Ms L McComish v MacKenzie Taylor Asset Management Ltd: 8002140/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002140/2025Venue GlasgowHearing 7 – 9 April 2026 Deliberations: 10 and 13 April 2026
Between
Ms L McComishClaimantMacKenzie Taylor Asset Management LtdRespondent
Before
Employment Judge D HoeyHerself for claimantMr Hardman (instructed by Counsel) for respondentInstructed by Messrs for respondentBurness Paul for respondentDate 17 April 2026
JUDGMENT
The claimant’s dismissal was not unfair and the claim is dismissed.
REASONS
[1]The claimant brought a claim of unfair dismissal. The respondent disputed the claim. The parties had worked together to focus the issues in this case. At the outset of the Hearing the parties agreed what the issues were. The claimant accepted that it was likely that the respondent believed she had been guilty of misconduct, but she disputed that the belief was genuine or honest and she argued the investigation, procedure and decision to dismiss fell outwith the range of reasonable responses[2]At the start of the Hearing I discussed the overriding objective and the need for both parties to work together to assist the Tribunal in ensuring that everything that was done was fair and just with due regard to cost and proportionality. A discussion took place as to how evidence was taken and the importance of ensuring relevant questions were put to each witness to ensure both parties cases were fairly put to each other’s witnesses and that relevant evidence was led. The parties were reminded that the Tribunal would only consider evidence that had been agreed or that was led before it. The parties understood the need to ensure their case was put to each witness and factual disagreements were raised.[3]The parties were also able to agree timing for witnesses and the parties worked together to assist the Tribunal in achieving the overriding objective, in dealing with matters justly and fairly taking account of the issues, cost and proportionality.[4]The Tribunal was able to ensure that that relevant questions were put to each witness and that the claimant’s case was advanced. The claimant is an intelligent and articulate person who was capable of understanding the concepts in this area and of putting her case to the witnesses. Her 11 page detailed submission (which grapples with complicated factual and legal issues) demonstrates the claimant’s skills in this regard.
Evidence
[5]The parties had produced a joint bundle of 523 pages. Regrettably this was single sided and included many documents that were not needed.[6]The Tribunal heard evidence from Mr Canning (the dismissing officer, who was a Director of the respondent), Ms Hadwin (an independent HR professional who was the appeal officer), the claimant and Ms Osborne (a colleague and friend of the claimant). The claimant had provided a written witness statement, with the consent of both parties, which ensured the claimant was able to provide the evidence she wished the Tribunal to take into account. Relevant questions were put to each witness to ensure the parties’ respective cases were tested.
Facts
[7]The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it, both orally and in writing. The Tribunal only makes findings that are strictly necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence led before the Tribunal). The Tribunal only records facts it found as necessary to determine the issues in this case.[8]There were few material facts in dispute in this case and where there was a conflict in evidence, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the case with regard to what was written and said at the time (when viewed in context). The parties had agreed some of the key facts which was of assistance to the Tribunal.
Background
[9]The respondent specialises in independent financial management, acting for individuals and corporate clients. It is a small firm, regulated by the Financial Conduct Authority (“FCA”). It employed five people.[10]Mr Canning was the Managing Director and responsible for the 4 other employees, which included administrators and paraplanners. In 2024 and 2025 Mr Canning sought to sell the business and the sale was completed on 6 February 2026.[11]The claimant commenced employment in September 2009. She transferred to the respondent with effect from 1 December 2010. Her (earlier) start date was recognised for continuous service purposes. The claimant remained in employment until 4 June 2025 when she was dismissed with immediate effect without notice on the grounds of gross misconduct.[12]The claimant was initially employed as an Administrator. As at the time of her dismissal, the claimant was employed as Operations Manager. She reported to Mr Canning and was responsible for ensuring appropriate ethical standards existed within the firm; monitoring and compliance with some operational policies including data protection; financial crime/money laundering procedures; preparation of VAT returns for submission to the accountants; and management of and responsibility for some HR processes and functions.[13]The claimant held FCA Senior Management Functions relating to Compliance and Money Laundering. This required the claimant to be subject to a continuing FCA "fitness and proprietary" person test which consists of three main elements, one of which is a test of honesty, integrity, and reputation. Both Mr Canning and the claimant were subject to continuing FCA “fitness and proprietary” person test which consists of three main elements, one of which is a test of honesty, integrity, and reputation.[14]The claimant believed Mr Canning had promised her a shareholding in the business and a dispute arose as to her entitlement in that regard. The claimant was upset by this disagreement. The claimant was concerned about the refusal to confirm what she believed her entitlement to be in writing given the business was likely to be sold. She had taken ad hoc advice from a solicitor who had advised the claimant and assisted her.[15]From around February 2025 Mr Canning began to have concerns about the claimant's conduct at work. These concerns included the way in which the claimant was conducting herself in the office (particularly towards Mr Canning), as well as her behaviour in the context of the proposed sale of the business which was highly confidential. This change in behaviour stemmed from the claimant’s belief that Mr Canning had not given to her what she believed she had been promised and her firm belief Mr Canning had not been honest. The claimant was unable to work with him and wished to protect her position (which she did by seeking advice and keeping a note of events).[16]Mr Canning was particularly concerned about the claimant's use of confidential information obtained about the proposed sale, threats to approach the potential buyer and her subsequent approach to the buyer. Given the business was a small business, Mr Canning retained HR consultants who assisted him in dealing with his concerns. Mr Canning decided that a formal disciplinary investigation was necessary in respect of the claimant’s conduct at work. Suspension and investigation[17]On 8 April 2025 the claimant was suspended (on full pay) while the disciplinary investigation was undertaken. This was confirmed to the claimant by letter dated 8 April 2025. The suspension letter noted that the suspension was to allow an investigation to take place in relation to potential breach of confidence, loss of trust and breakdown in the working relationship but that the allegations would be confirmed once the investigation was completed. The letter stated that the claimant was not to carry out any work nor use any work equipment without consent. Mr Canning sought input from an independent forensic lT experts, one in relation to a computer and another in relation to a mobile phone, as part of the investigation to understand what the claimant had done while at work. The investigation revealed that the claimant had obtained, copied and disclosed confidential information and had also deleted material which could not be recovered. Disciplinary hearing and outcome[18]The respondent wrote to the claimant by letter dated 14 May 2025 informing her that she was being invited to attend a disciplinary hearing. The letter ran to 5 pages and set out at length the allegations and enclosed the paperwork that was relied upon.[19]The allegations the claimant faced were: interference and deletion of date from a work phone despite an instruction not to do so; illegally accessing Mr Canning’s computer from his office and taking a picture of a confidential document; Unauthorised and deliberate access to and use and disclosure of sensitive and confidential information in connection with Mr (and Mrs) Canning’s personal income (which the claimant had sent to her personal account); Unauthorised and deliberate access to and use and disclosure of sensitive and confidential information relating to the potential sale of the business (and sending information to a colleague); disclosure and use of highly sensitive company information for private purposes and/or personal gain; collusion with staff members; inappropriate threats to contact the potential buyer (and revealing information to third parties and by actually approaching the potential buyer)’; negligence as to fling of compliance documents and disclosure of company documents and inappropriate and unprofessional workplace conduct.[20]Details in relation to the allegations was provided with copies of the documents relied upon included. The letter stated that in light of the seriousness of the allegations, if any one was substantiated, that could amount to gross misconduct and dismissal could be a possible outcome.