N Blair v AH UK Animal Health (PVT) Ltd T/a Covetrus: 8001384/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001384/2025

Between

N BlairClaimant

AH UK Animal Health (PVT) Ltd T/A CovetrusRespondent

Before

Employment Judge Jane Porter SIR

Mrs Miller, solicitor for claimant

Date 15 October 2025

JUDGMENT

It is the judgment of the Employment Tribunal to dismiss the claimant’s claim of unfair dismissal.

REASONS

[1]In these proceedings the claimant claims unfair dismissal. There was a Hearing on the Merits in the case on the 16,17,18 and 25 September 2025. At the Hearing on the Merits the claimant represented herself and the respondents were represented by Mrs Miller, solicitor.

[2]At the outset of the Hearing on the Merits the claimant confirmed that her only claim was one of unfair dismissal. ETZ4(WR)

[3]The Tribunal heard evidence from Kris Manuel, UK Sales Director and the Investigating Officer, Yasmin Kushani who heard the claimant’s grievance and was HR support during the disciplinary proceedings, Laura Cairns the Dismissing Officer and Nicky Gordon the Appeals Manager. The claimant gave evidence herself.

[4]The witnesses made reference to a Joint Bundle of Productions numbered 1-532.

[5]The Tribunal made the undernoted Findings in Fact from the evidence heard during the case.

The Issues

[6]The Tribunal agreed with the respondents’ determination of the issues being:(a) In terms of Section 98(1) of the Employment Rights Act 1996, have the respondents shown that the reason for the dismissal was a potentially fair reason within Section 98(2) of the Employment Rights Act 1996?

(b) If so, in terms of Section 98(4) of the Employment Rights Act 1996 was the dismissal fair or unfair, having regard to the matters set out in Section 98(4) (a) and (b) – whether taking into account the size and administrative resources of the employer, it acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee in accordance with equity and the substantial merits of the case?

(c) If the Claimant was unfairly dismissed what, if any, award should be made under Sections 117 – 124A of the Employment Rights Act 1996? Findings in Fact

[7]The claimant was employed by the respondents between the 7 March 2028 and the 28 April 2025 when she was dismissed for gross misconduct. The claimant had a clean disciplinary record at the time of dismissal. She was awarded a long service award of £300 on 7 March 2025.

[8]The claimant’s contract of employment is to be found at 44 onwards. The claimant’s contract of employment defines Gross Misconduct as including “dishonesty, including but not limited to, fraud, theft, forgery, providing false or misleading information” and “serious breach of the Company’s policies, procedures or rules.”

[9]The respondents’ Code of Conduct and Disciplinary Rules are to be found at 77 onwards. The definition of Gross Misconduct is repeated there. The Tribunal noted that in evidence the claimant did not maintain that she was unaware of the definition of Gross Misconduct to be found within her Contract of Employment and the respondents’ Code of Conduct and Disciplinary Rules.

[10]At the time of her dismissal the claimant was employed as an Internal Sales Executive (ISE). The claimant’s Job Description is to be found at 64. In her job description it is specified that the claimant has to meet monthly targets, and that commission is payable as a monthly incentive. An explanation of the calculation of commission is to be found at document 95 of the bundle. At the bottom section of that table is “KPI Bonus Expectations” accompanied by the statement “IF NOT MET NO PAYMENT.” KPI stands for Key Performance Indicators. Under the heading “KPI Bonus Expectations” is the statement: “400 calls made per month (No voicemails or messages left to call back allowed).” In evidence, Kris Manuel explained that emails do not count towards the calculation of KPI bonuses, and neither do internal calls, for instance to the sales force on the ground, voicemails, messages to call back and calls which do not connect to the customer. This evidence was not disputed or contradicted by the claimant.

[11]ISEs such as the claimant can earn up to £12,500 commission. However, if less than 80% of the target of 400 calls per month is not met then no commission is payable.

[12]The claimant was eligible for two other types of commission, namely Focus Products and Overall Territory Bonuses. These commissions depended on team performance in contrast to the KPI bonus which was related to each individual’s performance.

[13]The three ISEs had to record all calls on documents described as their Salesforce entries. Examples of the claimant’s Salesforce entries are to be found at 103 onwards. The Salesforce entries comprised the meeting report ID, the account/vet practice name, the meeting report the notes of the meeting, the author of the notes and the date. The Salesforce entries were used for the calculation of each ISE’s commission and the Tribunal found that at all material times the claimant was aware that her Salesforce entries were used in the calculation of her commission and therefore had to be accurately completed by her.

[14]The claimant’s payslips for the months December 2024 to May 2025 are to be found at 380- 385. The Tribunal noted that In December 2024 the claimant earned commission of £300, in January the claimant earned commission of £2495, in February the claimant earned commission of £300 and that no commission was paid to the claimant in March and April 2025.

