Ms S Marsh v North Ayrshire and Arran Constituency Labour Club: 8002097/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002097/2024Venue GlasgowHearing 28 and 29 April 2025
Between
Ms S MarshClaimantNorth Ayrshire and ArranRespondent
Before
Employment Judge E MannionC Chapman for claimantLay representative for claimantDate 28 May 2025
JUDGMENT
The judgment of the Tribunal is the claimant’s claim of unfair and wrongful dismissal are successful. The claim for automatic unfair dismissal does not succeed and is dismissed. The respondent is ordered to pay to the claimant the following: A basic award of £1,059.78 A compensatory award of £6,144.27. The amount of £2,296.16 to reflect her notice pay in respect of her wrongful dismissal claim. This is a gross figure and it may be necessary to make appropriate deductions for tax and national insurance as relevant.
REASONS
[1]This is a claim for ordinary unfair dismissal, automatic unfair dismissal and wrongful dismissal. The respondent asserted that they dismissed the claimant fairly for gross misconduct and that there was no wrongful dismissal.[2]I heard from the following witnesses:(i) The claimant(ii) Mrs Benson, former chair of the respondent(iii) Mrs McGhee Elliot, former vice chair and current chair of the respondent(iv) Mr Mark Hill, respondent committee member.[3]A joint bundle of documents was agreed in advance of the hearing. Ms McGhee Elliott made a submission at the outset in respect of some documents in the bundle, that they did not accurately set out what had occurred. It was explained that the respondent could challenge these documents by asking questions of the appropriate witnesses. I decided these documents would not be removed from the bundle as it was unclear without hearing any evidence about their relevancy. In any event, these contested documents were not brought into evidence by the witnesses.[4]At the outset I discussed the issues to be decided and explained the various legal tests for the type of claims being made. An earlier respondent agenda appeared to concede that the disclosures were indeed protected while later correspondence did not. I raised this with Ms McGhee Elliott and this point was discussed, with relevant explanations. Ms McGhee Elliott confirmed that respondent accepted the disclosures were made, that they were protected disclosures but that the respondent position was the disclosures were not the reason for the dismissal.
Relevant law
[5]Section 94(1) of the Employment Rights Act 1996 (the ERA) states that ‘An employee as the right not to be unfairly dismissed by his employer.’[6]Section 98 of the ERA provides that in determining whether a dismissal is fair or unfair in law, an employer must show that the reason amounts to one of the following: conduct; capability (including performance and ill health); redundancy; that holding the role contravenes the law; or some other substantial reason justifying dismissal.[7]Section 98(4) of the ERA outlines that where an employer has shown the reason for the dismissal is one of the above quoted reasons, the Tribunal must determine where the dismissal was procedurally fair or unfair having regard to whether the employer acted reasonably or unreasonably in treating it as a reason for dismissal, having regard to their size and administrative resources and also determining same in accordance with equity and the substantial merits of the case.[8]A three-fold test for misconduct dismissals was established by the EAT in British Home Stores Ltd v Burchell 1980 ICR 303 EAT and remains good law (irrespective of the changes to the burden of proof which have been made since this case was decided). This test is as follows: The employer must believe the employee guilty of misconduct; The employer must have in its mind reasonable grounds upon which to sustain this belief; and At the stage at which the belief was formed, the employer carried out as much investigation into the matter as was reasonable in the circumstances.[9]The second and third limbs of the test now have a neutral burden of proof.[10]The sanction of dismissal should also fall within the band of reasonable responses as per British Leyland (UK) Ltd v Swift 1981 URKR 91, CA. where Lord Denning MR stated: ‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view.’[11]Once a potentially fair reason has been established, the considerations of reasonableness as to the respondent’s actions in respect of Section 98(4) must be considered. This is a neutral burden between the parties.[12]When coming to the decision, the Tribunal is reminded that they cannot substitute their view for that of the employer. It is recognised in case law that different reasonable employers might react in a variety of reasonable ways to a given situation. British Leyland (UK) Lt d v Swift 1981 IRLR 91 CA The Tribunal must decide whether the decision to dismiss fell within the “range of reasonable responses” open to a reasonable employer. This applies both to the procedural matters as well as the decision that dismissal was the appropriate sanction as per Sainsbury’s Supermarkets v HItt [2002] EWCA Civ 1588.[13]The Acas Code of Practice on Discipline and Grievance confirms that at a minimum, an employer should undertake some level of investigation, arrange a disciplinary hearing, inform the employee of the allegations against them and provide sufficient information about the allegations to allow them to answer them. If a decision is taken to dismiss the employee or give them a warning, they should be entitled to an appeal of this decision.