[21]The claimant attended the disciplinary hearing on 26 May 2025 and the hearing was chaired by Mr Canning. The claimant was accompanied by her friend and colleague Ms Osborne. While Ms Osborne was not a work colleague (having recently left her employment) or relevant trade union (as required in terms of section 10 of the Employment Relations Act 1996), the respondent permitted her to accompany the claimant to ensure she was accompanied. Mr Canning had taken advice. As the business was a small business he could not involve any other employee and decided that he would deal with the disciplinary hearing. A retired HR professional took notes.[22]The claimant put forward her position at the disciplinary hearing in relation to the allegations against her. The disciplinary hearing was adjourned to allow Mr Canning to consider the position. During the adjournment, Mr Canning considered the information before him and the representations that had been made by the claimant.[23]Mr Canning decided the claimant had been guilty of gross misconduct and dismissal was the appropriate sanction. His decision was communicated in an 8 page letter dated 4 June 2025. Mr Canning stated that the first 6 allegations that were set out in the invite letter individually amounted to gross misconduct, with the remaining 3 allegations being considered misconduct. Having considered all the circumstances he decided that summary dismissal was the appropriate sanction given the claimant’s conduct.[24]The first allegation was that the claimant had interfered with and delated data from her work phone. The claimant had admitted to deleting certain things from the device. Some of the information that had been deleted was confidential information and deletion of information had hampered the investigation. The claimant had deleted the WhatsApp application, the camera app and photos and files (which included work related matters including photographs taken of Mr Canning’s computer screen, a photograph of email passwords, an email sent to the claimant’s solicitor containing confidential information related to the company which had also been sent to a family friend).[25]The claimant had argued a number of personal items were on the phone and that there was no client data involved. The claimant said she had not deleted all data. Mr Canning noted that the claimant had understood that she had been told not to use the work device during her suspension but she had contravened that instruction and deleted the foregoing material. He concluded that by deleting data she had significantly hampered the investigation and the ability of the company to understand the full extent of any irregularity. He regarded the claimant’s conduct as gross misconduct.[26]The second allegation was that the claimant had illegally accessed Mr Canning’s computer and taken pictures of confidential information from the screen. While the claimant initially denied doing so, she accepted she had taken a photograph of an email which had been on the screen of Mr Canning’s computer. The claimant had since deleted the material. At the hearing the claimant argued the allegation should not be upheld because her conduct had not been illegal. The claimant had been in Mr Canning’s office and noticed that his computer screen was “live”. She viewed the screen and saw that an email from his solicitor was open. She read this and noticed it was about the potential sale of the business. She took a picture of the screen and then scrolled down to take a second picture of the remainder of the email. The communication was private and legally privileged.[27]Mr Canning concluded that the claimant must have read the material on his computer since she had scrolled down and taken a second photograph. The claimant accepted that the information was confidential and privileged and related to potential sale of the business. She argued that she had not taken any other confidential information but as data had been deleted from her device, it was not possible to confirm this was accurate. The claimant was also a senior employee and was aware of the rules as to confidentiality and security of information. The claimant was guilty of gross misconduct.[28]The third allegation was that the clamant had unauthorised and deliberate access to and used and disclosed confidential information relating to Mr and Mrs Canning’s personal affairs. The claimant accepted she had made a spreadsheet of the personal information and sent it to her personal email account. The claimant argued she had needed the information for a VAT return but the information was not needed for that return. She admitted having sent the information to her personal email account. She had not shared it with anyone and had not deleted the material and conceded she did not have authorisation to use the information.[29]Mr Canning concluded that there was no reasonable or justifiable explanation as to why the claimant would have created a separate spreadsheet with the personal financial information from him and his wife and why the claimant would send that spreadsheet to her own private email account. The claimant’s conduct amounted to gross misconduct.[30]The fourth allegation was unauthorised and deliberate access to and use and disclosure of sensitive and confidential information relating to the potential sale of the business and use of such information for private purposes and/or personal gain. The claimant had admitted to creating a note of sensitive information about the business and having passed this to a colleague and her solicitor and a friend of a family member. The claimant had also admitted the blind copying emails that contained confidential information to a family member (a friend of her father).[31]The claimant had initially denied sending the information to anyone other than her solicitor but conceded that she had sent it to a family friend, whom she had intended to call as her companion (but did not do so). Mr Canning noted that the disclosure of information by the claimant had taken place before the disciplinary investigation had been initiated and that the claimant had done so for her own benefit (to support her position). He concluded that the claimant’s actions were wholly unacceptable and could have risked the sale of the business. She had sent confidential information to a colleague and friend of a family member, without consent. Her conduct amounted to gross misconduct.[32]The fifth allegation was that the claimant colluded with staff members during working hours. While initially denying having done so, the claimant admitted to disclosing confidential material to Ms Osborne, who was a colleague of the claimant (and who left the business). Mr Canning concluded that the claimant had been disclosing confidential information to Ms Osborne.[33]Mr Canning concluded that the claimant had conceded that she had shared the Note as to things that had happened with Ms Osborne. That involved the claimant sharing confidential information with her colleague. The claimant had argued that she had been taking a note in the event that disciplinary proceedings were initiated but Mr Canning did not consider that explanation to be credible. Mr Canning also noted the large amount of calls that took place as between the claimant and Ms Osborne which took place when relevant communications had been issued.[34]The sixth allegation was to inappropriately threaten and carry out a threat to contact the potential buyer of the business for her own purposes. The claimant accepted she had contacted the buyer but argued that she had not done so as an employee. That was not accepted by Mr Canning who believed the claimant had used information gained during her employment to contact the potential buyer. Mr Canning concluded this was gross misconduct.[35]The seventh allegation was negligent filing of compliance documents. The eighth allegation was disclosure of an internal document and the final allegation was inappropriate conduct in the workplace on 19 and 20 March 2025. The claimant had accepted she had left the office early on 19 March 2025 without authorisation and on 20 March 2025 the claimant had raised her voice. Mr Canning concluded that these 3 allegations amounted to misconduct but not gross misconduct[36]Mr Canning did not find the claimant’s explanations to be credible and took into account the claimant’s senior role in the business and the requirement for integrity and trust. He noted the claimant had sought to justify her behaviour and conduct. He concluded there would be a risk of repetition had she remained in post. He decided that gross misconduct was an appropriate outcome, trust and confidence having been destroyed. She was advised of the right to appeal. Appeal against dismissal[37]The claimant appealed the decision by letter dated 13 June 2025. She raised 5 grounds of appeal – 2 points raised at the hearing were not included in the original invite letter, the majority of findings were based on assumptions not facts, there were some irregularities in the notes taken, questions listed on the notes had been manipulated and there was no contract of employment to which reference had been made.[38]An appeal hearing took place on 16 July 2025.It was chaired by Ms J Hadwin (an independent HR consultant whom the respondent elected to appoint, having taken a recommendation from the respondent’s large solicitors). Ms Hadwin was entirely independent. The claimant was accompanied at this meeting by Ms Osborne. Ms Hadwin took a note of the hearing and this was agreed by the claimant.[39]Ms Hadwin followed up the points raised by the claimant and interviewed Mr Canning and spoke to the note taker from the original hearing. She wrote to the claimant by letter dated 13 August 2025 explaining her decision which was to refuse the appeal.