Ms N James v Ms C Ritchie and Ms J Perkins T/a DR James & Son: 6008751/2024

EMPLOYMENT TRIBUNALS

Case No 6008751/2024

Between

Ms N JamesClaimant

Ms C Ritchie and Ms J Perkins T/a DR James & SonRespondent

Before

Employment Judge R Brace

Mr Gittins (instructed by Counsel) for claimant

Date 29 January 2025

JUDGMENT

The judgment of the Tribunal is as follows: The name of the Respondent is amended by consent to Ms C Ritchie and Ms J Perkins t/a DR James & Son Unfair Dismissal

[1]The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed.

[2]The Claimant caused or contributed to the dismissal by blameworthy conduct and it is just and equitable to reduce the compensatory award payable to the claimant by 10%.

[3]A separate remedy hearing will be listed for 3 hours by video (CVP) to determine any compensatory award. JUDGMENT having been sent to the parties on 3 February 2025 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]This was a two-day hearing, heard in person at Swansea Civic Justice Centre and where both parties were represented.

[2]As the named Respondent, DR James & Son, operated as a partnership, the name of the Respondent was amended by consent from that trading name to the names of the two individual partners.

[3]Oral judgment was given on the afternoon of the second day and a further 3 hour hearing has been listed to consider remedy, insufficient time remaining at the end of the two-day hearing. The Respondents have requested written reasons of the liability judgment by way of email dated 31 January 2025.

Background

[4]The Claimant began employment with the Respondents, who operate in partnership as a law firm, as a paralegal on 8 November 2021 and working in the Respondent’s property department.

[5]On 21 March 2024, the Claimant received confirmation that she had been summarily dismissed for gross misconduct.

[6]The Claimant had entered into Early Conciliation on 17 June 2024 that ended on 18 July 2024 [5]. She filed her claim on 16 August 2024 bringing a claim of unfair dismissal only. No claim for wrongful dismissal was brought [6]. Claim and Response

[7]In the Particulars of Claim attached to her ET1 Claim form [18], the Claimant disputed that the reason for her dismissal was misconduct and that the real reason was that the Respondent had been concerned about upsetting certain clients of the Respondents’ firm, Victoria and Anne Jones. At §40 Particulars of Claim, the Claimant also set out her specific challenges to fairness of the process.

[8]Within the Grounds of Resistance attached to the ET3 [37,28], the Respondents denied the claim and contended that they had a reasonable belief that the Claimant had committed misconduct, that they had conducted a reasonable investigation and had acted reasonably in all the circumstances in treating the misconduct as sufficient reason for dismissing the Claimant. In the alternative, they relied on Polkey v AE Dayton Services Ltd

[1987] ICR 142

to argue that the Claimant would have been dismissed in any event and that the Claimant’s contributory conduct should reduce any compensatory award.

[9]At the outset of the hearing, taking into account that the statements from the parties had referenced criminal proceedings in relation to a Victoria Jones, a client of the Respondents, being a potential victim of harassment and assault, I sought to clarify that no criminal allegation had been made by Victoria Jones that would qualify her for lifetime anonymity. This was confirmed by the Respondents after they re-checked the position with Victoria Jones. The Respondents also confirmed that both Anne and Victoria Jones had provided consent to disclosure of their confidential legal issues that were contained in the Respondents’ witness statements. Schedule of Loss

[10]In her Schedule of Loss, the Claimant confirmed that she had been employed from 8 November 2021 to 21 March 2024 and received gross weekly pay at the rate of £398.67, net weekly pay at the rate of £340.50 and that she also received employer pension contributions claimed at the rate of £19.51 [43]. She has obtained alternative employment on 7 May 2024 and works 14 hours per week at the rate of £160.16. She claims a basic award of £1,196.01 and a compensatory award of £17,250.75.

Evidence

[11]The Tribunal had written witness statement evidence from the following on behalf of the Respondent:a. Rhian Griffiths, paralegal;

b. Ceri Ritchie, Respondent; and

c. Jan Perkins, Respondent.

[12]A written witness statement was also provided by the Claimant.

[13]Only Ceri Ritchie and the Claimant were subject to cross examination and questioning from the Tribunal, the statement evidence of Rhian Griffiths and Jan Perkins being accepted as unchallenged evidence by the Claimant.

[14]I also had an agreed bundle of some 292 pages (the ‘Bundle’) and I informed the parties that unless I was taken to a document in the Bundle, they should not assume that I would have read it, particularly as none of the written witness statements cross-referred to pages in any witness statements. References in this judgment to pages in that Bundle are denoted by [ ]. Adjustments

[15]No reasonable adjustments were required by either party and no applications were made.

List of Issues

[16]A list of issues had been prepared and it was agreed that the Claimant was raising specific challenges as follows:a. The Respondent had no fair reason for dismissal;

b. That the dismissal was predetermined; and

c. The dismissal process was unfair, relying on the following specific challenges to fairness: i. The suspension of the Claimant without good reason on 6 February 2024, which prevented the Claimant from accessing the workplace or colleagues and restricted her ability to defend herself; ii. The failure by the Respondent to provide the Claimant with the allegations against her before the first investigatory hearing on 14 February 2024; iii. The failure to speak to Daniel Brooks regarding the events of 6 February 2024, and/or to confirm that the Claimant had previously informed him of her knowledge of Victoria Jones and asked him to discontinue the bail address change; iv. The failure to organise a further investigatory meeting, or undertake any further investigation, after the addition of a further allegation relating to the copying of sensitive paperwork on 22 February 2024; v. The addition of a further allegation, in the letter of 5 March 2024, that the Claimant had copied sensitive paperwork for personal gain, which had not previously been investigated or notified to the Claimant and was only explored at the disciplinary stage; vi. The approach of Jim Crouch to the disciplinary hearing on 8 March 2024, which the Claimant submits did not allow her to put her case and showed a predisposition towards a finding of guilt; and vii. The Respondent’s failure during the appeal process to identify and rectify the above. Facts

Background

[17]The Respondents are two solicitors that operate in partnership, trading as a law firm and based in Pontardawe. It is a high street practice dealing with a range of private legal matters including conveyancing, wills and probate, family and litigation. The Respondents employ four staff, all legal assistants or paralegals, including a Sara Evans, who is a paralegal for Jan Perkins.

[18]The Claimant was, at the time of the termination of her employment on 21 March 2024, employed as a paralegal working alongside and for Ceri Ritchie. She had been employed by the Respondents since 8 November 2021. She worked four days a week handling conveyancing matters, her work involving a variety of duties including the issuing of contracts and dealing with property completions, as well as more administration matters of filing, file opening, photocopying and checking that client identification for money laundering requirement was filed. She was considered to be highly competent in her work. She was 48 years old and had over 2 years’ full service. Background to suspension of the Claimant

[19]The Respondents have acted for members of one particular family, the Jones family, for a number of years. They regard the family as one of their best and valued clients and have had, it appears, repeated instructions from them. Over the years, the Respondents have acted for Anne Jones on various property and probate matters. Ceri Ritchie has also personally acted for many years for Anne Jones’ daughter, Victoria Jones.

[20]She has also acted for Victoria Jones’ former partner, Lee Francis, in the sale of a property. It appears uncontested that the relationship between Victoria Jones and Lee Francis had continued for a number of years and that Ceri Ritchie was aware that this relationship had ended in around October 2023 and that since the breakdown of that relationship, Lee Francis had at some point been charged with certain criminal offences which Ceri Ritchie had understood, irrespective of whether or not this is correct, stalking, coercive behaviour and assault of Victoria Jones.

[21]At some point in December 2023, the Respondents were instructed by Victoria Jones regarding a letter she had received a letter from Lee Francis’ solicitors; he was seeking return of some his items he claimed remained in their former cohabiting home. The Respondents were instructed to respond, which they did by sending a response on behalf of Victoria Jones, asserting that Lee Francis had breached certain bail conditions that had been imposed regarding any contact that he could have with her.

[22]On the following Monday, 8 January, the Claimant attended work and informed Ceri Ritchie that she had recently, from the previous November, been dating Lee Francis and that she had been made aware by him of the correspondence, namely that correspondence between his legal representatives and the Respondents on behalf of Victoria Jones, in particular the Respondents letter which he had received on the Friday prior, 4 January. The Claimant confirmed that she had wanted to bring this to Ceri Ritchie’s attention as she was working for the firm, Ceri Ritchie confirmed to the Claimant that she was aware of the criminal proceedings.