[15]There were 3 ISEs employed by the respondents. The other two Internal Sales Executives had been employed externally. In late 2024 the claimant became aware that the other two ISEs were on a higher salary than her. On the 13 December 2024 there was an email exchange between the claimant and Kris Manuel (93). In that email exchange the claimant asked for a timeline to review her salary. Kris Manuel replied by saying that he could not give a timeline but that HR and Erin Sparks (Vice President) were aware that the issue of the claimant’s salary had been brought to his attention.

[16]On the 27 January 2025 Erin Sparks sent an email to Rachael Milligan HR Director and Kris Manuel. In that email she said: “Hey guys, I’ve just had a call off Nikki Blair, she has raised to me that her pay is very different from Sam and Joanne’s.... Can we get her adjusted please to match with the others unless she has a documented performance issue we cannot justify underpaying her by such a huge difference...” In response Rachael Milligan stated that that the claimant’s salary was lower for historic reasons in that the claimant had progressed through the company and that there had been underperformance issues with the claimant in 2024 (98)

[17]In a further email exchange on the 27 January 2025 Rachael Milligan expressed the view that it was fair to give the claimant a salary increase to £27,000 with a view to moving her to £30,000 and therefore parity with the other ISEs in 2026 (97). The Tribunal found therefore that by late January 2025 the respondents had reached a consensus to the effect that the claimant should be afforded a pay increase to reach parity with the other two ISEs.

[18]In her role as an ISE the claimant was provided with a mobile phone. Vodafone was the network provider for the respondents. In late January 2025 it came to Kris Manuel’s attention that the claimant’s sales calls were considerably greater than the other two ISEs. This issue came to his attention via a review carried out by Lyall Hamilton, a senior colleague to the claimant. Such reviews were carried out periodically by the respondents. In this instance the review was carried out because there was concern that the other two ISEs were under-reporting their calls.

[19]After analysing the data and looking into call discrepancies Lyall Hamilton discovered considerable discrepancies between the claimant’s Salesforce entries and the Vodafone records. At all material times Vodafone was the network provider to the respondents. Lyall Hamilton’s findings are to be found at 99 onwards. The findings at 99 show that the actual calls made by the claimant in the period October 2024 to January 2025 were considerably less than those recorded by her in Salesforce. The reference to “Christie” in those findings is a reference to calls made by the claimant to a member of the Salesforce team which should be discounted for the purpose of calculating commission. Lyall Hamilton compiled tables comparing the claimant’s Salesforce entries (to be found at 103-124) and the Vodafone logged calls for the period November 2024 to January 2025 which are to be found at 100, 101 and 102. These documents show significant differences between the calls logged by the claimant in her Salesforce entries and the actual calls recorded by Vodafone. The Tribunal accepted the evidence of Kris Manuel that had the claimant’s commission been calculated on the basis of the calls recorded on Vodafone then little or no commission would have been payable to the claimant in January and February 2025.

[20]Lyall Hamilton’s findings were shown to HR, given that the claimant had been paid commission on the basis of her Salesforce entries and it appeared that there were considerable discrepancies between these entries and the Vodafone call records. The claimant was suspended with effect from 18 March 2025 in terms of a letter of that date from Kris Manuel. That letter stated: “Based on our recent evaluations of Sales force activity and its alignment with client calls, it has come to our attention that discrepancies exist between the hours logged on Salesforce and the corresponding hours of calls made from your work phone over a three month period. This discrepancy is considered a serious breach of integrity, encompassing acts such as dishonesty, fraud, theft, forgery and the provision of false or misleading information. Such behaviour is classified as gross misconduct under the Company’s Code of Conduct and Disciplinary Rules.”(129) The claimant was invited to an investigation interview on Wednesday 19 March at 2pm.

[21]The Tribunal concluded that the suspension of the claimant following the investigation into call discrepancies was not related to her request for increased pay. The Tribunal reached this conclusion as they accepted the evidence of Kris Manuel that the respondents were supportive of the claimant’s request for increased pay and were in agreement that her pay should be increased. The Tribunal noted that this evidence was not challenged by the claimant in cross examination.

[22]The Investigation Meeting took place on the 19th March 2025. The meeting took place via Microsoft Teams. The claimant, Billie Skinner from HR and Kris Manuel were all present. Notes of the meeting are to be found at 146-149 of the Bundle. The Microsoft Teams transcript of the Investigation Meeting is to be found at 169-184 of the Bundle. The claimant agreed in evidence that these Notes are ‘broadly accurate’. The details of all call discrepancies were discussed in detail verbally and the claimant had the opportunity to respond to them. At the Investigation Meeting the discrepancies in January 2025 were highlighted with particular reference to 2 January 2025 when 23 calls were logged on Salesforce and no calls were in fact shown on the Vodafone records (136) Against this background the Tribunal found that although no documentation was provided to the claimant in advance of the investigatory meeting the claimant was provided with sufficient detail in the letter of suspension and with sufficient verbal detail at the investigatory meeting to answer the case that was made against her. Having reached this conclusion the Tribunal considered it unnecessary to resolve a discrepancy in the evidence on whether Kris Manuel shared his screen and disclosed the documents 99-102 to the claimant.