[14]Section 103A of the ERA prohibits an employer from dismissing an employee if the reason or principal reason for the dismissal is the fact the employee made a protected disclosure.[15]As per the Court of Appeal in Abernethy v Mott, Hay and Anderson 1974 ICR 323, CA the reason for the dismissal is “a set of facts known to the employer or it may be of beliefs held by him which cause him to dismiss the employee”[16]Wrongful dismissal is concerned with whether a breach of contract has taken place. The only question is whether the contract has been breached. The employer’s reasonableness or otherwise are not a factor.[17]The remedy available in an unfair dismissal claim is a basic and compensatory award.[18]The formula for calculating the basic award is set out in Section 119 of the ERA and provides that a claimant is entitled to one week’s pay for each complete year of continuous service where the claimant was below the age of 41 but not younger than 22. A week's pay is capped at £700 under statute.[19]As per Secretary of State for Employment v John Woodrow and Sons (Builders) Ltd 1983 ICR 582, EAT, a week’s pay is calculated based on gross pay.[20]The compensatory award is provided for in Section 123 of the ERA and is such amount “as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained” by the claimant in consequence of the dismissal. The loss must be attributable to the actions taken by the respondent employer. As per Norton Tool Ltd v Tewson 1972 ICR 501 NIRC, the compensatory award should include items such as loss of earnings loss between the date of dismissal and the hearing; estimated loss after the hearing; expenses incurred as a consequence of dismissal; and loss of statutory protection rights.[21]Where it is established that the claimant would have been dismissed in any event had the dismissal process not contained procedural flaws, it is for the Tribunal to consider if there should be a deduction to the compensatory award to reflect this. This is often referred to as a Polkey deduction from the lead case of the same name.[22]Where it is established that an employee’s conduct has contributed to the decision to dismiss, the Tribunal may reduce the compensation to the claimant to reflect this. This reduction may be to the basic award, or the compensatory award or both. When considering a reduction to the basic award, Langstaff P (as he was then) stated in Steen v ASP Packaging Ltd 2014 ICR 56, EAT that the reduction considers what is just an equitable. When considering a reduction to the compensatory award, it is also necessary to look at whether the conduct caused or contributed to the dismissal. Nelson v BBC (No.2) 1980 ICR 110 CA determined that when looking at contributory conduct, this considers conduct which is blameworthy or culpable. Steen also confirmed that the assessment of whether the claimant’s actions were blameworthy or culpable is for the Tribunal, who is not constrained by the employer’s decision.[23]A claimant has an obligation to mitigate their loss. It is for the respondent to evidence that the claimant has acted unreasonably. Fyfe v Scientific Furnishings Limited 1989 ICR 648 EAT confirms that the onus of showing the claimant’s failure to mitigate loss falls to the employer. Further in Cooper Contracting Ltd v Lindsey 2016 ICR D3 EAT it is for the employer to prove that the claimant acted unreasonably, not for the claimant to show what he did was reasonable.[24]Section 207A(2) Trade Union and Labour Relations (Consolidation) Act 1992 provides that: ‘If, in any proceedings to which this section applies, it appears to the employment tribunal that —(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) the failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25 per cent.’[25]As such a failure by an employer to comply with the Acas Code of Practice on Discipline and Grievance in dismissing an employee can result in an increase to a successful employee’s compensatory award. As per Kuehne and Nagel Ltd v Cosgrove EAT 0165/13 a breach of the Code will not automatically trigger an adjustment to the compensatory award. Rather, the employer must have acted unreasonably in their breach. The Tribunal has discretion to increase the compensatory award, having regard to what is “just and equitable in all the circumstances” and further guidance was provided by Underhill P (as he was then) in Lawless v Print Plus EAT 0333/09. The circumstances for considering an uplift will differ from case to case but should always include: whether the procedures were applied to some extent or were ignored altogether; whether the failure to comply with the procedures was deliberate or inadvertent; whether there were circumstances that mitigated the blameworthiness of the failure to comply; and the size and resources of the employer. Findings in fact[26]The Tribunal makes the following findings of fact on the balance of probabilities.[27]The claimant was employed as a bar manager for the respondent from 3 October 2022 until her employment was terminated on 11 October 2024. During her employment, she was the most senior paid member of staff employed by the respondent.