[40]Ms Hadwin stated that she was an independent HR consultant and had not worked for the respondent and had no personal connections with the respondent or its management. She noted that the claimant had been dismissed for 6 counts of gross misconduct. The claimant had read from a preprepared statement at the appeal. Ms Hadwin considered each of the points made in light of the evidence that had been presented, points raised by the claimant and the outcome letter.[41]In relation to the first ground of appeal, the claimant had argued that 2 of the points raised at the hearing had not been included in the invite letter. These points were that the claimant had used Mr Canning’s password to access his computer and telephone contact between the claimant and Ms Osborne. Ms Hadwin noted that the allegation in question was that the claimant had “illegally accessed Mr Canning’s computer”. The claimant had known that she had the passwords and had taken a screenshot of them. This was not therefore new information. Ms Hadwin also concluded that while telephone traffic between her and Ms Osborne was not explicitly set out in the invite letter, the allegation related to collusion between the claimant and staff members which was the basis for the information presented.[42]Ms Hadwin noted that the claimant had been given the opportunity to present her response to each allegation in detail, including the points raised upon appeal. The claimant’s position had been fully taken into account and she had not been prejudiced and as a result the first ground was not upheld.[43]The second ground of appeal was that the majority of the findings were based on assumptions and not facts The claimant’s written statement had dealt with this, noting the allegation she had used Mr Canning’s password to access his computer, that she had used her phone in breach of an instruction, deleted all data and been colluding with staff was based on assumptions. Ms Hadwin considered the notes from the disciplinary hearing and the outcome letter and documents and points made during the appeal process. The claimant had argued that the allegations had not been established since Mr Canning had proceeded upon his assumptions rather than facts.[44]Ms Hadwin confirmed there was no evidence proving beyond doubt Mr Canning’s password had been used but she was satisfied the conclusion reached was reasonable from the information available. It was reasonable and fair for Mr Canning to have reached the conclusion he did from the material before him.[45]Ms Hadwin noted that the claimant had been told not to communicate with any staff while suspended and not use work equipment without permission. She concluded that the deletion of files was in breach of the instruction. The claimant accepted she had deleted some data from the device, which included work documents. The respondent had therefore reached a reasonable conclusion in relation to that allegation.[46]Finally she concluded that it was reasonable for Mr Canning to conclude that the claimant had colluded with Ms Osborne given the amount of calls and for the reasons set out in the dismissal letter.[47]Ms Hadwin considered that the respondent had a genuine and reasonable belief based upon a reasonable investigation that the claimant was guilty of the allegations set out for the reasons given. The decision was based upon facts and not assumptions given the evidence obtained and material before Mr Canning and as such the second ground of appeal was not upheld. The investigation that had been carried out had provided material on which it was reasonable for Mr Canning to have reached the conclusions he did on the material points for each allegation for the reasons he had given in his outcome letter. The points the claimant had raised did not alter the outcome of each allegation from the information presented.[48]The third ground of appeal was that there were irregularities in the meeting notes. While the notes were not verbatim notes, they accurately reflected the discussion that took place. They paraphrased some of the discussion. The differences raised were typical of the differences one would expect when different parties take notes of the same event and there was nothing “significantly unsound or misleading”. She also noted the claimant had not raised any concerns having received the notes. This ground was not upheld.[49]The fourth ground of appeal was that questions had been manipulated on the notes. The claimant’s companion had said that the notes were “a condensed version of those in the notes”. Ms Hadwin reviewed the position and spoke with Mr Canning and the note taker and concluded that the notes were not verbatim and did paraphrase but the questions noted were asked. The notes were accurate and there was no manipulation. The decision had not been materially affected by the issues arising and as a result that ground was not upheld.[50]The final ground of appeal was that there was no contract of employment. Ms Hadwin did not consider the claimant’s contract to have had a material influence upon the decision to dismiss but she considered the matter nonetheless. She noted that Mr Canning had only discovered the claimant’s position on 24 March 2025. A solicitor had been engaged a number of years ago to prepare contracts and the copy on file had, he believed, been issued to the claimant. Given the contract had not been relied upon in respect of the allegations, the point was not relevant.[51]Ms Hadwin considered a number of additional points the claimant had raised at the appeal hearing. The first point was that the claimant believed she had been dismissed because of the shareholding dispute. She believed the decision had been predetermined. The shareholding issue was being determined in a separate case. Ms Hadwin considered all the material before her and concluded that the claimant’s dismissal was solely related to the claimant’s conduct and not related to the shareholding dispute. The evidence clearly showed behavioural and conduct issues which had led to the trust and confidence required being destroyed.[52]Ms Hadwin took account of the claimant’s explanations for her actions (such as in relation to taking pictures of Mr Canning’s computer screen, keeping records of personal income, forwarding documents to her personal email address and sharing information with a family friend). The claimant said she had felt frustrated that Mr Canning had not given her what she believed was rightfully hers (in terms of a shareholding) and she said she was becoming “increasingly frustrated” which was why she said she had breached confidentiality. Ms Hadwin concluded the claimant’s explanation did not lessen the impact or severity of the claimant’s actions which had demonstrated a fundamental breach of trust. The claimant had been unable to see how serious her actions were (and had focused upon her own position and not how her actions had caused the relationship to break down, trust having been destroyed).[53]Ms Hadwin also noted the claimant said she had not signed an NDA nor been asked to but the claimant ought to have known the information she shared was confidential and should not have been shared.[54]Ms Hadwin took a step back to check the decision that was taken was fair and reasonable from the information before the respondent at the time. She concluded that the decision to dismiss was appropriate in the circumstances taking account of the claimant’s level of seniority and the fact her role provided her with access to highly confidential information and that she worked in a highly regulated industry. Certain allegations on their own would have been sufficient to have found gross misconduct which would have justified summary dismissal. The cumulative impact of the allegations justified dismissal. It was clear that the relationship had broken down, there having been a complete breakdown of trust. The claimant’s appeal was accordingly dismissed and her summary dismissal stood. Observations on the evidence[55]The Tribunal considered the evidence carefully and in context of all the evidence, both in writing and that presented orally.[56]Mr Canning gave his evidence in a measured and careful way. It was clear that there was a dispute with the claimant and a resolution had not been achieved. He had worked hard with the claimant and others to build the business and initially the relationship with the claimant and others had been good and worked well. When the sale was being considered and the claimant did not secure what she believed she was due, the working relationship broke down. It was clear that the claimant was extremely unhappy with Mr Canning and she did not trust him. As a result she changed the way in which she worked for him. The difficulty was that she was an employee of the business and Mr Canning was a director and her line manager. The claimant was unable to work with him. The working relationship became difficult.[57]Mr Canning found it difficult to deal with the change in the claimant’s approach to her work. The shareholding dispute had not been resolved and the claimant was unable to disentangle that from her work. Mr Canning had to work with the claimant. When it became clear that the working relationship was not operating normally and in Mr Canning’s view the claimant’s behaviour had become unprofessional, he took advice. It was a small business but Mr Canning did seek a resolution that was fair. Despite the claimant’s suggestion that the outcome of the process was predetermined, it was clear that Mr Canning wished a fair resolution. He instructed HR professionals and independent experts to obtain the relevant information and at the appeal stage he identified an independent appeal officer (via his large firm of solicitors).