[23]The claimant stated in the meeting that she recorded emails as telephone calls (171). She repeated this when discussing the discrepancies between Salesforce logs and the Vodafone records for November, January and February. Following the Investigation Meeting Kris Manuel reviewed the claimant’s emails to see if they would explain the discrepancy between the SalesForce entries and the Vodafone records. However the claimant’s emails did not account for the discrepancies between the records.

[24]The claimant alleged that Kris Manuel used biased language at the investigatory meeting. It was not in dispute that Kris Manuel did use language such as ‘one of your supposed calls’ (177) and ‘you didn’t even attempt to call any of them’ (181) but found that such language was used in the context of the claimant’s position at the investigatory meeting that the calls entered by her on Salesforce had not been made and that she had emailed the customers instead of making those calls.

[25]The claimant admitted under oath that making entries in Salesforce indicating that calls were made when in fact emails were sent was dishonest and constituted gross misconduct. She admitted under oath that suspension was the appropriate route where dishonesty was alleged.

[26]The claimant’s pay increase to £27,000 was put on hold pending the outcome of the disciplinary process. She was however awarded a ‘cost of living’ pay increase to £24,999 with effect from the 1 April 2025 (271). The Tribunal accepted the evidence of Kris Manuel that the respondents’ actions in failing to increase the claimant’s salary at this time were the actions of a reasonable employer when faced with allegations of fraud on the part of an employee. The Tribunal also accepted the evidence of Kris Manuel that had the allegations against the claimant been dismissed she would have been retrospectively awarded the agreed pay rise to £27,000.

[27]On the 26 March 2025 the claimant was invited to a Disciplinary Hearing on Thursday 27 March 2025 (145). The Disciplinary Hearing was postponed at the claimant’s request and took place on the 8 April 2025. In attendance were the claimant, Laura Cairns Operations Director and the decision maker (who had hitherto not been involved in the disciplinary process) and Yasmin Kushani as HR support.

[28]In advance of the Disciplinary Hearing the claimant was provided with additional copies of the respondents’ conduct Policies and Procedures and Code of Conduct and Disciplinary Rules (66-83); Billie Skinner’s Minutes of the Investigation Meeting on 19 March 2025 (146-149); and was given a written invitation to the Disciplinary Hearing (150) which set out(a) the allegations against the claimant;

(b) the claimant’s right to be accompanied to the Hearing; and

(c) that a possible outcome of the hearing could be the decision to dismiss the claimant. Evidence of emails sent by the claimant prepared by Kris Manuel (151-153) and the SalesForce Records for January 2025 (154-162) were provided in advance of the Disciplinary Hearing. At the claimant’s request, the SalesForce Records for November and December 2024 (163) together with the respondents’ Vodafone call summary on 28 March 2025 (193-219) were also provided to the claimant in advance of the Disciplinary Hearing, as was the Teams transcript of the Investigation Meeting (169-184).

[29]The Notes of the Disciplinary Hearing on 8 April 2025 are to be found at 290-292. At the Disciplinary Hearing the claimant’s position changed. To this end she stated that the calls recorded by her on Salesforce had all been made. Following the Disciplinary Meeting the claimant attempted to share video evidence with Laura Cairns to verify that the calls logged on Salesforce Force were made by her and were recorded on her mobile phone (290).

[30]The meeting was adjourned to allow Laura Cairns to review the new information. As the video evidence of calls provided by the claimant was too fast for Laura Cairns to analyse Laura Cairns requested and was sent the claimant’s mobile phone. Laura Cairns then set aside 3 hours of her time to analyse the claimant’s mobile phone. The Tribunal accepted the evidence of Laura Cairns that this period of time was sufficient for her to review the call data on the claimant’s phone and in doing so accepted the evidence of Laura Cairns that the 3 hour period was uninterrupted time. In this time period she was not only able to analyse whether the calls recorded by the claimant had in fact been made but also was able to check that the phone was functioning properly by making calls on it herself and checking that they were recorded properly on the Vodafone network. Laura Cairns also checked with Vodafone themselves and found that there had been no faults with the network at the material time. After taking into consideration that no faults in the claimant’s phone had been reported up until the disciplinary process the Tribunal considered that the steps taken by Laura Cairns to check that the claimant’s phone was functioning property were reasonable in all the circumstances. In reaching this conclusion the Tribunal had regard to the fact that in the Investigation Meeting the claimant had admitted that she was not aware of any technical fault in her phone (174).

[31]The analysis by Laura Cairns of the claimant’s phone found significant discrepancies between the actual calls made by the claimant and those recorded on Salesforce. Examples of these discrepancies are to be found in the document prepared by Laura Cairns to be found at 333. The Tribunal accepted the evidence of Laura Cairns that what is shown in 333 are examples of a wider picture found by her on examination of the claimant’s phone in comparison with the claimant’s Salesforce entries. The document at 333 provides examples of 3 calls entered by the claimant on Salesforce that should not have been so entered as the call was attempted but not connected. These calls were to Thistle Vets Ltd, Ardmory Vet Clinic and Moray Coast. During cross examination claimant admitted under oath that she could not have made the first call to Thistle Vets on 2 January 2025 as documented in 333 because the number there shown is in fact Thistle Vet’s fax number (532).