[23]Ceri Ritchie confirmed that she was aware of the criminal proceedings against Lee Francis and it was her unchallenged evidence that the Claimant stressed that it was a new relationship which might not last and that she had told the Claimant that she was entitled to a private life and, provided that it had no impact on the Respondent firm or her work, that she had nothing to add.

[24]It further appears that the fact that Lee Francis had hearing in relation to those criminal proceedings was also at some point discussed as, on 15 January 2024, the Claimant asked Ceri Ritchie for a day’s annual leave as it was the day of Lee Francis court hearing and he was due in court. The Claimant was undecided as to whether she would attend but it was likely that Ceri Ritchie knew that it was a possibility. She did not seek to prevent the Claimant from attending or raise any concerns at this stage with the Claimant about either her relationship or her attending.

[25]The Claimant gave evidence that had Ceri Ritchie raised any concerns about her attending the hearing, she would not have done so. Despite the Claimant attending the hearing of a person alleged to have carried out attacks on one of their most valued and important clients causing Ceri Ritchie great anxiety and concern, she did not engage in any discussion with the Claimant as to the potential impact that her attending might have on the Respondent’s business relationship with the Jones’ family, or indicate that she did not wish her to attend.

[26]At some point, Ceri Ritchie confirmed to the Claimant that the Respondents’ firm would not be representing Victoria Jones in any matter against Lee Francis and, that after speaking to the Solicitors Regulation Authority (“SRA”), she was seeking the Claimant’s permission to inform Victoria Jones of her relationship with Lee Francis, to seek to resolve any conflict issues that might arise. The Claimant gave consent. Thereafter, Ceri Ritchie spoke to both Anne and Victoria Jones and confirmed to the Claimant that neither had any issue with the Claimant’s ongoing relationship with Lee Francis, provided that their client’s confidentiality was not being breached.

[27]On 6 February 2024, the Claimant attended court with Lee Francis and a friend of his, known only as ‘Andrew’.

[28]Later that day, the Claimant received a phone call from Ceri Ritchie confirming that she was suspended immediately, not to return to work the following day and that she would receive a letter confirming the suspension the following morning. The Claimant asked for confirmation as to why she was being suspended and was informed by Ceri Ritchie that she was unable to give her any further information but that there would be a full investigation and that it was because of something that had come to light at court earlier that day.

[29]The suspension of the Claimant had been precipitated by a Whatsapp that Victoria Jones had sent Ceri Ritchie earlier that day after Lee Francis’ hearing [286]. In that Whatsapp, Victoria Jones informed Ceri Ritchie that the hearing had been adjourned and that the Claimant had been in court with him that day. Victoria Jones stated that ‘they’ had asked for Lee Francis’ bail conditions to be changed to allow him to move in with the Claimant and that when the judge asked ‘them’ if the Claimant knew Victoria Jones, ‘they’ had said ‘no’. She added that she had said that had not been true and so ‘it’ had been turned down, ‘it’ being the change of Lee Francis’ address for bail to the Claimant’s address. In crossexamination, Ceri Ritchie accepted that at all times, she had considered references to ‘they’ and ‘them’ to be references to Lee Francis’ legal representatives and not to the Claimant.

[30]There was no evidence before me that Ceri Ritchie made any attempt to clarify the Whatsapp exchange with Victoria Jones. She did make contact with the Crown Prosecution Service (“CPS”) and requested to speak to the CPS Solicitor who had acted on the case and attended court. Her evidence is that the CPS solicitor informed her that the request to change bail address had been put forward and that when she had enquired of him if the defence team had denied that the Claimant knew Victoria Jones, he had confirmed to her that Lee Francis’ defence team had denied that Victoria Jones was known to the Claimant. No note of that conversation was taken or at least no note was before me within the Bundle.

[31]Ceri Ritchie also gave evidence that based on that information, she felt that her relationship with the Claimant had broken beyond repair1. She considered that the Claimant’s actions and/or lack of disclosure had brought the firm into disrepute. She also felt a lack of trust as a result of the Claimant’s failure to inform her of the intention to have the bail address changed to her address, which it transpired arose a couple of days later following the 14 February investigation. She felt she may have been misled as to the extent to which the relationship had developed.

[32]She contacted ACAS for advice as well as Croner’s, the firms employment advisory service. She and Jan Perkins determined to suspend the Claimant on the basis of the information that they had received from the Crown Prosecution Service and from Victoria Jones on 6 February. They confirmed that suspension by letter dated 7 February 2024 [55]. In that letter, the suspension was confirmed as pending investigations into the Claimant’s ‘alleged ongoing relationship with our clients ex partner.’ The letter also stated that the Claimant’s ‘action at Swansea Magistrates Court has brought the company into disrepute’.

[33]The Claimant was upset at the suspension and did not understand why she was being suspended. As far as she was concerned, the Respondents were aware of her actual, not ‘alleged’ relationship with Lee Francis, and had spoken to both Victoria and Anne Jones regarding the relationship. As far as the Claimant was concerned, she had not done or said anything at court earlier that day and had not seen Victoria Jones in the hearing room - they had not been in the hearing room at the same 1 CRWS§ time. She did not understand how anything that she had done that day could have brought the company into disrepute.

[34]As a result, Lee Francis contacted his solicitor to ask what, if anything, had been said in court that could have resulted in such an allegation against the Claimant. They confirmed that nothing had been said regarding the Claimant. First Investigation Meeting: 14 February 2024

[35]On 12 February 2024, the Claimant was invited to an investigation on Microsoft Teams [62]. The letter stated that it was to discuss some concerns the Respondents held regarding her conduct. No other information was provided. The Claimant remained understandably confused as she had informed the Respondent both of her relationship with Lee Francis and that she was potentially going to accompany him at his bail hearing and she had not said anything at the court hearing on 6 February 2024.

[36]The investigation meeting took place on 14 February 2024, conducted on behalf of the Respondents by a representative of Croners, Savanna Wright. The investigation meeting was videoed and a transcript was included in the Bundle [68].

[37]It is an agreed fact that for some reason, the investigator of the allegations, Savanna Wright, had also not been provided the specific allegations that concerned the Respondent. Indeed, she had not been provided with any information on which to base her investigation other than the Claimant was now in a romantic relationship with, and had attended court with an ex-partner of a client of the Respondents’ firm. She did not know the basis for the general allegations.

[38]I found that it was more likely than not, that the investigator did not even have a copy of the statement that Ceri Ritchie had prepared on 9 February 2024 which, to an extent, included her conversation with the CPS [59]. There was no explanation from the Respondent as to how this had arisen. It was not argued and I did not find that this indicated any form of predetermination of the outcome however.

[39]As a consequence, it appears that at that investigation meeting the Claimant, when prompted, spoke to Savanna Wright generally of her relationship, of Ceri Ritchie’s knowledge of her relationship and attendance at Lee Francis’ court hearing:a. She described the lengthy period she had known Lee Francis - over 17 years through their children having been best friends at primary school, and that her more personal relationship with him had not commenced until mid-November 2023; that she was aware of criminal proceedings against him, which related to his ex-partner, and that she had been aware from around mid-December 2023, that he had been arrested for allegedly breaking his bail conditions in relation to Victoria Jones;

b. The Claimant volunteered to the investigator that as a result Lee Francis needed to change his bail address from his sister’s address and that she had a conversation with him around 19 December 2023 when he had asked her if his bail address could be amended from his sister’s address, to the Claimant’s home address just for the Christmas period. She clarified that this had not been progressed and he had not applied for the bail address change.

c. She also volunteered to Savanna Wright that she had informed Ceri Ritchie of her relationship after Lee Francis had been sent a solicitors letter from the Respondents on behalf of Victoria Jones in January 2024 and she had been concerned about any conflict. She confirmed that she had not disclosed her relationship until that letter, as whilst she was aware that Anne Jones was a property client of the firm, the Respondents were not acting currently for her. She further related the conversations that had taken placed between her and Ceri Ritchie regarding her permission to disclose to Anne and Victoria Jones her relationship with Lee Francis and that there was a possibility of her attending court with him in the February.

d. She volunteered further information about what had happened at court that day; that she had only seen Victoria Jones outside the court and that she had been in a private room with Lee Francis whilst they had waited for the hearing to commence and had not come face to face with Victoria Jones in court; that Victoria Jones had not been in the court room during the hearing and that she had only briefly passed her at the end of the hearing. She explained that she had then left the hearing and repeated that she did not understand the allegations as a result; that she would not have gone had she been told that the Respondents would rather she not.

e. The remainder of the meeting appears to deal with what work the Claimant had undertaken for the Jones’ family as there was lack of understanding on both the part of the Claimant and the investigator as to which ‘client’ was causing the concern to the Respondents, and other matters which are also slightly confused, again due to the investigator’s lack of knowledge as to the specific allegations against the Claimant.