[28]The respondent is a non for profit company which is run by a committee of volunteers. A number of these volunteers hold offices such as chair, vice chair, secretary and treasurer. The committee also has a Constituency Labour Party representative (“CLP”). The respondent operates a bar, primarily for the use of members although guests can attend with members. They operate karaoke and bingo nights as well as live music events.[29]The claimant was answerable to the committee and was directly line managed by the chair. At the time of her dismissal, the chair was Marion Benson. The claimant had responsibility for the running of the bar and management of other bar staff but decisions around the operation of respondent organisation were taken by the committee. Dismissal for example was a committee decision as was the decision to provide training.[30]The claimant made protected disclosures to the respondent about the lack of compliance with data protection rules and specific data protection breaches which had occurred. The claimant made four disclosures over the course of her employment. Two were made on 11 September 2023, one on 18 July 2024 and one on 8 October 2024. These are protected disclosures.[31]The claimant has a general understanding of the requirements under data protection law, in particular the GDPR due to training she received in previous employment. She understands what personal data is and that employers have responsibilities towards their employees in respect of their data and also towards customers or members of the public in respect of their data. The respondent has little to no understanding of their obligations or responsibilities under the GDPR.[32]In July 2024, the claimant informed the committee that a colleague had taken photos of membership information and that this included personal data such as names, addresses and dates of birth. It also included the claimant’s personal data. This employee was dismissed for gross misconduct.[33]The respondent has a contract with an external HR company Croner HR. This company advised them in 2024 over a 6 month period in respect of allegations that an employee was engaged in fraudulent time keeping. That employee was suspended and an investigation took place. Ultimately, no disciplinary action was taken in respect of these allegations.[34]On or around 2 October, the claimant spoke with Marion Benson about a grievance against Mark Hill, committee member. The claimant was upset and concerned that Mr Hill was directing bar staff on how to do their job. She felt he was acting inappropriately. Mrs Benson asked the claimant to put her grievance in writing. The claimant did so and intended to give this to Mrs Benson on 11 October, but she was dismissed on that day. Mrs Benson or the committee did not receive a copy of the written grievance. The claimant’s oral grievance was not brought to the committee.[35]On 3 October the claimant was approached by a club member, Michaela, who complained that while she was in the bar the previous week, someone tampered with her drink by putting a ringpull into it. She felt this was done maliciously. The claimant, concerned that tampering with someone’s drink may amount to a criminal offence, informed Michaela that she would check the CCTV. The claimant went into the manager’s office to access the CCTV. She asked Michalea to show her where she had been sitting. This was the extent of Michaela’s interaction with the CCTV. Michaela was standing at the doorway of the office and was not watching the CCTV alongside the claimant. The door covered the screen where the CCTV was playing. The claimant watched the CCTV, speeding it up to cover more ground, and informed Michaela that it did not show anyone tampering with her drink. She was content with this. As there was no further action required, it was not necessary to inform the committee.[36]The claimant had previously been given permission by both Mrs Benson and Mrs McGhee Elliott to grant access to CCTV.[37]Mrs Benson received a letter dated 8 October 2024 from Susan Hill who alleged that the claimant and Michaela watched CCTV footage of the karaoke night which took place on 30 September and gave Mrs Hill a nickname. Mrs Hill said that she was upset about this. The letter did not provide the background as to why the claimant was reviewing CCTV as set out above.[38]At a committee meeting occurring between the 8 and 10 October 2024 Mrs Benson informed the committee that she had received this letter and read it out. Before doing so, she asked Mr Hill to leave the room as the letter was written by his wife. It was put forward to the committee that the claimant viewing the CCTV was a breach of GDPR. The committee then began to discuss what they needed to do with this information. One committee member, Julie McKinnon stated that if the committee did not react to this, there would be pushback from the employee who was dismissed in July for a breach of GDPR. It was decided that the committee would vote there and then on whether the claimant should be dismissed for gross misconduct. The committee voted ten to two to dismiss the claimant.[39]The allegations in the letter were not put to the claimant. There was no investigation as to whether what was set out in the letter occurred or why it occurred. The letter was taken as fact.[40]A disciplinary hearing was not convened. The claimant’s side of the story was never heard.