[32]The Disciplinary Hearing was reconvened on the 28 April 2025 at 4.30pm. An earlier date had been offered to the claimant which she postponed as she stated she wished Trade Union representation to be present. The invite letter stated that the purpose of the reconvened Disciplinary Hearing was to communicate the outcome of the disciplinary process to her.

[33]The Tribunal found that the fact that the disciplinary invite letter said that the purpose was to communicate the outcome of the reconvened Disciplinary Hearing to the claimant did not render the disciplinary process unfair. To this end the Tribunal noted that the initial Disciplinary Hearing on the 8 April 2025 was a fact finding hearing which was postponed and reconvened to consider new information provided by the claimant to the effect that she had, in fact, made all the calls shown on the Salesforce Entries. The fact that the reconvened Disciplinary Hearing was for the purpose of communicating the outcome of the disciplinary to the claimant did not invalidate the fairness of the Disciplinary Hearing on the 8 April 2025. In any event it was open to the claimant to present new evidence to Laura Cairns up until the reconvened Disciplinary Hearing on the 28 April 2025.

[34]The Notes of the continued Disciplinary Hearing on the 28 April 2025 are to be found at 291-292. At the continued Disciplinary Hearing Laura Cairns put to the claimant that she made calls which were not connected, recorded those calls on her Salesforce entries then received commission for the calls. Laura Cairns put to the claimant that this amounted to gross misconduct and that the claimant’s contract of employment would be terminated with immediate effect (292).

[35]Following the Disciplinary Hearing the decision to dismiss the claimant was confirmed to her in writing (281-283). Accompanying that letter were the Vodafone call records relied upon by the respondents together with the document prepared by Laura Cairns of examples of discrepancies in the claimant’s Salesforce entries to be found at 333.

[36]The Tribunal concluded that the provision of the Vodafone call records after the claimant was dismissed did not render the dismissal unfair as she had been in possession of her mobile phone up until shortly before the reconvened Disciplinary Hearing on 28 April 2025. To this end it was clear that the claimant was aware that her mobile phone provided a complete record of all calls made by her. The Tribunal noted that it was not denied by the claimant that the Vodafone call records showed far fewer calls made by her than those recorded in her SalesForce entries.

[37]The claimant appealed the outcome of her Disciplinary Hearing by email dated the 1 May 2025. Nicky Gordon, a manager senior to Laura Cairns was appointed to hear the Disciplinary Appeal. Nicky Gordon had had no previous involvement in the claimant’s disciplinary process. The Tribunal accepted the evidence of Nicky Gordon that he understood his remit in conducting the appeal as(i) to conduct a review of what had happened before; and

(ii) to look at the facts of new and conduct his own self-assessment of the situation. The claimant was invited to a Disciplinary Appeal Hearing by Teams on the 12 May 2025 (344). The invite stated “I will conduct a thorough and impartial review of all available evidence, including any new points raised during the meeting, before reaching a final decision.”

[38]The Disciplinary Appeal Hearing took place via Teams on the 12 May 2025 (352- 360). At the Disciplinary Appeal Hearing Nicky Gordon went through all the points raised by the claimant in her Appeal. Nicky Gordon also questioned the claimant about the fact that she had recorded 23 calls on the 2 January 2025 none of which should have been so recorded, and all of which went to the calculation of her commission. The Tribunal found that in conducting the Disciplinary Appeal Nicky Gordon did indeed conduct a review of what had happened before, look at the facts of new and carry out a self-assessment of the situation. Nicky Gordon stated in conclusion at the Disciplinary Hearing that: “I feel a level of evidence has been met that my findings are to uphold the original outcome of the disciplinary which was to terminate your employment with immediate effect on the grounds of misconduct and that is based on the evidence of the phone records and the feedback from yourself today. I know its not what you want to hear. (359)”

[39]The outcome of the claimant’s Disciplinary Appeal was sent to her by letter dated the 16 May 2025 (364-365).

[40]The Tribunal found that in reaching their conclusions both Laura Cairns and Nicky Gordon had regard to the respondents’ Code of Conduct and Disciplinary Rules.

[41]The claimant submitted a grievance on the 27 March 2025 (187-189). The grievance related to the disciplinary process to that date. The grievance was considered by Yasman Kashani from the respondents’ HR department and the claimant’s grievances were not upheld (220 and 223-226). There was no grievance meeting between Yasman Kashani and the claimant. The claimant appealed the grievance outcome (227-228). Nicky Gordon was appointed to hear the claimant’s grievance appeal also. The claimant’s grievance appeal was heard on 12 May 2025 by Teams (343, 345-351) and was not upheld (361-362).