[40]The video recording of the Teams meeting was viewed by Ceri Ritchie. She was concerned that the Croner’s representative had not adequately set out the allegations to the Claimant and asked them to revisit them with the Claimant. This was unsurprising as the investigator had not set out any allegations to the Claimant either in advance or at the meeting. Second Investigation Meeting: 16 February 2024

[41]The Claimant was required to attend a second investigation meeting, again conducted by video (Teams) by Savanna Wright on 16 February 2023. Again, a transcript of the meeting was in the Bundle [90].

[42]By that stage, more likely than not, the investigator did have the benefit of Ceri Ritchie’s statement of 9 February 2024, a statement that:a. Briefly described the Respondent’ firms relationship with Victoria Jones;

b. Confirmed that she was aware that the 8.5 year relationship between Victoria Jones and her partner Lee Francis had ended and that he had been charged with criminal offences of stalking, coercive behaviour and assault of Victoria Jones and recounted their firm’s instructions for Victoria Jones in relation to breach of bail conditions;

c. that the Claimant had informed her subsequently that she had recently formed a new relationship with Lee Francis, that she knew of the criminal charges that had been brought against him, stressing that the relationship ‘might not last’ and that she may not even still be with him by the date of the next criminal hearing on 6 February 2024;

d. Confirmed that she had told the Claimant that she was entitled to a private life and provided that it had no impact on the firm or her work, then she had nothing further to add save that they had a further conversation regarding the importance of maintaining client confidentiality;

e. She was aware of the Claimant’s request for a day off on the day of Lee Francis’ next criminal hearing but that the Claimant had indicated that she was unsure if she would attend. The possibility of the Claimant’s attendance was clearly known to her as she explained that the Claimant’s attendance, in support of a person alleged to have carried out violent acts against ‘one of [their] most value and important clients caused [her] great anxiety and concern’;

f. She also confirmed that the SRA had advised that she should consider if she could continue to act for Victoria Jones and that because of that she had obtained the Claimant’s consent to disclose to Victoria Jones, Lee Francis’ relationship with the Claimant; and

g. Within §26, she stated that she had contacted the CPS who had confirmed to her that the request to change the bail address had been put forward and that the defence team had denied that Victoria Jones was known to the Claimant.

[43]Ceri Ritchie ended her statement indicating that she felt a lack of trust as throughout her discussions with the Claimant she had not disclosed that she had intended to have the bail address changed to her address and she felt misled as to the extent to which their relationship had developed.

[44]No note or contemporaneous discussion that Ceri Ritchie had with the CPS prosecutor was provided to the investigator, nor was it included in the Bundle. The only information that was provided was that statement of 9 February 2024 from Ceri Ritchie, which I found lacking in specificity and detail but indicated clearly that it had not been the Claimant who had given any assurances to the court about her knowledge of Victoria Jones, but the defence team. It had not even confirmed if the Claimant had or had not been present when such matters had been discussed.

[45]At the outset of the second investigation meeting, the investigator summarised the Claimant’s position and confirmed to the Claimant that the ‘client’ in question was not Anne Jones, but Victoria Jones.

[46]She also confirmed that the allegation concerning the court hearing on 6 February 2024 was that a request had been made to the Court for Lee Francis’ bail address to be changed to the Claimant’s address. This was the first time that the Claimant was aware of such an allegation. Whilst the transcript indicates that the Claimant had immediately responded yes, it is clear that the Claimant had also responded subsequently that this was not the case as Lee Francis’s solicitor had not stated whose address it was being changed to and so her name had not been given, just whether a change of bail address to someone in the room and that another friend had also been in the room.

[47]In relation to that allegation:a. The Claimant confirmed that whilst a change of bail address had been requested by Lee Francis’ legal representative, at no point had the Claimant’s name been given, or had there been a request for a change of bail address to her address. Her understanding was that the legal representative had discussed a change of address to ‘somebody’ in the room and that both she and ‘Andrew’, Lee Francis’ friend, had been in attendance at some point. She further clarified that she understood that she had not been named and her address had not been given.

b. She also confirmed that Lee Francis’ solicitor had been instructed not to request a change of bail address to that of the Claimant, and that neither she nor Lee Francis had been aware that the legal representative intended to raise any issue regarding a change of bail address as it had not been discussed with them that day.

c. She explained that a possible change of bail address had been discussed and contemplated only briefly in the previous December and that this had been limited to a period over Christmas because of the Christmas period and Lee Francis’ distress at the time.

[48]The second allegation was put to the Claimant, again for the first time, which was that the defence team of Lee Francis, not the Claimant, when they had been asked if Victoria Jones was known to the Claimant, had indicated that she was not. In response to that allegation:a. The Claimant confirmed again that she had not heard this being said whilst she had been in the hearing room and had not been asked such a question. She confirmed that they had since asked Lee Francis’s solicitor what had been said and he had assured them that the Claimant’s name had not been mentioned in the hearing at all;

b. She questioned why she would have said that she did not know of Victoria Jones, when she did as their children had been in secondary school at the same time and the Claimant had seen her in the Respondents’ office. She denied that she would ever have said that she did not know her. She queried why she would have done or said anything to mislead the court, particularly as she had already disclosed her relationship to the Respondents. She confirmed that she had in fact told Lee Francis’ representative that she did know Victoria Jones and any such conversation with Lee Francis’ solicitor had not taken place in her presence. She repeatedly stated that she had not been asked anything by anybody in the court room.

c. She expressed concern that as a paralegal an allegation that she had misled a court, tarnished her reputation.

[49]At some point after that investigation meeting, Ceri Ritchie again viewed the video tape. She sent an email to the investigator on 21 February 2024, referred to as [105].

[50]In that email, she stated that she had personally spoken to the CPS solicitor who confirmed to her that he and Victoria Jones had been told by the defence team in the course of plea bargaining, that it was intended that Lee Francis was going to apply to change his bail address to the Claimant’s address and that because they had not given 24 hours written notice, the address could only be changed with consent of the CPS and Victoria Jones, the complainant, and that the question was asked if the complainant was known to Nery James, the response had been from the defence solicitor, ‘No’. She ended the email highlighting that as the Claimant had indicated that she had not been present when this had been raised, she would have had no way of knowing what had actually been said. She reminded the investigator that she had personally spoken to the CPS prosecutor to ensure that she had the correct facts. This email was not provided to the Claimant to comment on before the investigation was finalised. Additional allegations

[51]On the same day as the second meeting, one of the Respondent’s employees, Rhian Griffiths, a temporary employee albeit a previous existing employee who had been recruited to cover for the Claimant’s suspension, had found in the Claimant’s desk drawer at the Respondents’ offices, copies of Anne Jones’s AML documentation, namely a photocopy of her passport and a photocopy of one of her bank statements.

[52]I had unchallenged evidence from Jan Perkins, supported by unchallenged evidence from Rhian Griffiths, that this documentation had been discovered by Rhian Griffiths while taking steps to compile conveyancing data for the Respondents’ Professional Indemnity Insurance. Such documents should have been filed and placed on the client’s file. On checking the archive files for Anne Jones, no live files being open, Jan Perkins satisfied herself that each already had copies of such AML documentation and concluded that there was no legitimate reason for this paperwork to be in the Claimant’s drawer. She was particularly concerned at this as she was, by that stage, aware that Anne Jones, Victoria Jones’ mother, had claimed that Lee Francis, the man whom the Claimant was by now in a relationship with, owed money to her. She considered that the information contained in the bank statement might have been useful to him.

[53]She passed this information on to Ceri Ritchie. By this time and at that point, I found that Ceri Ritchie concluded that the Claimant had misled the court. She gave evidence in paragraph 1 of her witness statement that this, together with finding Anne Jones’s AML documentation in the Claimant’s drawer, led her to determine that she could no longer state that she had trust and confidence in the Claimant or that the Claimant could ensure confidentiality.