[58]Mr Canning approached the disciplinary process genuinely and fairly. While the working relationship appeared to have broken down, he wished to ensure the claimant was given a fair chance to set out her position. He had not reached any conclusion but instead secured the evidence and gave the claimant the chance to respond to it. He reached a decision based on the information before him. His outcome letter was detailed and clear. The appeal process was remitted to an independent third party expert which underlined Mr Canning’s desire to ensure a fair process was followed. For the purposes of contribution, I accepted that the claimant had been responsible for the conduct relied upon that led to the dismissal.[59]Ms Hadwin was an independent HR consultant with many years experience in the industry. She was an impressive witness who was professional in her approach. The claimant had identified material from the internet which the claimant believed demonstrated bias but it was clear that the information was not accurate (and may have been related to a different person). Contrary to what the claimant believed, Ms Hadwin had been located via the respondent’s solicitors and had no connection with the respondent. She was genuinely independent and dealt with matters entirely separately from Mr Canning and the respondent. She considered matters afresh and from her own independent professional perspective.[60]Ms Hadwin was clear and careful to consider the points the claimant raised. She considered all the material before the respondent and the points the claimant raised. The claimant was unable to see beyond the shareholding dispute and accordingly viewed Mr Canning’s response and outcome through that lens. Ms Hadwin was able to bring objectivity to the process. It was notable that she had concluded from an independent and objective standpoint that many of the allegations by themselves amounted to gross misconduct.[61]The claimant was intelligent and articulate. She had worked hard and seen the business prosper. She had played an important part in developing the business and made decisions which supported Mr Canning as he developed the business. The claimant genuinely and firmly believed that she had been promised a shareholding and sought to secure what she believed she had been told in writing from Mr Canning. Mr Canning disputed the position. The claimant believed her future was being imperilled as the shareholding which she believed she had been promised would have given her financial security. The decision of Mr Canning not to confirm matters created substantial uncertainty for the claimant and she had clearly lost all trust in Mr Canning.[62]The difficulty that this created, however, was that the claimant was unable to view matters objectively. She was a senior member of staff. She understood the importance of confidentiality. She was, however, unable to work with Mr Canning and viewed any interaction with him through the prism of disbelief. She no longer trusted him and was unable to work with him. She wished to protect her position. Regrettably that resulted in the claimant taking steps to protect her position without fully considering the consequences of her actions. This resulted in the claimant using confidential information and acting in a way that was not acceptable in the workplace and which was gross misconduct.[63]The claimant believed that Mr Canning’s behaviour and approach was responsible for her actions. Her written witness statement focused on how she perceived Mr Canning’s behaviour and approach without appreciating the impact or gravity of her actions. Unsurprisingly given the challenges facing the claimant and her perception, she was unable to view matters objectively or to pause to reflect in relation to how her behaviour would be viewed. Most of the claimant’s challenges were in relation to alleged connections and the unfairness as to the process and people. Hence the claimant found material online which she believed showed the appeal officer was connected to the respondent which she argued showed the appeal process (and her dismissal) to be unfair. That material was not accurate and there was no such connection. Similarly the claimant relied upon the distant familial link the note taker at the disciplinary process had to argue the process was unfair, despite the fact the notetaker made no material decisions in the process and the notes were broadly accurate (a matter the claimant’s companion confirmed)..[64]This lack of focus on the substance continued in relation to the allegations. This was not surprising given the allegations were detailed and often contained a number of different elements. The allegations were extremely serious. In reality the claimant admitted to many of the acts in question but sought to dispute many of the subsidiary points. This lack of focus was underpinned by the claimant’s deep distrust of Mr Canning and her inability to disentangle her employment position from her perceived entitlement to a shareholding. The claimant had been unable to see the seriousness of her actions, particularly with regard to the viewing of the email on Mr Canning’s computer and then taking a photograph of it. This was extremely serious given the email was confidential and legally privileged. The claimant believed, however, the email was important to protect her position. She had placed her interests above those of her employer and was again unable to see how her behaviour would be viewed objectively. Her focus on how she perceived Mr Canning had treated her (with the impact upon her) resulted in her being unable to appreciate the seriousness of her behaviour.[65]Ms Osborne was a close friend of the claimant. She had also worked for the respondent for around 10 years. She viewed the deterioration of the working relationship between the claimant and Mr Canning. As she was a friend of the claimant, she believed the information the claimant had communicated to her without question. She believed that the claimant had been correct in her assertion as to a shareholding and believed what the claimant had told her as to Mr Canning’s position. That, however, was not how Mr Canning viewed matters and resulted in Ms Osborn’s perception being skewed accordingly.[66]Ms Osborne had intended to work with Mr Canning until the business had been sold but she did not wish to work for a larger company and secured employment with a smaller business. She clearly was unhappy with what she saw as Mr Canning’s behaviour, which had been explained to her by the claimant. She had taken notes of a meeting in which she believed an indirect threat had been made by Mr Canning but had not noted the alleged threat. This was not a material issue for the purposes of the claim (and was not properly put to Mr Canning in cross examination) and the dispute is not one which I require to resolve. It shows, however, that Mr Canning did try and resole the dispute with the claimant and made an offer, via Ms Osborne, which the claimant rejected. From Ms Osborne’s evidence it was clear that the fact Mr Canning made an offer was evidence of his desire to resolve matters and move on. The fact he indicated that steps would have to be taken absent a resolution was reflective of what required to be done. Absent a resolution, matters required to be dealt with properly and fairly. The interpretation Ms Osborne and the claimant placed upon that as a threat was not the only natural interpretation of what had happened (and was emblematic of the claimant’s skewed interpretation of all interactions with Mr Canning). It was also notable that Ms Osborne could not recall having been given any confidential information from the claimant despite having attended the disciplinary and appeal hearing when those matters were discussed.[67]With regard to general observations, the claimant noted in her written submission that there was contradictions within correspondence and the evidence and such matters affect credibility. I have taken time to consider the communications that were issued at the time and the evidence led before this Tribunal. The issues in this case have broadly been capable of being determined from the material that was presented at the time, principally the dismissal letter, the claimant’s response and the appeal outcome. The claimant disagreed with the decision and presented her position in detail which has been taken into account. From that material it was clear that the claimant had accepted to having carried out the acts relied upon, while disputing how those acts are to be characterised. I have taken careful account of the claimant’s position and looked at the context in reaching my decision.[68]The claimant also argued that the approach to witnesses was different. She argued that when Mr Canning was not able to recall ammeters that was “accepted without challenge” but when Ms Osborne was unable to recall, that was used to “attack her credibility entirely”. That is not a fair summary of the position. The giving of evidence is not a memory test and it is common (and expected) that witness memory is not perfect. The explanations the witnesses gave was fully taken into account and tested against the contemporaneous documents and surrounding evidence. Law – Unfair dismissal[69]The Tribunal has to decide whether the employer had a reason for the dismissal which was one of the potentially fair reasons for dismissal within section 98(1) and (2) of the Employment Rights Act 1996 and whether it had a genuine belief in that reason. One of the potentially fair reasons is for matters relating to “conduct”. The burden of proof here rests on the respondent who must persuade the Tribunal that it had a genuine belief that the employee committed the relevant misconduct and that belief was the reason for dismissal.