[42]Under cross examination the claimant admitted on oath that the matters raised in the grievance did not cause any prejudice to her in the disciplinary process. In these circumstances the Tribunal considered the issue of the grievance process to be of limited relevance to the issues in this case. Having accepted this evidence given by the claimant the Tribunal determined that the fact that Nicky Gordon heard both the grievance, and the appeal was of no relevance to the issues in this case.

The Law

[43]S98 of the Employment Rights Act 1996 provides: “s98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) The reason (or, if more than one, the principal reason) for the dismissal, and (b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it- (b) relates to the conduct of the employee, (4) Where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. “

[44]On the meaning of ‘reasonable’ the Tribunal had regard to the well known case of Iceland Frozen Foods v Jones

1982 IRLR 439

EAT, being authority for the propositions that:(i) the starting point should always be the words of the statute itself;

(ii) in applying the section an employment tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the employment tribunal) consider the dismissal to be fair;

(iii) in many cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(iv) the function of the employment tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.

[45]The range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable as it does to other procedural and substantive aspects of the decision to dismiss a person from their employment (Sainsburys Supermarkets Ltd v Hitt

(2003) IRLR 23

)

[46]In reaching their decision the Tribunal must also take into account all relevant ACAS Codes.

[47]It is the employer who must show that misconduct was the reason for dismissal. The case of British Home Stores v Burchell

(1978) IRLR 379

EAT is authority for the proposition that a three-fold test applies. The employer must show that:• it believed the employee guilty of misconduct

• it had in mind reasonable grounds upon which to sustain that belief, and

• at the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.

[48]This means that the employer need not have conclusive direct proof of the employee’s misconduct — only a genuine and reasonable belief, reasonably tested.

[49]His Honour Judge McMullen QC (as he then was), giving the judgment of the EAT in Singh v DHL Services Ltd EAT 0462/12, indicated that it is only the first of the three aspects of the Burchell test identified above that the employer must prove. The burden of proof in respect of the other two elements of the test is neutral.

[50]When determining what type of behaviour amounts to gross misconduct is difficult to pinpoint and will depend on the facts of the individual case. However, it is generally accepted that it must be an act which fundamentally undermines the employment contract (i.e. it is repudiatory conduct by the employee going to the root of the contract) — Wilson v Racher

1974 ICR 428

, CA.

[51]The Acas Code of Practice on Disciplinary and Grievance Procedures states that the employer’s disciplinary rules should give examples of what the employer regards as gross misconduct, i.e. conduct that it considers serious enough to justify summary dismissal (see para 24). The Code suggests this might include theft or fraud, physical violence, gross negligence or serious insubordination. The ACAS Code also recognises that an employee might be dismissed for a first offence where it constitutes gross misconduct (see para 23).

[52]In determining the reasonableness of a summary dismissal, the tribunal must have regard to whether the employer had reasonable grounds for its belief that the employee was guilty of gross misconduct. In Eastland Homes Partnership Ltd v Cunningham EAT 0272/13 the EAT held that the employment tribunal had fallen into error when it failed to consider whether it was reasonable for the employer to characterise the employee’s conduct as gross misconduct. C, a caretaker on a housing estate, was dismissed after failing to disclose to his employer that his wife was named as a beneficiary in the will of one of the estate’s tenants. The tribunal found that, given his long service, exemplary disciplinary record and the support he received from the tenants on the estate, no reasonable employer would have dismissed him. The EAT overturned the decision on appeal, holding that the tribunal never asked itself whether it was reasonable for the employer to regard C’s conduct as gross misconduct. If the employer’s view that the misconduct is serious enough to be characterised as gross misconduct is objectively justifiable, that should be considered as one of the circumstances against which to judge whether it was reasonable for the employer to have treated the conduct as a sufficient reason to dismiss under s98(4) of the Employment Rights Act 1996.

