Automated Summary
Key Facts
The claimant, Mrs. Avanelle Allen-Lynch, was employed as a care assistant at Queens Court Care Home until her summary dismissal on 14 December 2017. The core issue was her failure to promptly disclose a video recorded by colleague K of a resident in distress. The tribunal found she knew about the video but delayed reporting it for six weeks, leading to her dismissal for gross misconduct. The employer's investigation, disciplinary process, and decision were deemed fair. The claimant's holiday pay claim was also dismissed, as she was correctly paid £772.35 for 17.1 days of outstanding holiday at 7.4 hours per day.
Issues
- The tribunal determined whether the Claimant's failure to disclose the video of the distressed resident, which she allegedly knew about for six weeks, was the sole or principal reason for her dismissal under section 103A of the Employment Rights Act 1996. It concluded the dismissal was not motivated by the protected disclosure but by the delay in reporting.
- The tribunal resolved a dispute over the calculation of the Claimant's outstanding holiday pay. It ruled the Claimant was entitled to 17.1 days at 7.4 hours per day, as per her contract's average working week, with the correct amount already paid.
- The tribunal assessed whether the Respondent's dismissal of the Claimant was fair under section 98(4) of the Employment Rights Act 1996, considering (1) the employer's genuine belief in misconduct, (2) reasonable grounds for that belief, and (3) adequacy of the investigation. The dismissal was upheld as fair due to the Claimant's failure to disclose a video of resident abuse in a timely manner.
- The tribunal evaluated whether the Claimant's conversation with Ms Sandford on 19 September 2017 constituted a protected disclosure under the Employment Rights Act 1996. It found no evidence the Claimant mentioned the video, rejecting this as a valid disclosure.
Holdings
- The dismissal was determined to be fair in all circumstances of the case. The claim fails and is dismissed.
- The Claimant made a protected disclosure on 19 October 2017 to Ms Saadat regarding the video incident.
- The Claimant did not make a protected disclosure to Ms Sandford on 19 September 2017.
- The Claimant is entitled to 17.1 days of holiday pay at 7.4 hours per day, totaling £772.35, which was already paid on 11 October 2018. The holiday pay claim also fails.
- The reason for dismissal was conduct, specifically the Claimant's failure to disclose the video in a timely manner.
Remedies
The Claimant was paid £772.35 for 17.1 days of holiday at 7.4 hours per day. The claim for additional holiday pay was dismissed as the correct amount was already paid on 11 October 2018.
Legal Principles
- The employer is required to carry out as much investigation as is reasonable in all circumstances, as per section 98(4) of the Employment Rights Act 1996.
- The employer must show a genuine belief that the employee committed misconduct, as established in BHS v Burchell.
- The employer's belief in misconduct must be held on reasonable grounds, as per the legal framework outlined.
Precedent Name
- Sainsbury's Supermarkets Limited v Hitt
- Post Office v Foley and HSBC Bank Plc v Madden
- London Ambulance Service NHS Trust v Small
- Kilraine v LB of Wandsworth
- Taylor v OCS Group Limited
- Newbound v Thames Water Utilities Ltd
- BHS v Burchell
Cited Statute
Employment Rights Act 1996
Judge Name
Employment Judge Russell
Passage Text
- (2) The Claimant did not make a protected disclosure to Ms Sandford on 19 September 2017.
- The employer must show a potentially fair reason for dismissal within section 98 of the Employment Rights Act 1996. The Respondent relies upon conduct within section 98(2)(b). The legal issues in a conduct unfair dismissal case are well established in the case of BHS -v- Burchell [1978] IRLR 379, namely: (1) did the employer genuinely believe that the employee had committed the act of misconduct? (2) was such a belief held on reasonable grounds? And (3) at the stage at which it formed the belief on those grounds, had the employer carried as much investigation as was reasonable in all the circumstances of the case?
- (3) The reason for dismissal was conduct.