[54]Ceri Ritchie and Jan Perkins agreed to inform Croners of the discovery of documents so that the Claimant could be questioned on her response. Ceri Ritchie followed up that email with a later email confirming that the first time that she had been aware that the Claimant and Lee Francis had changed the bail address to the Claimant’s address for the Christmas period, stating that she felt misled and the Claimant had not been open and transparent.

[55]Croners did not arrange to meet with the Claimant to discuss either allegation further. Rather on the following day, 22 February 2024, the investigator emailed the Claimant [107]. In that email, she indicated that new evidence had come to light and it was now further alleged that the Claimant had ‘copied sensitive paperwork relating directly to a client without good reason. Further particulars being that [she] had been found in possession of photocopies of Anne Jones’ ID bank account statement and money laundering certificate. It is noted that these were in the drawer of [the Claimant’s] desk at the office.’ It was also indicated that whilst the Respondent did obtain such information to carry out money laundering checks (“AML”), it was not customary for staff to retain hard copies and that these were to be placed on the file of the matter/transaction only.

[56]The Claimant was asked to comment by 5pm the following day. The emailed noted that the Claimant had indicated in the investigation meeting that she had not worked on the Jones’ client file, who were probate clients.

[57]The Claimant responded within the given time frame that she had not photocopied sensitive paperwork without good reason; that her drawer was unlocked and could be accessed by anyone and had filing paperwork in there which was yet to be filed on files, some open some archived. She stated that there was filing for various files/clients in that drawer. She stated that she did not work on the files of Anne Jones as she was a probate client, but that she had been previously a conveyancing client explaining the process she adopted if there were existing AML checks.

[58]The Claimant was not spoken to regarding this allegation and not provided with copies of any documents obtained as part of that investigation Investigation Report

[59]Croner completed their investigation report and a copy was provided to the Respondent’s on 28 February 2024 (“Investigation Report”)[111].

[60]The Investigation Report made no reference to the first investigation meeting and attached only the minutes of the second investigation meeting (incorrectly dated as 14 February 2024). Ceri Ritchie’s statement, as well as her email of 21 February 2024 was attached, together with the Claimant’s email of 23 February 2024 in response to the additional allegations.

[61]The findings set out under the heading ‘Breakdown of trust and confidence’ at §14-64 of the Investigation Report are largely uncontentious and represent the same or similar findings made in this judgment as to the Claimant’s responses save in relation in particular to §54, as I had not found that the Claimant had told Ceri Ritchie that she would not be attending court.

[62]The findings set out in §65-86, relate to the additional allegation in relation to the documentation and again represent the same or similar findings again made in this judgment as to the Claimant’s responses

[63]The final paragraphs of the findings set out in §87-90 of that section of the Investigation Report were relevant in that the investigator noted that:a. Ceri Ritchie raised concerns regarding the Claimant’s integrity as a colleague and representative of the Respondent firm;

b. despite the Claimant providing assurance that her personal relationship with Lee Francis would not impact the Respondent’s ‘appointment’ to act for the Joneses, this had not been the case’; and

c. Notes relating to the client had been obtained from the Claimant’s drawer without sufficient and good reason; and

d. She found there was a disciplinary case to answer.

[64]Her recommendations were set out at §91-97 and included that the Claimant be informed of the outcome of the investigation and be invited to attend a disciplinary hearing to answer allegation that she had taken part in activities that had caused the firm to lose faith in her integrity specifically those matters set out at §92, that it was alleged that:a. the Claimant had been found to be in possession of sensitive paperwork directly relating to a client to whom she had no professional connection;

b. In line with that first allegation, that she had copied sensitive information without a business requirement to do so for personal gain;

c. That her actions had contributed to a fundamental breakdown in trust and confidence that go to irrevocably damage the working relationship between her and her employer; and

d. She had caused reputational damage to the firm in respect of the firm’s ‘most prestigious client’.

[65]Reference was made to sections of the Respondent’s handbook which referenced gross misconduct. Disciplinary Hearing: 8 March 2024

[66]By way of letter dated 5 March 2024, that was emailed to the Claimant she was requested to attend a formal disciplinary hearing on 8 March 2024 [124] and it was confirmed that a consultant again from Croners would chair the hearing and conduct any further investigations. The allegations from §92 of the Investigation Report were repeated and it was confirmed that if upheld, the allegations may amount to gross misconduct. The Claimant was provided with a copy of the Investigation Report and its appendices.

[67]The hearing was conducted over video, by Teams Microsoft by Mr Jim Crouch, a second consultant from Croner. The hearing was recorded and a transcript was prepared based on that recording which I considered accurately represented the matters discussed [129].

[68]At that hearing, the Claimant gave an explanation of why documents would be in her desk drawer and her filing procedures. She provided her explanation of why AML documents of Anne Jones would have been kept in her desk drawer. She was also asked about her relationship with Lee Francis and what had happened on 6 February hearing. She maintained that she had not been asked at that hearing if she knew Victoria Jones.

[69]I did not find that there was anything in what was written that would lead me to find that the Claimant was not provided with an opportunity to respond to the allegations at that meeting or that there was anything in the conduct of Mr Crouch that prohibited a disciplinary hearing being fair. During live evidence, I was taken to the transcript of that disciplinary hearing by Mr Gittins, Counsel for the Claimant, and in particular to sections that showed or appeared to show that Mr Crouch had interrupted the Claimant. On my reading of the transcript however, I found that there was no evidence that there was anything in the behaviour of Mr Crouch that was in any way unfair to the Claimant in his conduct of that hearing.

[70]Following that disciplinary hearing, a case report dated 19 March 2024 was prepared setting out the findings [184].

[71]In brief,:a. in relation to the confidential information, a finding that the Claimant was not aware that the information was in her drawer and that she had used the drawer for filing generally. The Claimant’s evidence regarding why such documents were in her drawer was also taken.

b. In relation to the Christmas bail, Mr Crouch found that Lee Francis had asked the Claimant to allow him to use her address for his bail over the Christmas and the Claimant’s evidence was that this simply did not happen. The findings also included that it had been mentioned by Lee Francis’s solicitor that the Claimant did not know Victoria Jones and that the Claimant was in the process of seeking confirmation about this from Lee Francis’s solicitor.

[72]His recommendation was that the Claimant be dismissed.

[73]On 21 March 2024, a letter was sent to the Claimant from Ceri Ritchie, Ceri Ritchie having determined to dismiss the Claimant for her conduct on reviewing the disciplinary report and the evidence attached to the report [192].

[74]No evidence was given by Ceri Ritchie in her witness statement of the specific basis of her rationale, but the letter of 21 March 2024, confirms that her decision was based on:a. the Claimant’s failure to provide an acceptable explanation for the existence of sensitive and confidential information and documents relating to Anne Jones in her desk drawer, particularly in light of the fact that she had been informed that there was a potential for a conflict issue due to the Claimant being in a relationship with Lee Francis;

b. that she believed whilst at court on 6 February 2024, Lee Francis’s defence team did state to the court that the complainant, Victoria Jones was not known to her; and

c. that she was satisfied that the allegations and findings of the report were gross misconduct.

[75]She confirmed that the Claimant’s position as a paralegal with the firm required a high level of trust and confidence and she concluded that the Claimant had ‘created a situation which causes irrevocable damage in the working relationship due to the fundamental breakdown in the trust and confidence necessary to continue [her] employment’. She stated that she had been mindful of the Claimant’s long service with the company.

[76]She confirmed that the Claimant’s employment would terminate on 21 March 2024

[77]I further found however, that despite the letter not referencing the Christmas bail discussion between the Claimant and Lee Francis, this did in my view form part of the reason for the decision to dismiss.

[78]To complete my findings, the Claimant appealed by way of letter dated 25 March 2024 [195] and asked for her appeal to be determined on the papers as she was too unwell to attend [207].

[79]On 8 April 2024 an appeal report was prepared by Jan Perkins [212] that included a statement taken from Sara Evens which sert out confirmation that she had found that both files for Anne Jones that she had been working on contained AML for Anne Jones [217].