[53]Both parties made oral submissions which the Tribunal noted and considered in its determination. Submissions for the respondents The undernoted is a summary of the respondents’ submissions in their own words. The respondents also submitted ‘Outline Submissions’ which the Tribunal took into consideration in their determinations. Unfair Dismissal Potentially Fair Reason for Dismissal The Claimant was dismissed due to her conduct (falsifying her SalesForce records resulting in her being paid commission to which she was not entitled) which is a potentially fair reason for dismissal under Section 98(2) of the Employment Rights Act 1996. There is no credible evidence to suggest that the fact the Claimant raised a query about her level of pay in or around December 2024 caused or contributed to her dismissal. Genuine Belief The Tribunal is asked to accept the evidence of Laura Cairns and Nicky Gordon that they genuinely believed the Claimant to have been guilty of the misconduct alleged. Reasonable Grounds for Belief It is submitted that the Respondent did have reasonable grounds for its belief that the Claimant was guilty of the misconduct allegation against her. The evidence, and representations by the Claimant, was carefully and thoroughly considered by both Laura Cairns and Nicky Gordon. The evidence in support of the allegation was compelling. In particular: There were considerably more calls detailed on SalesForce (with notes suggesting a conversation took place) than on the mobile phone records. The examination of the Claimant’s mobile phone handset showed that calls had been attempted and not connected (meaning that no call could have taken place). The test calls conducted by Laura Cairns showed that the handset was operating as expected and that there was no fault with the phone. Reasonable Investigation The Respondent carried out as much investigation as was reasonable in the circumstances. This included reviewing her SalesForce and mobile phone call records, an Investigation Meeting with the Claimant on 19 March 2025, considering what the Claimant had to say at the Disciplinary Hearing on 8 April 2025, reviewing her mobile phone device, and conducting test calls on her mobile phone device. It is denied that it would have been reasonable for the Respondent to send the Claimant’s mobile phone device to a third party for fault analysis. Laura Cairns tested the mobile phone and no fault was detected. There was no basis to suspect any phone fault. Reasonableness The conduct alleged was serious. Misconduct involving fraud, falsification of records, theft or dishonesty is commonly recognised as gross misconduct justifying summary dismissal. Fair Process The process followed by the Respondent was fair. It included an investigation, Disciplinary Hearing and appeal hearing. The Claimant was told of the allegation against her, provided with the supporting evidence, was given the opportunity throughout to present her case and was advised of her right to be accompanied. If, which is denied, there was any unfairness in the process prior to the appeal, which is denied, those defects were cured on appeal, and the dismissal was nonetheless fair. Remedy If, which is denied, the dismissal was procedurally unfair, the Claimant would have been fairly dismissed even if a fair procedure had been followed and, as such, no compensation should be awarded. If, which is denied, the dismissal was unfair, the Claimant’s blameworthy and culpable conduct in falsifying her SalesForce records caused her dismissal and no basic award or compensation should be awarded. If, which is denied, the Claimant was unfairly dismissed she has failed to take reasonable steps to mitigate her losses. In particular it was not reasonable for her to withdraw her applications for roles with EMT Healthcare or Farmina Pet Foods, or to restrict her job search to home-based roles based on her personal preference. Submissions for the claimant The undernoted is a summary of the claimant’s submissions in her own words. This is a claim for unfair dismissal under s.98 Employment Rights Act 1996. The Respondent alleges falsification of Salesforce records, but I maintain that all calls were made and any discrepancies were due to potential technical faults with the work phone, which the Respondent failed to investigate properly. Under Burchell, the Tribunal must assess whether the Respondent had a genuine belief, based on reasonable investigation, and reasonable grounds. The investigation was inadequate:• At the investigation stage, no evidence was provided to me, and the Respondent did not check the phone until after the first Disciplinary Hearing.

• Mr Manuel used biased language ('one of your supposed calls' / 'you didn’t even attempt to call them').

• The handset was company property; under the ACAS Code paras 5, 6, and 39 the employer had a duty to investigate thoroughly and share evidence. They did not disclose key records until after dismissal. The dismissal process was procedurally unfair:

• I was not provided with Vodafone records or handset analysis until after dismissal (contrary to ACAS Code 12, 13, 46).

• There was no grievance hearing, despite a formal grievance (ACAS Code 38–39).

• Appeals were not independent: both grievance and disciplinary appeals were heard by the same directors, contrary to ACAS Code 27.

• The reconvened disciplinary invite (17 and 22 April) stated purpose was to review evidence and discuss allegation, but by 17 April Ms Cairns had already decided outcome – showing predetermination. Substantively, out of ~1200 calls over 3 months, the Respondent only relied on 3 disputed examples. Commission was audited and signed off, showing my work was properly verified. This does not amount to gross misconduct. Pay: Internal emails show I was underpaid compared to a colleague in the same role, despite 15 years’ service and training new staff. This context shows unfair treatment and supports credibility of my grievance. Remedy: If unfair dismissal is found, I seek basic and compensatory awards with an uplift (up to 25%) for failure to follow the ACAS Code (s.207A TULRCA 1992). Polkey should not reduce compensation as Ms Cairns confirmed that had a fault been found, further investigation would have been required before dismissal. In summary, the Respondent failed to follow the Burchell test, failed to comply with the ACAS Code, and predetermined the outcome. The dismissal was both procedurally and substantively unfair. Discussion and Decision The Issues (a) In terms of Section 98(1) of the Employment Rights Act 1996, has the Respondent shown that the reason for the dismissal was a potentially fair reason within Section 98(2) of the Employment Rights Act 1996?

