been summarily dismissed for gross misconduct, she therefore had, in any event, no entitlement to accrued but unpaid holiday pay. The claimant had been paid well in excess of her holiday entitlement, not only for that part of the year that had elapsed at the point of her dismissal, but for the entire year.

[286]Accordingly, the claimant’s claims in respect of unauthorised deductions from wages in respect of unpaid holiday pay fails and is dismissed.