[70]Once an employer has shown a potentially fair reason for dismissal within the meaning of section 98(2), the Tribunal must go on to decide whether the dismissal for that reason was fair or unfair which involves deciding whether the employer acted reasonably or unreasonably dismissing for the reason given in accordance with section 98(4).[71]Section 98(4) provides that the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): “Depends on whether in the circumstances (including the size and administrative rescores 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.”[72]What a Tribunal must decide is not what it would have done but whether the employer acted reasonably; Grundy (Teddington) Ltd v Willis HSBC Bank Plc (formerly Midland Bank plc) v Madden 2000 ICR 1283. It should be recognised that different employers may reasonably react in different ways and it is unfair where the conduct or decision making fell outside the range of reasonable responses. The question is not whether a reasonable employer would dismiss but whether the decision fell within the range of responses open to a reasonable employer taking account of the fact different employers can equally reasonably reach different decisions. This applies both to the decision to dismiss and the procedure adopted.[73]Mr Justice Browne-Wilkinson in his judgement in Iceland Frozen Foods Ltd v Jones, in the Employment Appeal Tribunal, summarised the law. The approach the Tribunal must adopt is as follows: “The starting out should always be the words of section 98(4) themselves. In applying the section, a Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Tribunal) consider the dismissal to be fair. In judging the reasonableness of the employer’s conduct, a Tribunal must not substitute its decision as to what was the right course to adopt. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct in which the employer acting reasonably may take one view, another quite reasonably take another. The function of the Tribunal, as an industrial jury, is to determine whether in the circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which the reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair, it is falls outside the band it is unfair.”[74]In terms of procedural fairness, the (then) House of Lords in Polkey v AE Dayton Services Ltd 1988 ICR 142 firmly establishes that procedural fairness is highly relevant to the reasonableness test under section 98(4). Where an employer fails to take appropriate procedural steps, the Tribunal is not permitted to ask in applying the reasonableness test whether it would have made any difference if the right procedure had been followed. If there is a failure to carry out a fair procedure, the dismissal will not be rendered fair because it did not affect the ultimate outcome; however, any compensation may be reduced. Lord Bridge set out in this case the procedural steps which an employer in the great majority of cases will be necessary for an employer to take to be considered to have acted reasonably in dismissing: ”in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.”[75]Where the employer relies on conduct as the fair reason for dismissal, it is for the employer to show that misconduct was the reason for dismissal. According to the Employment Appeal Tribunal in British Home Stores v Burchell 1980 ICR 303 the employer must show: 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. The employer need not have conclusive evidence of misconduct but a genuine and reasonable belief, reasonably tested. The burden of proof is on the employer to show a fair reason but the second stage of reasonableness is a neutral burden. The Tribunal must be satisfied that the employer acted fairly and reasonably in all the circumstances in dismissing for that reason, taking account of the size and resources of the employer, equity and the substantial merits of the case.[76]In Ilea v Gravett 1988 IRLR 487 the Employment Appeal Tribunal considered the Burchill principles and held that those principles require an employer to prove, on the balance of probabilities that he believed, again on the balance of probabilities, that the employee was guilty of misconduct and that in all the circumstances based upon the knowledge of and after consideration of sufficient relevant facts and factors he could reasonably do so. In relation to whether the employer could reasonably believe in the guilt, there are an infinite variety of facts that can arise. At one extreme there will be cases where the employee is virtually caught in the act and at the other extreme the issue is one of pure inference. As the scale moves more towards the latter, the matter arising from inference, the amount of investigation and inquiry will increase. It may be that after hearing the employee further investigation ought reasonably to be made. The question is whether a reasonable employer could have reached the conclusion on the available relevant evidence.[77]In that case the Employment Appeal Tribunal upheld the Tribunal which found that the employer had not investigated the matter sufficiently and therefore did not have before them all the relevant facts and factors upon which they could reasonably have reached the genuine belief they held. The sufficiency of the relevant evidence and the reasonableness of the conclusion are inextricably entwined.[78]The amount of investigation needed will vary from case to case. In Gray Dunn v Edwards EAT/324/79 Lord McDonald stated that “it is now well settled that common sense places limits upon the degree of investigation required of an employer who is seized of information which points strongly towards the commission of a disciplinary offence which merits dismissal.” In that case the Court found that further evidence would not have altered the outcome as the employer had shown that they would have taken the same course even if they had heard further evidence. That was a case which relied upon the now superseded British Labour Pump v Byrne 1979 IRLR 94 principle but emphasises that the amount of investigation needed will vary in each case. Thus in RSPB v Croucher 1984 IRLR 425 the Employment Appeal Tribunal held that where dishonest conduct is admitted there is very little by way of investigation needed since there is little doubt as to whether or not the misconduct occurred.[79]A Tribunal in assessing the fairness of a dismissal should avoid substituting what it considers necessary and instead consider what a reasonable employer would do, applying the statutory test, to ensure the employer had reasonable grounds to sustain the belief in the employee’s guilt after as much investigation as was reasonable was carried out. In Ulsterbus v Henderson 1989 IRLR 251 the Northern Irish Court of Appeal found that a Tribunal was wrong to find that in certain circumstances a reasonable employer would carry out a quasi-judicial investigation with confrontation of witnesses and crossexamination of witnesses. The court emphasised that the employer need only satisfy the Tribunal that they had reasonable grounds for their beliefs.[80]In considering the procedure, a Tribunal should apply the range of reasonable responses test and not what it would have done (see Sainsburys v Hitt 2003 IRLR 23).[81]The Court in Babapulle v Ealing 2013 IRLR 854 emphasised that a finding of gross misconduct does not automatically justify dismissal as a matter of law since mitigating factors should be taken into account and the employer must act reasonably. Length of service can be taken into account (Strouthous v London Underground 2004 IRLR 636).[82]In considering a claim for unfair dismissal by reason of conduct, the Tribunal is required to consider the terms of the ACAS Code of Practice on Disciplinary and Grievance matters. This sets out what a reasonable employer would normally do when considering dismissal by reason of conduct. This includes conducting the necessary investigations, inviting the employee to a meeting, conducting a fair meeting, issuing an outcome letter and allowing an appeal.[83]The reasonableness of the decision to dismiss is scrutinised at the time of the final decision to dismiss – at the conclusion of the appeal process (West Midland v Tipton 1986 ICR 192). This was confirmed in Taylor v OCS 2006 IRLR 613 where the Court of Appeal emphasised that there is no rule of law that only a rehearing upon appeal is capable of curing earlier defects (and that a mere review never is). The Tribunal should consider the disciplinary process as a whole and apply the statutory test and consider the fairness of the whole disciplinary process. If there was a defect in the process, subsequent proceedings should be carefully considered. The statutory test should be considered in the round.