The Issues

[54]In determining that the reason for the claimant’s dismissal was misconduct, the Tribunal had regard to their Findings in Fact that (i) It was not the claimant’s position that she was unaware of the definition of gross misconduct to be found within her Contract of Employment, and the respondents’ Code of Conduct and Disciplinary Rules; (ii)The claimant did not deny that misrepresenting her SalesForce entries and receiving commission which was not due could constitute fraud and therefore gross misconduct in terms of her Contract of Employment, the Code of Conduct and Disciplinary Rules; (iii) In late January 2025 Lyall Hamilton found considerable discrepancies between the claimant’s Salesforce entries and the Vodafone records of her calls in that the latter were far less than the claimant’s Salesforce entries; (iv) these discrepancies were confirmed following examination of the claimant’s mobile phone by Laura Cairns;(v) the claimant did not dispute that there was a considerable disparity between her Salesforce entries and the Vodafone records (vi) The misrepresentation of SalesForce entries by the claimant resulted in her receiving commission which was not due to her.

[55]The claimant’s position is that the real reason she was dismissed is because in late December she queried why she was paid less than the other ISEs and asked for a pay increase. The Tribunal found that the evidence did not support this assertion. To this end the Tribunal noted that folllowing the claimant raising the issue of pay with the respondents there was consensus between Erin Sparks Vice President and Rachael Milligan HR Director that the claimant should be awarded a pay increase to £27,000 with a view to her obtaining a further increase in 2026 to reach parity with the other two ISEs.

[56]The Tribunal found that the instigation of the investigation into the discrepancies between the claimant’s SalesForce entries and Vodafone call records by Lyall Hamilton in late January 2025 was simply because discrepancies were noticed between the claimant’s SalesForce entries and those of the other two ISEs and there was concern that the other two ISEs might be underreporting their calls. The Tribunal found that the failure to award the claimant the increased salary of £27,000 was as a result of the ongoing investigation into the disparity between the claimant’s Salesforce entries and the record of Vodafone calls made by her. To this end the Tribunal accepted the evidence of the respondents that had the allegations been dismissed the agreed pay rise to £27,000 would have been awarded retrospectively to the claimant. (b) If so, in terms of Section 98(4) of the Employment Rights Act 1996 was the dismissal fair or unfair, having regard to the matters set out in Section 98(4) (a) and (b) – whether taking into account the size and administrative resources of the employer, it acted reasonably or unreasonably in treating the reason as sufficient for dismissing the employee in accordance with equity and the substantial merits of the case?

[57]In answering this question the Tribunal had regard to the three fold test as set out in the case of British Home Stores v Burchell. Firstly, the Tribunal concluded that the respondents did have genuine belief in the claimant’s guilt. To this end prior to the Investigation Meeting Kris Manuel was shown tables compiled by Lyall Hamilton showing significant differences between the claimant’s Salesforce entries in December, January and February and the calls recorded by Vodafone throughout that period. Laura Cairns, as dismissing officer, had both this information and her own examination of the claimant’s phone which showed that many of the calls entered on Salesforce by the claimant had not been made by her. In determining the appeal, Nicky Gordon had all the information that had been in front of Kris Manuel and Laura Cairnes together with the conclusions drawn by him from the claimant’s representations at the Appeal Hearing. Kris Manuel, Laura Cairns and Nicky Gordon were all aware that misrepresentation by the claimant of her Salesforce entries had the potential to result in payment of commission being made to her that was not due to her.

[58]Secondly, the Tribunal asked itself whether the respondents had reasonable grounds for their belief that the claimant was guilty of the misconduct alleged?

[59]In reaching the conclusion that the respondents did have reasonable grounds for their belief that the claimant was guilty of the misconduct alleged the Tribunal noted that at no point did the claimant dispute that the information before Laura Cairns and Nicky Gordon had been accurately collated. That information (comprising the Salesforce Records, the tables compiled by Lyall Hamilton, the minutes of the Investigation Meeting and Laura Cairns’ own examination of the claimant’s mobile phone) purported to demonstrate that the claimant had inaccurately made Salesforce entries of calls that were not made by her, and that such calls had resulted in commission being paid to her which was not due to her.

[60]The claimant’s position was that the respondents could not have such reasonable grounds for their belief without sending her mobile phone off for forensic examination. However, the Tribunal concluded that it was reasonable for Laura Cairns to test the claimant’s phone herself in the absence of any logged fault prior to the disciplinary process or any fault recorded on the Vodafone network.

[61]Thirdly, the Tribunal asked whether the respondents carry out as much investigation into the matter as was reasonable in all the circumstances of the case? In answering this question in the affirmative the Tribunal had regard to the fact that in reaching the decision to dismiss the claimant Laura Cairns had in front of her(i) the claimant’s Salesforce Entries;

(ii) the Vodafone records for the relevant period;

(iii) tables compiled by Lyall Hamilton showing significant discrepancies between the claimant’s Salesforce entries and the Vodafone call records;

(iv) the notes of the Investigation Meeting;(v) her own analysis of the claimant’s mobile phone, examples of which are to be found in the document 333 and (vi) the respondents’ Code of Conduct and Disciplinary Rules. Nicky Gordon had all of this information before him prior to conducting the claimant’s appeal hearing. The Tribunal concluded that the totality and compilation of this documentation constituted a reasonable investigation.