[80]The outcome of the Claimant’s appeal was confirmed in writing by Jan Perkins on 12 April 2024 [220]. That letter confirmed that the appeal was not upheld on the basis that the Claimant had failed to provide any evidence to support her appeal [220].

[81]The Claimant subsequently brought these complaints. Contributory fault

[82]For the purposes of contributory fault, I have considered my own view on whether the Claimant was guilty of gross misconduct i.e. did the Claimant do something so serious that the Respondent was entitled to dismiss without notice, I found that she had not for the following reasons:a. The Claimant had disclosed her relationship and had informed the Respondents that it was possible that she would be attending the bail hearing. At most, all the Claimant had done was have a conversation at some point with Lee Francis in December 2023, as to whether he could apply to change his bail address to hers as she held concerns regarding his welfare over the Christmas period. This was never progressed and/or actioned and it cannot be said that it was incumbent on the Claimant to have disclosed that conversation to the Respondents. Had the application progressed, that might have been a different scenario but it had not.

b. There was no evidence that the Claimant had instructed the defence team that she consented for them to put forward a fresh application for a change of bail address for Lee Francis, to her address on 6 February 2024. There was no evidence that the Claimant was even aware that the defence team had any conversation with the CPS about a change of bail address application. There was no evidence that the Claimant’s name was given in court.

c. Even if the defence team had progressed an application without instruction and without the Claimant’s knowledge, it was impossible to find that this was as a result of the Claimant’s conduct.

d. There was nothing in the Claimant’s conduct in relation to any bail application and / or what was said in court that could possibly have amounted to any conduct issue by the Claimant, alone serious conduct issues justifying termination of employment.

[83]That position changes when I consider the issue concerning the AML documentation belonging to a client in her unlocked desk drawer. I was persuaded that retaining AML documentation in a drawer for any significant period is conduct that could lead the Respondent to reasonably conclude that the Claimant had contributed to her dismissal. Submissions

[84]The Claimant’s representative confirmed that the test in Burchell was relied on, reminding me misconduct does not need to confined to workplace (Singh v London Country Bus [1976] IRL 176). They submitted that the reason for dismissal was the Claimant’s potential contempt of court, the request to change the bail address to the Claimant’s address and the subsequent discovery of confidential information, amounting to gross misconduct; that they did not suspend and/or dismiss the Claimant because of her relationship with Lee Francis upsetting an important client, as the Claimant had a right to private life. It was asserted that these allegations caused irrevocable damage in trust and confidence between the employer and employee.

[85]I asked the Respondent to clarify and confirm that no alternative potentially fair reason for dismissal, for example some other substantial reason of a kind justifying dismissal for example had been pleaded, and the Respondent’s representative was asked to clarify their position. It was confirmed that this potentially fair reason for dismissal was not relied upon by the Respondents and that it was not within the scope of my remit to conclude that this was the reason for dismissal.

[86]They submitted that the concerns regarding the Claimant’s integrity arose as she had not raised with the Respondents that she had been actively involved in the change of bail address application change and only after receiving the Whatsapp of 6 February 2024 from Victoria Jones [286] did they become aware of this and held concerns of contempt of court. They say that if the Claimant had been transparent, she would have been honest about being actively engaged in bail application and that she had not provided evidence to dispute that the information that had been given by to the Respondent had been incorrect.

[87]With regard to the sensitive paperwork, it was Jan Perkins’ evidence that no other paperwork other than the AML paperwork for Anne Jones, whose last active file was in October 2022, had been located in the Claimant’s drawer, documentation that should have been filed, when filing should have been undertaken on a daily basis. Even if the Claimant had been behind on her filing, on the Claimant’s evidence, she last worked on a file for Anne Jones in November 2023 and therefore, the gap to 7 February 2023 is significant and it was right for the Respondent to investigate such a matter.

[88]They submitted that they had conducted a reasonable process and that dismissal was in range of reasonable responses particularly given the breakdown in trust and confidence. The invited me to apply a 100% Polkey reduction if I did conclude that the Claimant had been unfairly dismissed and that there should be a reduction for contributory conduct as the Claimant had not provided proof to disciplinary investigation to show she actively contested what had happened at the hearing on 6 February 2024 and that she should have known that no confidential data should have been in her desk drawer.

[89]The Claimant’s representative submitted that the Respondent had not met the burden of proving a potentially fair reason for dismissal and submitted that the Respondents cannot have believed that the Claimant had committed acts of gross misconduct and that the real reason was because the Respondents did not want to upset the Jones family; that the evidence supported how important they were to firm and that the Respondents wanted to continue working for these prestigious clients.

[90]It was the Claimant’s position that as soon as the Whatsapp was received from Victoria Jones on 6 February 2024, the Respondents saw an opportunity to dismiss the Claimant and took it, a position they say was also supported by Ceri Ritchie’s statement of 9 February (para 27 [59]).

[91]They confirmed that they were no longer relying on the suspension as a challenge to fairness but submitted that the Claimant wasn’t told what the allegations were prior to the investigation meeting and that the December bail application issue was never actually put to the Claimant despite being part of the consideration for dismissing her.

[92]In relation to the 16 February 2024 investigation, the Claimant argues that she still had not been provided with information or the specific allegation as to what was said at court and in relation to the confidential documents, had only been given the opportunity to respond by email and no further investigation was carried out, including speaking to the other paralegal.

[93]In relation to the Investigation Report [118], copying matters for personal gain, was never put to the Claimant and as such having that belief wasn’t reasonable for the Respondent to hold. I was reminded that there was an anomaly in the Investigation Report [189], a ‘KT’ having been referenced undermining the reliability of the content and that the reasons for the dismissal are unclear at best

[94]They submitted that the Respondents had attributed to the Claimant what the defence team had said in court, and the conclusion that this then amounted to contempt of court by the Claimant was a ‘step too far’; that the Respondent should have sought to clarify the information from Lee Francis’ defence team; that it was for the Respondent to prove the Claimant guilty, not for her to prove her innocence. In essence, they argued that the Claimant had not done anything wrong.

[95]They submitted that the Respondent’s best case related to the discovery of the AML documents found in her drawer, but that even if there were copies there that had not been filed, that this conduct did not amount to gross misconduct and that if a fair and through investigation had taken place, into all facts, the clear outcome was that the Claimant would not have been dismissed. It followed that any arguments on Polkey must fall. Issues and Law

[96]Section 94 Employment Rights Act 1996 (“ERA 1996”) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111 ERA 1996. The employee must show that they were dismissed by the Respondent under section 95 ERA 1996.

[97]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2) ERA 1996. Second, if the Respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.

[98]In this case the Respondent asserts that it dismissed the Claimant because it believed they were guilty of misconduct. Misconduct is a potentially fair reason for dismissal under section 98(2) ERA 1996. In this regard, the Respondent bears the burden of proving on balance of probabilities, that the Claimant was dismissed for a reason that related to one the potentially fair reasons set out in section 98(2) ERA 1996.

[99]Section 98(4) ERA 1996 then 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.

[100]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in Burchell

1978 IRLR 379

and Post Office v Foley

2000 IRLR 827

. When considering the fairness of the disciplinary process as a whole, the Tribunal also consider the employer’s reason for dismissal as the two impact on each other (Taylor v OCS Group Ltd

2006 ICR 1602

CA).

[101]The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4) ERA 1996, 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, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones

1982 IRLR 439

, Sainsbury’s Supermarkets Limited v Hitt

2003 IRLR 23

, and London Ambulance Service NHS Trust v Small

2009 IRLR 563

[102]If the Tribunal concluded that the dismissal was procedurally unfair, it should consider what adjustment, if any, should be made to any compensatory award to reflect the possibility that the Claimant would still have been dismissed had a fair and reasonable procedure been followed, in accordance with the principles in Polkey v AE Dayton Services Ltd

[1987] UKHL 8

; Software 2000 Ltd v Andrews

[2007] ICR 825

; W Devis & Sons Ltd v Atkins

[1977] 3 All ER 40

; and Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR.