[41]On 11 October the claimant attended work and was met by Mrs Benson and vice-chair, Lizanne McGhee Elliott in the manager’s office. She was handed a letter of dismissal, noting that her dismissal took effect immediately. The letter outlined “This is due to gross misconduct, your general data protection regulation and CCTV surveillance infraction. As you were previously made aware, legally you should not grant access to CCTV without a written request reviewed by the Committee and yourself. You may look at the CCTV if you believe that a crime had been committed but for no other reason.” The claimant left work immediately. She did not understand the detail of the allegations which resulted in her dismissal.[42]The letter did not provide for a right of appeal. The claimant wrote to the respondent by letter dated 14 October setting out an appeal against her dismissal. The respondent did not organise an appeal hearing.[43]In the first instance, I am required to consider if the claimant was dismissed for making protected disclosures and if so the appropriate remedy. In this regard, the disclosures should be the reason, or the principle reason for dismissal. The respondent accepted that the disclosures were made and that they were protected disclosures under the Act. Their position was the principal reason for dismissal was conduct rather than the disclosures.[44]The claimant’s evidence in respect of this element of the claim was that she felt the committee was viewing her as a nuisance because of these disclosures and particularly the disclosure in July where both member data and her own data had been breached. She was unhappy with the steps taken by the respondent to secure her data after that breach and continued to ask questions about it in September. The last disclosure, made on 5 October, related to the member’s sign in book being placed on the bar. She had raised this matter the previous year but the same breach was occurring again. She felt that the grievance against Mr Hill was the last straw and that the committee wanted to get rid of her. She gave evidence that the previous secretary/treasurer informed her when she left her office in August that some of the committee was out to get the claimant.[45]The respondent disputed that the committee came to the decision to dismiss because of the protected disclosures. Unfortunately, despite the fact that all committee meetings are minuted, the respondent did not produce the minutes of the meeting in which the committee voted to dismiss the claimant. It was open to the claimant to seek a copy of these minutes but she did not do so. I heard evidence from Mrs Benson and Mrs McGee Elliott about the meeting and both stated that the disclosure did not factor into the dismissal. Both witnesses stated words to the effect that they would have expected the claimant to know better as she had previously informed the committee of the lack of compliance with GDPR but this was the extent of the evidence as on the consideration of the data protection disclosures.[46]In coming to a decision on whether the claimant’s automatic unfair dismissal claim was successful, I am required to consider the principal reason for dismissal, that is the reason that operated in the mind of the employer at the time of dismissal (Abernethy). The use of the word “principal” in the legislation denotes that it is the main or dominant reason for dismissal. It is insufficient in an automatic unfair dismissal claim for the disclosure to be a factor or one of the many reasons for dismissal.[47]I considered that while the claimant may have genuinely felt that her employer viewed her as a nuisance for making disclosures about their data breaches, there was insufficient evidence to find that this was the principal reason for her dismissal. It was accepted by the respondent that a number of people on the committee were hostile towards the claimant and it is inferred that this was a result of her making disclosures. I determined that while the disclosures may have been a factor by some committee members in deciding to dismiss the claimant, it was not the principal or dominant reason.[48]The claimant’s claim of automatic unfair dismissal is therefore dismissed. Ordinary unfair dismissal[49]The decision for this head of claim was whether the claimant was unfairly dismissed and if so, the appropriate remedy. In coming to this decision, I must determine whether the dismissal was fair in terms of Section 98 of the ERA.[50]The first issue to consider was the reason for the claimant’s dismissal. It is for the respondent to show the reason for the dismissal, and that it is one of the potentially fair reasons as set out in Section 98 of the ERA. The reason is the set of facts known to the respondent or their beliefs which cause them to dismiss the employee. The question of reasonableness is not considered at this stage.[51]Mrs Benson and Mrs McGhee Eilliott both gave evidence that the reason for the claimant’s dismissal was gross misconduct because she committed a data breach. The alleged data breach occurred when the claimant watched CCTV in the manager’s office with a club member and without having a committee member present. The letter of dismissal confirmed that the claimant was dismissed for “General Data Protection Regulation and CCTV infraction.”[52]I was satisfied that the respondent showed the reason for dismissal was the potentially fair reason of misconduct.