[84]Section 98(4)(b) requires tribunals to determine the reasonableness of a dismissal ‘in accordance with equity and the substantial merits of the case’. Equity, in this context, is equivalent to ‘fair play’. As Lord Simon stated in W Devis and Sons Ltd v Atkins 1977 ICR 662 ‘the reference to “equity and the substantial merits of the case” merely shows that the word “reasonably” is to be widely construed’. Basic award[85]This is calculated in a similar way to a redundancy payment. The basic award is subject to reduction where the conduct of the employee 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 do so (section 122(2) Employment Rights Act 1996). Compensatory award[86]This must reflect the losses sustained by the claimant as a result of the dismissal. In respect of this award it may be appropriate to make a deduction under the principle derived from the case of Polkey, if it is held that the dismissal was procedurally unfair but a fair dismissal would have taken place had the procedure followed been fair. That was considered in Silifant v Powell [1983] IRLR 91, and in Software 2000 Ltd v Andrews [2007] IRLR 568, although the latter case was decided on the statutory dismissal procedures that were later repealed. The case of Ministry of Justice v Parry [2013] ICR 311 is relevant too. The Tribunal must consider all the circumstances in deciding whether it is able to assess the chance of a fair dismissal (see Frew v Springboig St John’s School UKEATS/0052/10). Further, if an employer wishes to advance a Polkey argument, it should be supported by evidence (Compass v Ayodele [2011] IRLR 802). Reduction of the awards[87]The Tribunal may separately reduce the basic and compensatory awards under sections 122(2) and 123(6) of the Act respectively in the event of contributory conduct by the claimant but the tests are different.[88]Guidance on the amount of compensation was given in Norton Tool Co Ltd v Tewson [1972] IRLR 86. In Nelson v BBC (No. 2) [1979] IRLR 346 it was held that in order for there to be contribution the conduct required to be culpable or blameworthy and included “perverse, foolish or if I may use a colloquialism, bloody minded as well as some, but not all, sorts of unreasonable conduct.” Guidance on the assessment of contribution was also given by the Court of Appeal in Hollier v Plysu Ltd [1983] IRLR 260, which referred to taking a broad, common sense view of the situation, in deciding what part the claimant’s conduct played in the dismissal. The Employment Appeal Tribunal proposed contribution levels of 100% (employee wholly to blame), 75% (employee mainly to blame), 50% (employee and employer equally to blame) and 25% (employee slightly to blame). That was not, however, specifically endorsed by the Court of Appeal and there is no reason a Tribunal has to follow these guidelines as they are a matter of common sense. The more serious and obviously 'wrong' an employee's conduct, the higher the deduction is likely to be.[89]A Tribunal should also consider whether there is an overlap between the Polkey principle and the issue of contribution (Lenlyn UK Ltd v Kular UKEAT/0108/16).[90]Thus, if the Tribunal finds that the employee has, by any action, caused or contributed to his dismissal, it shall reduce the amount as it considers just and equitable. There need be no causal connection between the dismissal and the conduct when a Tribunal considers a reduction to the basic award.[91]A deduction for contributory fault under s 123(6) can be made only in respect of conduct that persisted during the employment and which caused or contributed to the employer's decision to dismiss. It follows that the employee's conduct must be known to the employer prior to the dismissal.[92]In Nelson v BBC (No 2) [1979] IRLR 346 the Court of Appeal said that three factors must be satisfied for the tribunal to find there to be contributory conduct. The first of these is that the conduct must be culpable or blameworthy. The second is that it must have caused or contributed to the dismissal. The third is that it must be just and equitable to reduce the award by the proportion specified.[93]In Steen v ASP Packaging Ltd [2014] ICR 56 (Langstaff P presiding) the Employment Appeal Tribunal stated that the application of those sections to any question of compensation arising from a finding of unfair dismissal requires a Tribunal to address the following:(1) it must identify the conduct which is said to give rise to possible contributory fault;(2) having identified that it must ask whether that conduct is blameworthy—the answer depends on what the employee actually did or failed to do, which is a matter of fact for the Tribunal to establish and which, once established, it is for the Tribunal to evaluate;(3) the Tribunal must ask for the purposes of section 123(6) of the Employment Rights Act 1996 if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did cause or contribute to the dismissal to any extent then the Tribunal moves on to the next question;(4) this is to what extent the award should be reduced and to what extent it is just and equitable to reduce it. It will likely be an error of law if the Tribunal simply states its conclusion as to contributory fault and the appropriate deduction for it without dealing with these four matters. The court said that there is no need to address these matters at any greater length than is necessary to convey the essential reasoning and of its nature a particular percentage or fraction by which to reduce compensation is not susceptible to precise calculation but the factors which held to establish a particular percentage should be, even briefly, identified.[94]In Steen a finding of 100% contributory conduct was said to be an unusual finding but a permissible finding. A Tribunal should not simply assume that because there is no other reason for the dismissal therefore 100% contributory fault is appropriate. See Notaro Homes Ltd v Keirle [2024] EAT 122. It may be the case but the percentage might still require to be moderated in the light of what is just and equitable: see Lemonious v Church Commissioners UKEAT/0253/12.[95]In terms of section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, if an employer unreasonably fails to comply with the ACAS Code the compensatory award can be increased by up to 25%. If an employee has unreasonably failed to comply with the Code, the compensatory award can be reduced by up to 25%. The Employment Appeal Tribunal has held that the Tribunal take into account the absolute value of any uplift, rather than just the percentage value (see Acetrip Ltd v Dogra UKEAT/238/18).[96]If a claimant has received certain benefits, including Job Seeker’s Allowance (as in this case), the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply. This means that the respondent must retain a portion of the sum due until the relevant Government department has issued a notice setting out what the claimant is to be paid and what is to be refunded to the Government. Submissions69. Both parties had produced detailed written submissions in relation to the issues and took the opportunity to supplement these orally at the hearing. The submissions have been fully taken into account. Discussion and decision Belief in guilt of claimant genuinely and honestly held70. The claimant accepted that the reason for her dismissal was a potentially fair one, namely matters relating to conduct and so the first issue was whether the respondent genuinely and honestly believed in her guilt.71. The claimant disputed this, believing that the decision to dismiss her had been motivated by the shareholding dispute. While her written submission argued that she had been dismissed for alleging an infringement of a statutory right, that position had not been set out by the claimant in the evidence she had presented to the Tribunal (nor in her claim form).72. From the evidence before this Tribunal Mr Canning dismissed the claimant because he genuinely believed that the claimant had been guilty of misconduct. He believed the claimant’s conduct had led to the relationship’s destruction. The relationship had irretrievably broken down and he could not allow the claimant to continue to work for the business. Trust and confidence had been destroyed. That was a belief that was genuinely and honestly held by him from the evidence. There was no basis to find that the reason for the dismissal was as the claimant alleged.73. The sole reason for the dismissal was Mr Canning’s belief that the claimant had been guilty of misconduct. That was a belief Mr Canning genuinely and honestly held. Was the investigation fair?74. While it was argued that the investigation was not reasonable, there were few issues that the claimant raised when challenging the respondent on this point. The respondent is a small business and secured the services of an HR consultant and large firm of solicitors. The respondent took advice as to how best to investigate matters. In this regard two IT specialists were engaged to obtain evidence. The claimant was given notice as to the issues she faced, a hearing took place which considered each issue in detail, the claimant having been given the material in advance.75. Mr Canning carried out a reasonable investigation. Each of the allegations was set out at length in the disciplinary hearing invite letter with the appropriate information having been set out. No issue with regard to this was put to Mr Canning in cross examination. The claimant understood each of the allegations (even if she disagreed with them or believed the decisions to be based on assumptions). Ms Hadwin had explained why in fact the decision was based upon evidence that had reasonably been obtained. The respondent had carried out a reasonable investigation. Procedure76. I next considered whether the procedure that the respondent followed in this case was a procedure that fell within the range of responses open to a reasonable employer. On the facts, it was. The claimant was fairly told of what the issues were and given the full information. Her view was fully taken into account and genuine consideration was given to the full picture in light of the claimant’s position. The procedure adopted fell within the range of responses open to a reasonable employer. The test is not one of perfection. The procedure adopted fell within the range of responses open to a reasonable employer in the position of the respondent in this case.77. The