[103]It was also agreed with the parties that if the Claimant had been unfairly dismissed, the TribunaI would address the issue of contributory fault, which arises on the facts of this case. The Tribunal may reduce the basic or compensatory awards for culpable conduct in the slightly different circumstances set out in sections 122(2) and 123(6) ER 1996. Section 122(2) ERA 1996 provides that where the Tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly. Section 123(6) then provides that: ‘Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.’ Conclusions Reason for dismissal

Conclusions

[104]In applying my findings to the issues identified at the outset, I need initially to consider the reason for dismissal and whether or not it was a potentially fair reason for dismissal. The Respondent relies on the Claimant’s conduct, which they say breached the mutual duty of trust and confidence entitling them to dismiss without notice. They rely on the specific reasons set out in the letter of dismissal, namely that she failed to provide an explanation, or acceptable explanation, of the existence of AML documentation which was confidential information, particularly in light of being informed there was a conflict issue and that whilst at court Lee Francis’s defence team had stated to the court that Victoria Jones was not known to the Claimant. In submissions, Ms Wahabi also indicated that the failure to disclose to the Respondent that Lee Francis had requested to the Claimant that she allow him to use her address for his bail conditions over the Christmas period, that is at paragraph 41 of the disciplinary case report, was also the conduct of the Claimant that the Respondent relied on that they say led to the breakdown of trust and confidence leading to the dismissal decision.

[105]I was not persuaded by the Claimant’s argument that the evidence from Ceri Ritchie undermined the Respondents stated reason for dismissal and I was persuaded that it was the Claimant’s conduct on 6 February, in not disclosing the potential conduct on change of bail address for Lee Francis in December 2023, as well as the confidential AML documentation being located in her drawer, that were the reasons or principle reasons for her dismissal. Conduct is a potentially fair reason for dismissal.

[106]I therefore concluded that the Respondent had proven a potentially fair reason for dismissal.

[107]I then move on to the assessment of overall fairness and considering the test in the context of the Burchell requirements. I deal with these in reverse order, dealing first with the investigation before moving on to grounds and belief.

[108]With regard to the investigation, the range of reasonable responses test applies to the scope of the investigation undertaken by the employer as it does to the dismissal decision as established in Sainsbury’s.

[109]I was ultimately not satisfied that the investigation in terms of the overall processes adopted by the Respondents did fall within the range of reasonable responses and these are my reasons for that conclusion.

[110]Notwithstanding my conclusion on the impact of Ceri Ritchie’s evidence on the reason for dismissal, I was persuaded that the evidence of Ceri Ritchie, both from her own witness statement (§29 and §30) and from what she had included in the statement she had prepared for the investigation that I had before me ([61] §27) indicated to me that, from as early as 6 February 2024, and at the latest after watching the videos of the Claimant’s investigation meeting, that she had determined that the relationship between the Claimant and the Respondents had irretrievably broken down. It was my further conclusion that that then impacted on any subsequent decision making on whether the Claimant should, or should not be dismissed.

[111]Any conclusions on any disciplinary investigation in my mind was likely not open and led to unfairness for the Claimant.

[112]I did not consider that the suspension of the Claimant in itself led to unfairness, a point that has been conceded by Mr Gittins for the Claimant in any event, albeit that this suspension did then impact on her ability to contact witnesses, which I do deal with later.

[113]I accept that the content of the suspension letter on 7 February 2024 and indeed later invite to the investigation meeting on 14 February 2024, lacked specificity in relation to the allegations against the Claimant, referencing only the alleged ongoing relationship with the Claimant’s expartner and the Claimant’s action at Swansea Magistrates Court bringing the Respondent into disrepute.

[114]I was not persuaded that the lack of specific detail in the suspension letter, or indeed the invite to the investigation meetings on 14 or February 2024 led to specific unfairness to the Claimant. Whilst the Claimant was not informed of the exact allegations prior to the investigation meetings, this was not a procedural error. I did not conclude that the Respondents’ Disciplinary Policy could or should reasonably be read as stating that these specific allegations had to be put to the employee at these early stages of a disciplinary investigation. Rather, the Claimant had the right to be informed of the allegation and the evidence compiled after any initial investigation but before any decision was made (§5.92 Disciplinary Procedure [240]). That had been undertaken.

[115]Further, whilst the investigation meeting on 14 February 2024 was unreasonable, in that not even the investigating officer knew what the allegations were, this did not in my view ultimately lead to unfairness in the Claimant’s dismissal as a further meeting to correct that failing had in fact been held on 16 February 2024 when, at that point, the specific allegations relating to a change in the bail address in December 2023 to the Claimant’s home and that discussions relating to bail address at the hearing on 6 February 2024 were addressed.

[116]My conclusions in relation to the lack of clarity of the allegations and whether this led to unfairness to the Claimant change however when it comes to the invite to the actual disciplinary hearing. The letter inviting the Claimant to the disciplinary meeting on 8 March 2024 referring only to being found in possession of photocopies of sensitive paperwork (1a and 1b) and that the Claimant’s actions had led to a fundamental breakdown in trust and confidence and that she had caused reputational damage.

[117]In my view, even when read in conjunction with the case report, the allegations were far from clear. The allegations should have been clearly spelled out and they were not, particularly taking into account the Claimant’s professional role as a paralegal and that one of the allegations was in relation to her conduct at a court hearing. This was unreasonable and led to unfairness to the Claimant in the process.

[118]I turn to the specific allegation that there had been unfairness in relation to the failure to speak to Daniel Brooks, the defence solicitor regarding the events of 6 February 2024 and/or to confirm that the Claimant had informed him of her knowledge of Victoria Jones and/or asked him to discontinue the bail address change. My conclusions are as follows.a. Within the context of this working environment, an allegation that a paralegal and an individual studying to complete a CILEX course had misled a court of law is a serious allegation. I concluded that in such circumstances, as much focus on evidence that points toward innocence, as on that which points towards guilt, should be undertaken. The serious effect on one’s future employment and the fact that allegations of a professional conduct issue were involved, informed the need for careful enquiry. I was not satisfied that this had been undertaken.

b. It was always the case that the allegation was that it was the conduct of Lee Francis’s defence solicitor, not the conduct of the Claimant, that gave rise to an indication that the court had allegedly been informed that the Claimant did not know Victoria Jones. I agree with the Claimant’s Counsel that then imputing that as the conduct of the Claimant is a step too far. That it was the defence solicitor, not the Claimant who made any such representations at court, whether to the CPS solicitor or any judiciary dealing with any application, should have put the Respondent on notice that further enquiries should be undertaken. An enquiry that further discussions with the CPS would not have assisted with and could only have been clarified by making enquiries of Lee Francis’s legal representatives. No such enquiries were made and I did not accept that the onus was on the Claimant to provide this evidence. She had repeatedly indicated that no instruction had been given to change the bail address to her address and had repeatedly indicated that at no time was she aware that her name had been mentioned.

c. Had the Respondent made further enquiries prior to the decision to dismiss they would likely have determined that: i. Victoria Jones had not been present at court at the relevant time; ii. what had been said and not been said in support of any bail application had not been advanced to the court but direct to the CPS solicitor; iii. that confirmation by the defence solicitor to the CPS solicitor that the Claimant did not know Victoria Jones was a miscommunication from the defence solicitor, a matter that was eventually clarified with the CPS solicitor in July, well after the Claimant’s dismissal [291]

[119]The failure to make such further enquiry undermined the reasonableness of the investigation and in turn the conclusion of Ceri Ritchie that there had been an irretrievable breakdown in trust and confidence in relation to that specific conduct. Had a reasonable enquiry been undertaken by the Respondent, the conclusion could not have been that the Claimant herself had been in contempt of court, as Ms Wahabi put it in submissions. Further, I fail to see how, the Claimant having a private discussion in the December with Lee Francis about a possible change of bail address only, a possible change which was not progressed, was conduct that could reasonably have led to a breakdown in trust and confidence, particularly in light of the Claimant’s confirmation that had this progressed she would have told the Respondent.

[120]In all those circumstances, and taking into account the seriousness of the allegations for this paralegal, this was a step that should reasonably have been undertaken by the Respondent, and I say the Respondent because they pay Croners to undertake this on their behalf.

[121]I was not satisfied that the steps that had been taken by Croners on behalf of the Respondents and/or the Respondents to investigate the further allegation in relation to the AML was reasonable either, albeit I wholly understand the Respondents concerns regarding the discovery of the AML documentation in the drawer, which I accept were both reasonable and genuine.