[53]I then considered the Burchell test which as outlined above looks at the following three points:(i) Does the respondent believe the employee is guilty of misconduct;(ii) Does the respondent have in it mind reasonable grounds upon which to sustain this belief; and(iii) At the stage the belief was formed, did the respondent carry out as much investigation into the matter as was reasonable in the circumstances.[54]It was not in dispute that that the respondent believed the claimant was guilty of misconduct. This was confirmed by witness evidence and the letter of dismissal.[55]Given the circumstances of this case, I looked at the second and third aspects of Burchell together – whether it was reasonable for the respondent to have that belief and if this belief was reached after reasonable investigation. It is not in dispute that an investigation of the alleged misconduct did not take place. Both Mrs Benson and Mrs McGhee Eliott stated in evidence that if an employee is accused of gross misconduct, there is no need to investigate the allegation. This is entirely incorrect. There is a legal requirement to investigate disciplinary matters. Paragraph 5 of the Acas Code of Practice on Discipline and Grievance states “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case.” No attempts were made to establish the facts here.[56]Mrs McGhee Elliott stated in evidence that as this was such a clear breach of GDPR and this was gross misconduct, no investigation was necessary. This position is not accepted. It was not disputed by the respondent that they had limited knowledge or understanding of GDPR and data protection. Further, neither Mrs McGhee Elliott or Mrs Benson was able to explain clearly what the breach of the GDPR was which they say occurred. Mrs Benson stated that the GDPR breach was when the claimant invited Michaela to watch CCTV “like it were a screening of a night out at the club.” Mrs McGhee Elliott’s evidence was that the claimant viewed the CCTV footage without a committee member present. It was accepted by these witnesses that CCTV footage was previously shown to members in situations where a potential criminal offence occurred. While respondent argued that they required the claimant to have a committee member present when reviewing CCTV, and it was not found that the claimant was informed of this change in approach, this requirement would not make the claimant’s actions of reviewing the CCTV in the absence of a committee member a breach of the GDPR. At most it would be a breach of an internal policy. The same for the suggestion that only staff were permitted in the manager’s office. This again is an internal policy matter rather than a GDPR requirement.[57]The dismissal letter stated “You may look at CCTV if you believe a crime has been committed but for no other reasons.” This suggests the respondent was aware of legitimate and legal circumstances in which the claimant would have reviewed the CCTV. They did not investigate if such circumstances arose. I heard no evidence that once the letter of complaint was read out there was any discussion amongst the committee as to whether there was a valid basis for the claimant to review the CCTV or whether they considering asking the claimant if she had a valid reason for reviewing the CCTV. The alleged data breach was therefore not as clear cut as Mrs McGhee Elliott maintained in evidence. I conclude that it was not reasonable for the respondent to fail to investigate the allegations.[58]Given the wholescale lack of investigation, I also find that the respondent did not have in its mind genuine or reasonable grounds to sustain the belief that the claimant was guilty of gross misconduct. The letter from Mrs Hill outlined that she was told the claimant gave her a nickname while the claimant and another club member, Michaela, were watching CCTV. While evidence was heard from Mrs Benson and Mrs McGhee Elliott that giving Mrs Hill a nickname was inappropriate, the crux of the decision to dismiss was the view, which was reached without any investigation, that the claimant and Michaela watched CCTV together in the office without any legitimate reason to do so. The respondent did not ask the claimant if she reviewed the CCTV on the date in question, why she did so, if Michaela was present, if Michaela was also reviewing the CCTV and if so, why. The letter from Mrs Hill was accepted as fact. The claimant gave evidence that she reviewed the CCTV to check if Michaela’s drink had been tampered with, that she viewed drink tampering as a potential criminal matter and that Michaela could not see the CCTV from where she was standing. The claimant’s evidence, which was unchallenged, is accepted by the Tribunal.[59]In applying the band of reasonable responses approach to whether the respondent had carried out a reasonable investigation and had reasonable grounds for its belief that the claimant was guilty of misconduct, I found that they did not for the reasons outlined above.[60]The next step is to apply the band of reasonable responses test to the decision to dismiss and the procedure by which that decision has been reached. Again, my role is not to substitute my view of the appropriate sanction for that of the employer.[61]I heard evidence that the committee of 12 voted, with ten voting in favour of dismissal and two voting against. I heard no evidence that other lesser sanctions such as warnings were considered. The thrust of the evidence from Mrs Benson and Mrs McGhee Elliott was that this was a fait acompli – a data breach occurred and so dismissal automatically follows. In the absence of an investigation into the allegations and hearing the claimant’s explanation in advance of coming to the decision to dismiss, I find that it was not in the band of reasonable responses to dismiss the claimant.