claimant had argued that Mr Canning had not been independent and that there was a conflict of interest. She submitted that “no genuinely reasonable employer would permit the same individual to act in all three capacities”. I do not find that submission meritorious. On the facts of this case Mr Canning took control of the investigation and instructed specialists to assist him. He was realistically the only person in the business who could do so. It would not have been reasonable for him to have involved the remaining staff. He considered all the material that was presented to him, both from external investigations and that the claimant provided.78. Crucially Mr Canning decided to instruct a truly independent HR professional to deal with the appeal. This was important since it ensured that the process that was undertaken was viewed objectively by a third party. The independent appeal officer was able to properly and fairly review what Mr Canning had done, consider the information the investigation had uncovered and examine each of the points the claimant had made with regard to the decision. That was done and a decision was taken that was fair and reasonable. There is no doubt the approach Mr Canning took was not perfect and equally reasonable employers may well have taken a different approach but on the facts the approach Mr Canning took and in particular taking account of the appeal process, the procedure fell within the range of responses open to a reasonable employer.79. I do not accept the claimant’s submission that “the appeal process did not provide the genuine independence the circumstances of this case required”. The claimant takes issue with the fact the decision maker was paid for by the respondent or their solicitors. That is unexceptional. Ms Hadwin was an HR professional and carried out a careful review of the material before her independently of the respondent. The fact she was paid for by the respondent in no way suggests bias. From the evidence, Ms Hadwin was independent and objective.80. The claimant also criticises a meeting Ms Hadwin had with Mr McKell who was the notetaker. That was a meeting to check the veracity of the notes. The outcome of the meeting was to confirm the notes were broadly accurate. There is no irregularity. Mr McKell took no part in the decision making process.81. Finally the claimant argued Ms Hadwin “reviewed matters form the respondent’s perspective”. That is not a fair characterisation as to what happened. Ms Hadwin carefully analysed each of the points the claimant had raised. It was not her role to conduct her own investigations. Ms Hadwin carefully assessed the material that had been obtained and each of the points the claimant brought forward. She assessed matters from her own independent perspective and reached a fair conclusion.82. The claimant argued the appeal process did not cure procedural unfairness from the original hearing but there was no procedural unfairness. The original process fell within the range of responses open to a reasonable employer. The appeal process was fair and reasonably assessed the material. Decision to find the claimant guilty of misconduct83. The Tribunal then considered whether the respondent acted reasonably in light of the investigation and facts in concluding the claimant was guilty of conduct justifying her dismissal.84. Mr Canning had concluded that 6 of the allegations had justified a finding of gross misconduct and had concluded that summary dismissal was an appropriate outcome. Ms Hadwin confirmed that certain of the allegations on their own were sufficient to justify dismissal.85. The first allegation was that the claimant had interfered with and delated data from her work phone. The claimant had admitted to deleting certain things from the device. Some of the information that had been deleted was confidential information and deletion of information had hampered the investigation. It was clear that the claimant had used her work device when she had been told not to do so. She had deleted material that was on the device. That conduct was gross misconduct.86. The claimant in her submission accepted having deleted some material from the device and submitted that the allegation at its highest mounted to misconduct for which a warning would have been appropriate. Some equally reasonable employers might well have done so but it cannot be said that an equally reasonable employer given the context and facts of this case could not have found the conduct to amount to gross misconduct.87. The second allegation was that the claimant had illegally accessed Mr Canning’s computer and taken pictures of confidential information from the screen. This was a very serious matter. The claimant understood the importance of keeping confidential information confidential. She had entered Mr Canning’s office and read an email that was on his computer. She scrolled down to ensure she was able to take a picture of the remainder of the email. This conduct was self evidently gross misconduct.88. The claimant argued that she had openly and consistently accepted doing so was wrong and that she is deeply ashamed. She retained the material on her phone to protect her own legal position. She argues that “where a long serving employee accepts wrongdoing demonstrates genuine remorse and where no third party suggested any harm summary dismissal was wholly disproportionate and a final written warning would have been appropriate and proportionate”. On the facts of this case, the claimant’s conduct, taking account of the full factual matrix, clearly amounted to gross misconduct (and conduct that justified dismissal).89. The third allegation was that the clamant had unauthorised and deliberate access to and used and disclosed confidential information relating to Mr and Mrs Canning’s personal affairs. The claimant accepted she had made a spreadsheet of the personal information and sent it to her personal email account. The claimant argued she had needed the information for a VAT return but the information was not needed for that return. She admitted having sent the information to her personal email account. This was material that the claimant did not require to have in her personal account and was confidential. The claimant’s actions amounted to gross misconduct.90. The fourth allegation was unauthorised and deliberate access to and use and disclosure of sensitive and confidential information relating to the potential sale of the business and use of such information for private purposes and/or personal gain. The claimant had admitted to creating a note of sensitive information about the business and having passed this to a colleague and her solicitor and a friend of a family member. The claimant had also admitted the blind copying emails that contained confidential information to a family member (a friend of her father).91. Mr Canning’s conclusion that the claimant’s actions were wholly unacceptable and could have risked the sale of the business, given the non disclosure agreements that had been agreed to prevent information being disclosed, was not unreasonable. The claimant’s conduct in this regard amounted to misconduct. The claimant argued that there were legitimate reasons for her to disclose the material, which she said were to protect her legal rights. Mr Canning had no issue with the claimant taking legal advice and enforcing her position. His concern was that the claimant had used confidential information disclosed to her in a way that was not permitted. She had disclosed material to a colleague and to a friend of the family. No consent had been sought.92. The fifth allegation was that the claimant colluded with staff members during working hours. While initially denying having done so, the claimant admitted to disclosing confidential material to Ms Osborne, who was a colleague of the claimant (and who left the business). Mr Canning concluded that the claimant had been disclosing confidential information to Ms Osborne. Mr Canning concluded this was gross misconduct because the claimant had disclosed matters to a colleague who did not need to know. He concluded so doing was gross misconduct. The claimant had argued she was friends with Ms Osborne who had agreed to maintain confidentiality. Nonetheless it is clear that the claimant had disclosed confidential information to her.93. The sixth allegation was to inappropriately threaten and carry out a threat to contact the potential buyer of the business for her own purposes. The claimant accepted she had contacted the buyer but argued that she had not done so as an employee. That was not accepted by Mr Canning who believed the claimant had used information gained during her employment to contact the potential buyer. This was gross misconduct because of the potential impact contacting the buyer could have upon the sale.94. Taking a step back, on the facts the claimant was fairly and properly found to have been guilty of conduct that could justify her dismissal. That is the position in relation to the cumulative effect of the claimant’s behaviour which was reasonably found to have occurred. Sanction and band of reasonable responses95. Being guilty of gross misconduct or conduct that could justify dismissal does not mean that dismissal is necessarily fair. It is still necessary to consider the full factual matrix in assessing whether dismissal for that reason was fair in all the circumstances. 96. This was a small business. The environment was difficult for both the claimant and Mr Canning. It was clear that there was a fundamental disagreement as to the shareholding issue. Nevertheless the claimant still had a responsibility to ensure she conducted herself in an appropriate manner at work.