[62]The claimant’s asserted that her mobile phone should have been requested earlier and analysed; however, her position at the Investigation Hearing was that the discrepancies shown between her Salesforce entries and the Vodafone call records were as a result of her logging emails as calls. The Tribunal noted that before the decision to dismiss was reached by Laura Cairns the claimant’s phone was requested, produced and analysed by Laura Cairns. The Tribunal concluded that in the absence of any logged fault it was reasonable for Laura Cairns to test the claimant’s phone itself rather than send it away for forensic analysis to ensure that the claimant’s calls had been accurately recorded.

[63]The Tribunal then proceeded to consider the reasonableness of the dismissal overall. Firstly, the Tribunal considered that the respondents’ categorisation of the claimant’s conduct as gross misconduct to be reasonable given the conclusions of their investigation and the fact that wrongful entries in Salesforce could lead to commission being paid that was not due to the claimant. The Tribunal reached this conclusion after also having regard to the claimant’s Contract of Employment and the respondents’ Code of Conduct and Disciplinary Rules.

[64]The Tribunal then considered whether a fair process was followed. To this end the Tribunal noted that in the letter of suspension (129) the claimant was advised of the allegations against her and of the right to be accompanied to the Investigation Meeting.The Tribunal found that at the Investigation Meeting further explanation was given of the allegations made against the claimant and concluded that the claimant had sufficient notice of all allegations made against her, notwithstanding the fact that no documentary evidence had been provided to her in advance of the Investigation Meeting.

[65]The Disciplinary Hearing was heard by Laura Cairns, being a manager who had not had any previous involvement in the claimant’s case. The claimant requested and was granted a postponement of the Disciplinary Hearing. In advance of the Disciplinary Hearing the claimant was advised of the allegations against her, told of the right to be accompanied and was advised that a possible outcome of the meeting could be dismissal (150). Prior to the Disciplinary Hearing the claimant was provided with the notes of the Investigation Meeting; the transcript of the Investigation Meeting; the summary of the Vodafone records, her SalesForce records for November 2024 to January 2025 and further copies of the respondents’ relevant policies together with relevant emails. The claimant was given the opportunity to state her case at the Disciplinary Hearing and provide further explanation on the issue of the call discrepancies. The claimant was not provided with the Vodafone records themselves in advance of the Disciplinary Hearing; however the Tribunal noted that prior to the Disciplinary Hearing on the 8 April 2025 the claimant retained her mobile phone which would have provided her with all relevant information on the issue of calls made by her and their duration.

[66]The reconvened Disciplinary Hearing was postponed at the claimant’s request. The Tribunal found that the fact that the purpose of this Disciplinary Hearing was to communicate the outcome to the claimant did not invalidate the fairness of the disciplinary process given that the claimant had had the opportunity to present her case at the Disciplinary Hearing on the 8 April 2025. Further and in any event the Tribunal noted that the claimant understood that she could present any new evidence up until the date of the reconvened Disciplinary Hearing (252).

[67]The Tribunal found that the claimant was given the right to appeal, and that the process leading up to and during the Appeal Hearing fell within the range of reasonable responses open to the respondents. To this end the Tribunal found that the Appeal Manager (Nicky Gordon) was independent and had not previously been involved in the case and, further, that in acting as the Appeal Manager Nicky Gordon both conducted a review of all that had gone before in the disciplinary process, looked at the facts of new and carried out a self-assessment of the situation.

[68]The Tribunal found the claimant’s grievance process to be of no relevance to the fairness or otherwise of her dismissal, given her own evidence under oath that the grievance process did not cause any prejudice to her in the disciplinary process. For the same reasons the Tribunal found the fact that Nicky Gordon acted as Appeals Manager in both her Disciplinary Appeal and her Grievance Appeal to be of no relevance to the issues in this case. Further and in any event the Tribunal noted that the Acas Code of Practice on Disciplinary and Grievance Procedures provides that: “Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently” (para 46).

[69]For all of these reasons, it is the decision of the Tribunal to find that the decision to dismiss the claimant fell within the range of reasonable responses open to the respondents and that the claimant was fairly dismissed.

[70]In reaching its conclusion that the claimant was fairly dismissed the Tribunal was mindful of the claimant’s own evidence that the first call shown in the document prepared by Laura Cairns at 333 was a call that could not possibly have been made by her as it was to Thistle Vets Ltd’s fax machine. The Tribunal considered this to be an admission by the claimant of misconduct which came within the definition of gross misconduct in the claimant’s Contract of Employment, Code of Conduct and Disciplinary Rules. In so concluding the Tribunal had regard to the Acas Code of Practice on Disciplinary and Grievance Procedures which provides that an employee may be dismissed for a first offence where it constitutes gross misconduct.

[71]After reaching the conclusion that the claimant was fairly dismissed the Tribunal did not consider it necessary to determine the final issue, being if the claimant was unfairly dismissed what, if any, award should be made under Sections 117 – 124A of the Employment Rights Act 1996.