[122]I repeat my concerns in relation to the investigation in relation to the events of 6 February 2024 in relation to the allegations regarding the confidential information allegation. Within the context of this working environment, an allegation that a paralegal and an individual studying to complete the CILEX course, has retained confidential information relating to a client and in turn for the purpose of some personal gain is an exceptionally serious allegation. Again, the serious effect on the Claimant’s future employment and the fact that allegations of a professional issue are involved reinforce the need for careful enquiry. What would be reasonable is as much a focus on the evidence that points towards innocence as on that which points towards guilt and that should have been undertaken. It was not and that was unreasonable and led to unfairness for the Claimant.

[123]This is particularly the case where an employee has been suspended and cannot communicate with relevant witnesses, in this case and in particular Sara Evans.a. To simply email the Claimant with the allegation and ask for her comments is not a reasonable investigation;

b. To simply email Sara Evans with set questions at an appeal stage, without exploring with her the Claimant’s explanation for the existence of such documentation in her drawer, is also not a reasonable investigation.

[124]This is particularly the case where the specific allegations relate to allegations that it was done for personal gain. This lead to unfairness for the Claimant.

[125]I was not persuaded that there was any evidence before me to indicate that Mr Crouch’s approach at the disciplinary hearing prevented the Claimant from putting her case forward and/or showed any predisposition of guilt. If tone and intonation was important the Claimant’s legal representatives, they could have made an application for me to watch or listen to any recording of the hearing. They did not and I was not persuaded there was anything in the transcript, from my reading of it, that indicated such behaviour. In particular, I was not persuaded that the example I was given, of one interruption, supported such an argument, particularly coming off what appears on my reading of it, a somewhat lengthy monologue at that particular point in the hearing from the Claimant.

[126]As an aside, whilst I accept that there is anomaly in the case report which references a ‘KT’ for which no one can provide an explanation, I concluded that it was more likely that not that this was simply an error, possibly by Croners using a template for the production of the report (albeit that has not been advanced to me). I did not conclude that a third party, with the initials ‘KT’ had been involved in the preparation of the report or that that particular aspect led to any unfairness to the Claimant.

[127]With regard to the appeal, the Claimant was provided with an appeal, which was considered by Jan Perkins whose evidence was unchallenged, albeit evidence which does not deal with her management of the appeal. I had no specific submissions or evidence before me to support the claim that the appeal process led to any procedural error or unfairness. I conclude the appeal had no impact on the fairness or otherwise of the eventual decision to dismiss.

[128]Whilst Ceri Ritchie had evidence from the CPS lawyer, it was always the case that it was the conduct of the defence solicitor for Lee Francis, not the Claimant, that was being relied on. Further, the information from the CPS lawyer, albeit obtained after the Claimant’s dismissal, indicates that he had confirmed to Ceri Ritchie that the defence solicitor had not advanced arguments in court, but had spoken to him direct. I remain unclear as to the significance of a potential change of bail address being discussed privately between the Claimant and Lee Francis in December as reasonable grounds to establish misconduct sufficient to support a breakdown in trust and confidence.

[129]I agree with the Claimant’s submission that the Respondents’ best case is the existence of the AML documents being found in the Claimant’s drawer, but I had no argument that this in itself would have been sufficient to amount to an allegation of gross misconduct in isolation.

[130]I did conclude however, that the existence of such documents, in particular, in the context of the Claimant’s relationship with Lee Francis, was a ground for establishing some misconduct by the Claimant.

[131]Finally, on the genuineness of the Respondents belief, did the Respondents reasonably believe that the Claimant had committed the misconduct? I found that they did, only in relation to the AML documentation literally being found in her drawer.

[132]Finally, the question is whether dismissal was a fair sanction. Could a reasonable employer have decided to dismiss for the discovery of those confidential documents, and I concluded that they could not. The Claimant had good service with the Respondent and there were no concerns regarding her performance or integrity. They had assured their client of this in their meeting in February. The Claimant also had a long record within the legal sector with no evidence of concerns.

[133]Taking into account the need to consider the range of reasonable responses test set out in Iceland it could not be said that the dismissal was within the band of reasonable responses and I was not satisfied in overall terms that the British Home Stores -v- Burchall test was made out. There had been no reasonable investigation and in turn no basis on which to say there were grounds to lead to a belief that the Claimant had been guilty of the gross misconduct alleged. In overall terms therefore, my conclusion is that the dismissal was unfair and the Claimant’s claim for unfair dismissal was well founded.

[134]I then turn to Polkey and contribution. Whilst the lack of procedure would render the dismissal unfair, the most important aspect was substantive, mainly the Respondents’ failure to identify clearly the circumstances on which the Claimant’s conduct might lead to summary dismissal. Thus, even if the procedural shortcomings had been made good, the Claimant’s dismissal would still have been unfair and no deduction is appropriate for Polkey.

[135]However, I turn to contributory conduct and contribution. I have already concluded that in my view, the onus was not on the Claimant to provide evidence of her innocence of her conduct on 6 February 2024, and that having alerted the Respondent to the lack of any instruction to the defence team or solicitors to change her address or any knowledge that she was referred to by name in open court, the obligation was on the Respondent to make reasonable enquiries, not the Claimant, and that did not impact on my view on contributory conduct.

[136]I was persuaded however, that retaining AML documentation in a drawer for any significant period is conduct that could lead the Respondent to reasonably conclude that the Claimant had contributed significantly to her dismissal and I do make an award of a reduction to the compensatory award payable to the Claimant by 10%. I consider that is just and equitable taking into account the evidence I have before me.

Remedy

[137]At the end of the liability judgment, despite the Respondent’s representative indicating that she did not intend to cross-examine the Claimant any further, no time was left for submissions. A three hour hearing to be undertaken wholly remotely will be listed to hear submissions. The following was agreed at the end of the liability hearing:a. the Respondent did not dispute the calculation of the basic award of £1,196.01;

b. the parties agreed that the Claimant’s weekly pay was as follows: i. Net pay - £340.50 ii. Gross pay - £398.67 REMEDY JUDGMENT JUDGMENT having been sent to the parties on 23 April 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024, the following reasons are provided:

Remedy

[1]At the end of the liability hearing heard on 28 and 29 January 2025, I had found that the Respondents had unfairly dismissed the Claimant but that any compensatory award payable to the Claimant should be reduced by 10%. The Claimant had confirmed that she did not wish to be reinstated or reengaged.

[2]Despite the Respondent’s representative indicating that she did not intend to cross-examine the Claimant any further, no time was left for submissions on remedy and this three hour hearing was listed wholly remotely to hear those submissions. Schedule of Loss

[3]The following was agreed at the end of the liability hearing:a. the Respondent did not dispute the calculation of the basic award of £1,196.01;

b. the parties agreed that the Claimant’s weekly pay was as follows: i. Net pay - £340.50; and ii. Gross pay - £398.67.

[4]An updated Schedule of Loss was provided to the Tribunal and the Respondent just before the commencement of this Remedy hearing which indicated that from 28 October 2024 the Claimant has been employed in two separate jobs, (one paying £160.16 per week net) and one paying £160.16 per week net resulting in a total net salary of £354.64, an amount in excess of the net pay she had received from the Respondent as at the date of termination of her employment.

[5]She claims a basic award of £1,196.01 and a compensatory award of £5,873.11 together with an amount in respect of notice pay of £1,362.00, before adjustments for contributory conduct.

Evidence

[6]The Tribunal had a written witness statement from the Claimant who was questioned by the Respondent’s representative on her Remedy evidence, despite the Respondent’s representative at the liability hearing indicating that she did not wish to question the Claimant.

[7]I still had the agreed Bundle of some 292 pages (the ‘Bundle’) from the final hearing and a further Remedy Bundle had been provided by the Respondent. References in this judgment to pages in that Bundle are denoted by [ ] and to the Remedy Judgment by [RJ ].

Facts

[8]The Claimant was born on 15 June 1975 and at the date of termination of employment on 21 March 2024, she was 48 years old. The Claimant had commenced her employment with the Respondents on 8 November 2021 had therefore had two full years’ service at date of termination.

[9]She had been employed on terms set out in a written contract of employment which provided at Clause 8 that she was contractually entitled to one calendar month notice to terminate, not four weeks’ notice [48].

[10]The Claimant found alternative employment at Pulse gym in an administration role after her employment with the Respondent terminated. Whilst I have had differing start dates for that role from the Claimant, this was because she could not recall the exact date. I was taken to the Claimant’s first payslip from that employment [262] which indicated that she commenced that employment in work week commencing Monday 13 May 2024.