Procedure
[97]In assessing whether or not the respondent acted fairly and reasonably in dismissing the claimant, it is important to take into account the full factual background, including size, resources, equity and the substantial merits of the case. I took time to do so. The decision as to whether or not the dismissal was fair cannot be assessed in a vacuum and must take account of the nature of the respondent and the pressures both the claimant and Mr Canning faced.[98]From the information before Mr Canning, which included the claimant’s response to each of the allegations, the claimant had been guilty of conduct that went to the root of the employment contract that justified her dismissal.[99]I take into account the challenges the claimant clearly felt in working with Mr Canning, whom the claimant believed to have prevented her from securing her future. The material relied upon by the claimant does not, however, justify her actions. The claimant was guilty of conduct which showed that Mr Canning could not trust her as an employee. The nature and gravity of her conduct was such as to entitle Mr Canning to choose dismissal as an outcome in context.[100]The claimant argued that the decision was predetermined. She argued that finding the allegations as proven despite her long unblemished service was consistent with a predetermined outcome rather than a genuinely open and fair assessment of the evidence. That is an unfair characterisation of the approach taken in this case. There is no doubt the employment relationship was strained and day to day challenges arose. However, there is no reasonable basis to find that the decision was predetermined or that the evidence presented was not reasonably and properly considered. Each of the points the claimant raised was taken into account but the decision that was reached was reasonable. It was reasonable for Mr Canning to find the allegations proven.[101]The act of taking a picture of a confidential and legally privileged communication from a line manager’s computer during a sale process by itself was conduct that showed the relationship had been irreparably broken. Mr Canning could not reasonably trust the claimant. While the claimant believed at the time she was protecting her own interests, as a senior member of staff, the claimant ought to understood the consequences of her actions. Such conduct goes to the very heart of the employment relationship, one of trust.[102]The other acts of misconduct were serious and taken together themselves would also justify Mr Canning reaching a conclusion that dismissal was a fair sanction.[103]Taking a step back and considering all the circumstances, the claimant’s dismissal for the reasons in this case in light of her conduct fell within the range of responses open to a reasonable employer. I avoid applying counsel of perfection. The fact other reasonable employers may have chosen a different outcome does not mean an equally reasonable employer could decide on the facts of this case that the claimant’s conduct justified dismissal.[104]The claimant argued that summary dismissal was disproportionate. The claimant’s mighty service and unblemished record had been taken into account. Her seniority had also been noted but equally the claimant’s seniority was a relevant factor in assessing the severity of the conduct, as the claimant ought reasonably to have known how important it was not to breach confidentiality. The claimant was unable to separate the issue of her shareholding from her employment. Her belief as to her entitlement had become her prime focus and she had failed to moderate her conduct at work.[105]The claimant also pointed to the context and highly distressing dispute and working environment, the fact no third party suffered and her remorse. These were matters fully taken into account by Mr Canning and Ms Hadwin. I also bore those issues in mind in applying the law and assessing the outcome.[106]The claimant argued in her written submission that several of the allegations related to her decision to pursue her legal rights which cannot be misconduct. However, the conduct in question was not the seeking of legal redress or legal advice, but the way in which the claimant conducted herself while at work. This was put to Mr Canning who explained that he had no issue with the claimant seeking legal advice and protecting her position but the claimant had disclosed confidential and personal information and fundamentally destroyed the trust necessary for the employment relationship to continue. The conduct relied upon was entirely severable and separate from the seeking of advice and the securing of information to do so.[107]The claimant concluded her written submission by reiterating her view that the dismissal was predetermined. I did not find that correct from the evidence. Mr Canning genuinely applied his mind to the material before him. The claimant was given the chance to present her response having been given full details and the material relied upon in respect of each detailed allegation. Ms Hadwin independently assessed what had occurred and took account of all the relevant facts. The dismissal was solely because of the claimant’s conduct.[108]From the information before the respondent, both at the time of dismissal and upon appeal, the claimant’s conduct was such as to demonstrate that the employment relationship could not continue. The claimant had been guilty of conduct that entitled the respondent to summarily end the employment relationship. The respondent acted fairly and reasonably in dismissing the claimant by reason of her conduct taking account of the factual matrix. Dismissal not unfair[109]On the facts of this case, the claimant’s dismissal was not unfair. Considerations of Polkey and contribution[110]Although it was not necessary to do so, for completeness, given the parties had made submissions on both Polkey and contribution, I considered these issues.[111]As the procedure that was followed fell within the range of responses open to a reasonable employer the issue as to a Polkey reduction did not arise. At the submissions stage the claimant argued that one of the procedural failings was not giving the claimant longer time to prepare for the hearing but there was suggestion there was material the claimant wished to present which she had not been able to present. The nature of the claimant’s conduct in this case given the context is such that it can be said that a fair dismissal would have occurred irrespective such a procedural failure.[112]With regard to contribution, counsel for the respondent argued the claimant had contributed wholly to her own dismissal and a 100% reduction was appropriate. The claimant accepted she had done wrong. In her written submission she argued that Mr Canning’s conduct was in part a significant factor and that any reduction should be “modest”. At the hearing the claimant argued 20% at best would be fair.[113]The conduct which gives rise to possible contributory fault is the conduct underpinning the 6 allegations that Mr Canning relied upon to dismiss the claimant which I found to have occurred. I considered whether that conduct is blameworthy. The claimant was entirely responsible for the conduct in question. She had deleted items from the device. She had sent confidential information to third parties. She had taken a picture of a confidential and privileged communication for her own benefit. That conduct was the sole reason for the dismissal.[114]The final question I had to determine was to what extent I would have found it just and equitable to reduce any compensation. I would have determined that this was an example of an exceptional case where a reduction of 100% would have been entirely appropriate. The nature of the claimant’s conduct was such that when viewed objectively, and taking full account of the claimant’s position, the claimant was 100% to blame for her dismissal in light of what she had done as an employee of the respondent and it would have been just and equitable to reduce compensation by 100%. In summary[115]The claimant’s dismissal was for a potentially fair reason, namely, for matters relating to conduct. It was fair and reasonable to dismiss the claimant in all the circumstances for that reason, taking account of size, resources, equity and the merits. The procedure that was adopted fell within the range of responses open to a reasonable employer. The claim is therefore dismissed.