Most workers are entitled to a lunch break under working time rules and it is very rare for someone to be dismissed for the simple act of taking time out for their lunch.
However, in the case of Tracie Shearwood v Lean Education and Development, the Employment Tribunal found that the claimant going on lunch “during the height of a crisis” had played a part in the decision to dismiss her.
As you will see below, the Claimant was not necessarily dismissed for taking her lunch break but the case itself highlights the many ways a dismissal can go wrong and still be deemed unfair even where it might otherwise have been properly achieved.
Here’s Employment Solicitor Chris Dobbs’ summary…
Case background
The case is notable for its confusion and the Tribunal was quick to note that evidence and even the bundle itself were badly prepared. However, facts were established.
Ms Shearwood had been employed for seven years at the date of her dismissal which had been stated as due to conduct. In her claim, Ms Shearwood argued that the real reason had been capability and that, in any case, the dismissal was unfair.
The Respondent was an apprenticeship training provider and originally employed Ms Shearwood as an assessor before she was ultimately promoted through the business to work in compliance.
There was some confusion around this as she appeared to be promoted and demoted very quickly in this role.
Ofsted inspection and audit
The company went through an Ofsted inspection and there was a pending separate external audit during which it was discovered that the Claimant was struggling in her role.
It is accepted that the situation was high pressure and systematic problems in processes and procedures ahead of an external audit did create a difficult working environment between June and August 2018.
Suspension and subsequent grievance
There were broad but poorly managed performance procedures and the company eventually took external HR guidance following a series of particular issues in August 2018 and decided to suspend Ms Shearwood and start disciplinary proceedings.
Not unexpectedly, she raised a grievance in response to the suspension. This immediately led to the Claimant’s suspension being lifted.
Lunch Incident
The next day, the Claimant and two colleagues went for lunch together.
The Tribunal noted the company’s Managing Director being “angered” by this which led to a phone call in which she berated them for taking lunch together and questioned their commitment to the business.
The Claimant’s suspension was then reinstated.
The dismissal
There was some confusion as to the role of the investigator. No investigation meeting was held and the Tribunal noted that the individual named as the investigator was at all times unclear as to whether he was investigating or decision-making.
A disciplinary meeting was held on 27 September chaired by the same individual.
A dismissal letter citing “gross misconduct” was sent to the Claimant the following day. The Claimant did appeal although it was noted by the Tribunal that the independence of the appeal chair was not examined as he did not appear as a witness.
The appeal outcome against Ms Shearwood conflated her performance and conduct.
Was the dismissal unfair?
To be fair in law, a dismissal must be both factually and procedurally fair. That is to say there must be:
- A factual reason for the dismissal which is both established and one of the reasons set out in law (conduct, capability, redundancy, it being unlawful to continue the employment, or some other substantial reason)
- And that the employer must have followed a fair and reasonable process in reaching the decision to dismiss.
The Tribunal found that the high pressure environment created by the compliance issues had compounded three ‘trigger’ events: the compliance errors in August which led to the Claimant’s suspension, the grievance the Claimant raised a few days later and then the lunch event described above.
What did the tribunal find?
If the reason for dismissal was gross misconduct, as put forward by the company, it was suggested that the behaviour was malicious, or that the mistakes made personally by the claimant were so serious that they put the company at risk of serious financial loss.
Neither of these were proven and the Tribunal concluded the real reason for dismissal was the Claimant’s performance. As the claimed reason was not established, there was no need to explore the issue of procedural fairness further.
However, the Tribunal did go on to say that even if misconduct was shown to be the reason, it would still have found the dismissal unfair. In particular, the Tribunal took issue with the way the company had referred to the upheld grievance points as having damaged trust and confidence.
Ms Shearwood was awarded a total of £11,885.62.
What should employers consider following this case?
“This case shows just how wrong a dismissal can go for an employer.” says Chris Dobbs, Employment Solicitor at Frettens.
“The most important thing to get right early on is the reason for a dismissal. While a simple ‘mislabelling’ can be forgiven by the Tribunal, a summary dismissal for anything other than genuine gross misconduct will always be frowned upon.”
How employers can prove gross misconduct
Chris continues: “If the reason is going to be gross misconduct, then the conduct must in fact be severe enough that dismissal is justified and it must be shown that the employer reasonably believed the misconduct had actually occurred.
To achieve that, investigations should be thorough, impartial and comprehensive enough to allow for a decision-maker to reach a reasonable conclusion. An employee needs to have the opportunity to present their version of events and if points of a grievance are upheld which are relevant to any disciplinary action, they should be considered.
This was a costly loss for the employer which need not have happened. If there was a performance issue it could, and should, have been managed very differently.”
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