[62]I then considered if the dismissal was fair or unfair in accordance with Section 98(4) of the ERA. It is noted that in determining whether the dismissal was fair or unfair, I have to have regard to the reasons shown by the employer and the answer to that question depends upon whether, in the circumstances (including the size and administrative resources of the employer’s undertaking), the respondent acted reasonably in treating the reason as a sufficient reason for dismissing the employee; and that this should be determined in accordance with equity and the substantial merits of the case.[63]The respondent is a not for profit company. It is run by a committee, currently at a quorum of seven but at the time of dismissal of 12. The committee is made up of lay volunteers. This was emphasised again and again by Mrs Benson and Mrs McGhee Elliott when asked about their understanding of legal matters, whether it be GDPR or employment rights. The respondent has a contract with an external HR company, Croner HR. The respondent issues employment contracts to employees and has an employee handbook with Croner HR branding on it. In 2024, the respondent engaged Croner HR to advise them on a disciplinary matter where the allegation was fraudulent timekeeping. That employee was suspended, the allegations investigated and ultimately no disciplinary action was taken. The same employee was later dismissed for a breach of GDPR. It would appear that the respondent dismissed the employee without applying a fair and reasonable disciplinary process. Croner HR were not contacted for advice or support in respect of the claimant’s dismissal. There was no evidence about why the respondent chose to go ahead with a dismissal of the claimant in the absence of external advice when the committee members as volunteers had limited understanding of employment rights.[64]The respondent’s employee handbook sets out in writing the disciplinary procedure to be followed by the respondent. This broadly aligns with the Acas Code of Practice on Discipline and Grievance. I heard no evidence that the respondent consulted this procedure prior to dismissing the claimant. Rather, the evidence from Ms McGhee Elliot was that this procedure was not relevant in a gross misconduct scenario.[65]It is accepted the respondent is a small organisation without it’s own internal HR resources. However, they cannot abdicate their responsibilities in respect of their employees simply by stating that the decision makers within the organisation are volunteers. As an employer, the respondent has legal responsibilities and obligations towards it’s employees. An employee who is subject to disciplinary process has various rights and the employer has the responsibility to ensure that they are able to exercise those rights. If an employer is unsure of their legal obligations when disciplining and dismissing an employee, they should, at a minimum, find out some information about their legal obligations before making a decision to dismiss. It is not always necessary to pay for this information. While Acas cannot provide advice, they have a wealth of materials available on their website which can be signposted by conciliators which would allow an employer to have a basic understanding of what needs to be done.[66]In this particular case, the claimant was not afforded the following rights:(i) The allegation of misconduct was not investigated;(ii) The allegation was not put to the claimant;(iii) She was not informed that the respondent was considering an allegation of gross misconduct and that dismissal was a likely outcome;(iv) She did not have the opportunity to put across her side before a dismissal decision was made;(v) As no disciplinary hearing was organised, she could not exercise the right to be accompanied;(vi) She was not informed of her right of appeal;(vii) When she attempted to exercise her right of appeal, the respondent did not organise an appeal hearing.[67]These failures go to the very heart of a fair dismissal. The respondent in essence received a complaint about the claimant and without speaking to her at all dismissed her with immediate effect. There can be no clearer failure of Section 98(4).[68]The above aforementioned breaches are also breaches of the Acas Code of Practice on Discipline and Grievance.[69]In conclusion I find the dismissal to be both substantively and procedurally unfair. Wrongful dismissal[70]The claimant’s position on wrongful dismissal was that the respondent failed to follow the procedure as set out in the handbook in dismissing her and that she was dismissed without notice. This was not challenged by the respondent, save as to argue that it was not necessary to follow the procedure in a gross misconduct scenario.[71]A wrongful dismissal claim for a failure to follow a disciplinary procedure is predicated on that disciplinary procedure being a contractual one. The handbook at pg 43 specifically states that the Disciplinary Procedure does not form part of the claimant’s contract.