[11]I therefore found that 13 May 2024 was likely to be the date that this new employment commenced.

[12]The Claimant earned £11.44 gross per hour in that role, as supported by that payslip. I accepted the total net income figures from the Claimant in the period worked until 25 October 2024 of £3,363.68.

[13]The Claimant commenced two new jobs at the end of that job; one commencing on 28 October 2024, paying £194.48 per week; one commencing on 31 October 2024, paying £160.16 per week, again both at the hourly rate of £11.44 (gross).

[14]This effect of these two part-time contracts resulted in the Claimant having fully mitigated her losses from her dismissal by 31 October 2024, some 7 months after her dismissal.

[15]The Claimant was challenged on her failure to fully mitigate her losses prior to October 2024, in that she had worked only 14 hours per week from 13 May 2024. Whilst no medical evidence was available to support the Claimant’s own evidence, she hada. given statement evidence (§52CWS) that following the dismissal she had to drop out of her CILEx course at university, evidence that had not been challenged;

b. given both statement evidence (§53CWS) and live evidence that since the dismissal she has suffered with her mental health including anxiety and depression, that she was constantly worried and stressed that she would do something wrong and that her confidence had been shattered and effectively this was administration role was the limit of what she had been able to achieve in that period; and

c. in live evidence that she had no confidence and that she was struggling and that she had been too unwell to work any further hours

[16]I accepted that evidence and found that the Claimant had taken reasonable steps to mitigate her losses, both in obtaining part time hours in May to get back into work and then obtaining more fuller hours with the two part time roles in October 2024 and that the Respondent had not proven that the Claimant had failed to mitigate her losses.

The Law

[17]Section 123 Employment Rights Act 1996 provides (so far as relevant): …………………..the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.

[18]The loss referred to in subsection (1) shall be taken to include—(a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and

(b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.

[19]In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

[20]Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[21]In Scope v. Thornett

[2007] IRLR 155

the Court of Appeal guides me as to my need to engage in a certain amount of speculation in the appropriate circumstances in the words of Pill LJ at paragraph 34: “The employment tribunal's task, when deciding what compensation is just and equitable for future loss of earnings will almost inevitably involve a consideration of uncertainties. There may be cases in which evidence to the contrary is so sparse that a tribunal should approach the question on the basis that loss of earnings in the employment would have continued indefinitely but, where there is evidence that it may not have been so, that evidence must be taken into account.” And at paragraph 36 “The EAT appear to regard the presence of a need to speculate as disqualifying an employment tribunal from carrying out its statutory duty to assess what is just and equitable by way of compensatory award. Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and tribunals are very familiar with making predictions based on the evidence they have heard. The tribunal's statutory duty may involve making such predictions and tribunals cannot be expected, or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation.”

[22]The guidance on consideration of chance in the context of an unfair dismissal claim is summarised in and principles emerge from Software 2000 Ltd v Andrews & Ors

[2007] ICR 895

in that in assessing compensation ‘the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal’.

[23]That requires the tribunal to assess for how long the employee would have been employed but for dismissal. If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively, would not have continued in employment indefinitely, it is for them to adduce any relevant evidence that they wish to rely on. However, we must have regard to all the evidence when making that assessment, including any evidence from the employee herself. There will be circumstances where the nature of the evidence which the employer wishes to adduce is so unreliable that the Tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made. Whether that is the position is a matter of impression and judgment for the Tribunal but in reaching that decision we must direct ourselves properly and need to recognise and have regard to any material and reliable evidence which might assist us in fixing just compensation, even if there are limits to the extent to which we can confidently predict what might have been. We must appreciate that there is a degree of uncertainty with that exercise.

[24]The Claimant must prove loss; the respondent must establish a failure to mitigate loss. In Wilding v British Telecom PLC

[2002] EWCA Civ 349

Potter LJ said that five elements were to be considered in respect of the reasonableness of mitigation:(i) It was the duty of Mr Wilding to act in mitigation of his loss as a reasonable man unaffected by the hope of compensation from BT as his former employer;

(ii) the onus was on BT as the wrongdoer to show that Mr Wilding had failed in his duty to mitigate his loss by unreasonably refusing the offer of re-employment;

(iii) the test of unreasonableness is an objective one based on the totality of the evidence;

(iv) in applying that test, the circumstances in which the offer was made and refused, the attitude of BT, the way in which Mr Wilding had been treated and all the surrounding circumstances should be taken into account; and

(v) the court or tribunal deciding the issue must not be too stringent in its expectations of the injured party. I would add under (iv) that the circumstances to be taken into account included the state of mind of Mr Wilding. Conclusions Basic Award

Conclusions

[25]The Basic Award will be based on calculation of gross week’s pay as defined in s.220 to s.229 Employment Rights Act 1996 and a multiplier of 3 will be applied (which was also agreed between the parties to be the appropriate multiplier) taking into account the claimant’s age at termination (48) and length of service (20 years).

[26]The Basic Award is therefore calculated at £1,196.01.

[27]I had not made any adjustment to the Basic Award within my judgment at the final hearing in April and declined to revisit this at this remedy hearing. Compensatory Award

[28]I concluded that it was just and equitable to award the Claimant a compensatory award based on:a. loss of earnings, from 21 March 2024 – 20 May 2024 (one calendar month,) calculated at the rate of gross pay of £398.67 per week to take into account post-employment notice pay;

b. loss of earnings, from 21 May 2024 – 31 October 2024, calculated at the rate of net pay of £340.50 per week; and

c. loss of employer pension contributions, from 21 March 2024 – 31 October 2024, at the rate of 2% in the sum of £7.97 per week.

[29]I considered it just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer, to restrict the Claimant’s losses to 31 October 2024 being the date that she commenced her two part time roles.

[30]I did not conclude that the Claimant had acted unreasonably in taking the on only 16 hours of work with Pulse from 13 May 2024 to the end of October 2024 and did not find that this was a failure by the Claimant to take reasonable steps to mitigate or minimise her losses. Irrespective of how any job roles there have been available in the legal sector, I accepted the Claimant’s evidence regarding the impact that the dismissal had on her ability to work in the legal sector and that after her dismissal, her confidence was such that she has been unable to face a return to work in the profession and has only been able take on, what for her is, an ‘easy’ administration role as she put it in evidence. She did so relatively quickly, just under two months after her dismissal with the Respondent .

[31]Irrespective of whether there is good employment prospects in the legal sector, the Claimant has been able to obtain two part-time roles that pays her in excess of what she had been earning with the Respondent. On that basis I concluded that by the end of October, the Claimant had fully mitigated her losses and no further loss of earnings should be awarded.

[32]I further concluded again however that taking into account my acceptance of the Claimant’s live evidence regarding the impact that the dismissal had on her confidence, I was not persuaded by the Respondent that the Claimant had failed to mitigate her loss in not obtaining this additional work until October 2024.

[33]I award loss of pension from 21 March to 31 October 2024 at the rate of 2% of the Claimant’s gross pay in the sum of £7.97 per week I award £450 for loss of statutory rights.

[35]I apply the adjustment of 10% reduction for the contributory conduct of the Claimant. I make a basic award of £1,196.01.

[37]In relation to the compensatory award, I make an award of past loss of £11,523.16 as follows:a. Loss of gross earnings from 21 March 2024 – 20 April 2024 (4.6 weeks/(One calendar month) on a gross loss basis for postemployment notice pay in the sum of £1,833.88;

b. Loss of net earnings from 20 April 2024 – 31 October 2024 (27.7 weeks) in the sum of £9,431.85

c. Loss of pension from 21 March 2024 – 31 October 2024 (32.3 weeks) in the sum of £257.43.

[38]I deducted the sums the Claimant received from employment since her dismissal from 13 May 2024 to 25 October 2025 in the sum of £3,686.68.

[39]I adjusted the total of £7,836.48, to take into account the 10% reduction for contributary conduct of £783.65. This left an mount for past losses in the sum of £7,052,83. This amount was the prescribed element.

[40]I awarded £450.00 for loss of statutory rights, but adjusted that to £405.00 again for the 10% contributory conduct reduction to this non-prescribed element of the compensatory award.

[41]This resulted in a total compensatory award to the Claimant of £7,457.83.

[42]The (Recoupment of Benefits) Regulations 1996 apply and the period of the prescribed element was from 21 March 2024 to 15 April 2025.