[72]The claimant’s contract of employment confirms that she is entitled to one months’ notice if her service is more than one month but less than five years. The letter of dismissal noted that the claimant’s employment was terminated with immediate effect, due to gross misconduct. It is an accepted legal principle that a finding of gross misconduct allows an employer to dismiss without notice, irrespective of the employment contract.[73]As outlined above, I determined that the respondent did not have a reasonable basis to find that the claimant was guilty of gross misconduct. As such, they do not have a legal basis to dismiss the claimant without notice. Remedy for ordinary unfair dismissal[74]In respect of her successful unfair dismissal claim, the claimant is entitled to a basic award and a compensatory award as per Section 118 of the ERA. The claimant provided a schedule of loss setting out figures of loss. These were not challenged by the respondent. Basic award[75]The claimant was 39 at the time of her dismissal and had 2 complete years of service. Her gross weekly wage was £529.89. Using the formula of a weeks’ pay per completed year of service, the claimant is entitled to a basic award of £1,059.78. Compensatory award[76]The claimant had an immediate period of unemployment until 21 October 2024. Her immediate loss of earnings is for 11 days. Her net weekly pay is £433.32 and so her daily net pay is £86.66. Her immediate loss of earnings is £953.30.[77]The claimant’s new salary is lower than what she was paid by the respondent so has an ongoing loss of earnings of £3,075.84.[78]The claimant also has a loss of pension amounting to £386.28.[79]The claimant also has a loss of statutory rights and is entitled to a payment of £500 to reflect this.[80]The total compensatory award due to the claimant is therefore £4,915.42.[81]The respondent did not make a submission that the claimant failed to mitigate her loss. Given how quickly she found alternative employment, any such submission would not have been accepted in any event.[82]The respondent did not make a submission that there should be a deduction to the basic or compensatory award due to contributory conduct by the claimant which led to her dismissal. Even if such a submission had been made, it is unlikely that it would be accepted, noting that the claimant had a legitimate reason for reviewing the CCTV footage. It is for the Tribunal to assess the culpable nature of the claimant’s behaviour. The Tribunal is not constrained by the respondent’s assessment of the wrongfulness of the claimant’s behaviour (Steen).[83]Further, the respondent did not make a submission that the compensation should have been reduced by reduced by applying a Polkey reduction, on the basis that if fair procedures had been applied, the same outcome would have resulted, namely the claimant’s dismissal.[84]I was not convinced that even if the procedural flaws were remedied, the outcome would have been the same. Had there been an investigation and had the claimant been given an opportunity to speak about the allegations before the decision to dismiss was taken, this may well have led to a different outcome. As a result, I consider that the compensation should not be reduced in these circumstances.[85]I considered that the respondent on the whole failed to apply the Acas Code of Practice on Discipline and Grievance to the claimant’s dismissal. Although a small not-for-profit company with volunteers as decision makers, the respondent had access to external HR advice and had obtained and followed said advice in an earlier disciplinary matter in 2024. When asked by the claimant’s representative if the respondent would accept any allegation by customer as against a staff member and simply dismiss them, giving the example of an allegation of selling drugs, Mrs McGhee Elliott stated that firstly she would look at CCTV to check if this was happening and secondly she would speak to the employee to hear what they had to say. In short, the respondent would investigate a serious allegation and put the allegation to the employee get their response.[86]While it is appreciated that the respondent is a small organisation, I cannot think of a more egregious breach of the Acas Code of Practice than this case. It was a total and wholescale breach. Every aspect of it was departed from. The respondent has been running since in or around the 1970s. Twelve people were involved in the decision to proceed with dismissal in the absence of any procedure. A quick check of the handbook which the respondent had in place would have alerted them to the appropriate procedure to follow. So too a short phonecall to their external HR advisers. I consider that the failure of the respondent in this regard was not inadvertant and while I appreciate this decision was influenced by an earlier respondent decision to dismiss an employee for a data breach without following a procedure, repeating a failure does not excuse it the second time. I consider therefore that the compensatory award should be increased by 25%. 25% of the compensatory award of £4,915.42 is £1,228.85. The total compensatory award therefore amounts to £6,144.27. Remedy for wrongful dismissal[87]The claimant being summarily dismissed was not paid her contractual notice pay which was 1 months’ pay. As her dismissal was found to be unfair, the respondent was not entitled to summarily dismiss her. She is therefore entitled to her notice pay. Her months’ gross pay was £2,296.19. This amount may be subject appropriate deductions to reflect tax and national insurance where relevant.