D Griffiths v N & C Leisure Ltd: 1402326/2021
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 2022 |
| Date | 27 November 2022 |
| Court | Employment Tribunal |
| Published date | 14 December 2022 |
| Subject Matter | Contract of Employment |
Case Number:1402326/2021
1
EMPLOYMENT TRIBUNALS
Claimant Respondent
Donna Griffiths v N & C Leisure Limited
Heard at: Bristol ET (by video) On: 18 & 19 May 2022
Before: Employment Judge Hogarth
Appearances
For the Claimant: Mr H Dyson Counsel, instructed by Spencers Solicitors,
Chesterfield
For the Respondent: Mr P Saunders (co-owner of the respondent company)
RESERVED JUDGMENT
1. The claimant was unfairly dismissed by the respondent.
2. The claimant contributed to her dismissal to the extent of 100%, to be applied to
both the basic and compensatory awards and therefore the claimant is awarded no
compensation in respect of her dismissal.
3. The claim under section 38 of the Employment Act 2002 is upheld. The
respondent must pay the claimant £1076.00 (two weeks’ pay).
REASONS
Introduction
1. The claimant was employed by the respondent as manager of the Barrington
Arms Hotel, Shrivenham (“the hotel”), part of which is a licensed pub (“the
licensed premises”). She was dismissed with a month’s notice on 30 December
2020 and claims for unfair dismissal under section 98 of the Employment Rights
Act 1996 (“the ERA 96”) and for compensation under section 38 of the
Employment Act 2002 (“the EA 2002”). Both claims are contested.
Form of hearing and witnesses
2. The hearing was conducted by video (VHS). There were occasions when
connection issues or other IT issues caused interruptions. These resulted in
some lost time, but did not impact on the viability or fairness of the hearing.
Case Number:1402326/2021
2
3. The claimant, who was present throughout the hearing, gave sworn evidence.
No other witnesses were called on her behalf. Mr Saunders, a co-owner of the
respondent, represented the respondent company. He was at all times the
directing mind of the company and his actions are attributable to it. He also was
present throughout the hearing and gave sworn evidence. He called as
witnesses Ms Naomi Cook an employee of the respondent and Mr Gareth
Pinchin the current manager of the hotel, who both gave sworn evidence.
Procedure
4. I had before me an agreed 97-page Bundle, and an unsigned and undated 4-
page witness statement from the claimant, which the claimant applied to be
admitted as late evidence. The respondent did not object. I admitted the
statement. I also agreed to applications (not objected to by the claimant) to treat
Mr Saunders’ statement in paragraph 6 of his ET3 form (referred to below as
his “ET3 statement”) as his witness statement and to give leave for Mr Pinchin
to be called as a witness despite his not having given a written statement in
advance. I considered it appropriate to make these decisions in the light of the
overriding objective, so that the Tribunal had all the available evidence. There
were no other procedural matters raised by either party.
5. Neither party requested any reasonable adjustments in response to my enquiry
as to their possible needs.
6. The first hearing day and part of the second day was taken up with evidence
and submissions on liability issues (including Polkey reduction and contributory
fault). The rest of the second day was taken up with evidence and submissions
on remedy. Judgment was reserved.
Mr Saunders’ appearance in person
7. Mr Saunders appeared able to cope with the demands of the video hearing and
was able to give evidence, ask questions of witnesses and make submissions.
However, he was not familiar with the relevant law and procedure, and did not
always appear to understand the potential significance of some of the questions
put to him or other witnesses by Mr Dyson. On occasion I saw that he was
confused by what was being said to him or others, or by the procedure. That
was not helped by the fact he did not have a complete paginated bundle, which
made it harder for him to locate specific documents.
8. All these things put Mr Saunders at a disadvantage. In order to enable him to
participate on a more equal footing (and in the light of the overriding objective) I
afforded him some latitude in the way he presented his case, gave evidence
and asked questions. I gave explanations of legal or procedural matters and on
occasion I helped him to formulate a question he wished to ask or to articulate
the respondent’s position on a matter. I also made some inferences as to
aspects of the respondent’s position from a combination of sources – Mr
Saunders’ oral evidence, statements and submissions, his ET3 statement and
other documents in the bundle.
Case Number:1402326/2021
3
9. M r Saunders was able to present his case as he wished. I do not consider that
the claimant was prejudiced by any of the steps mentioned in paragraph 8
above, because (a) she was able to give her own evidence freely, (b) she was
represented by experienced counsel, and (c) her counsel did not object to any
of them and agreed, when invited by me to comment, with my explanations of
legal and procedural matters. Mr Dyson addressed the respondent’s case
thoroughly, and was able to deal with all aspects of that case as set out below.
Claims and issues
10. The parties agree that the claimant was employed by the respondent as the
manager of the hotel from 1 October 2017 until 29 January 2021, at the expiry
of one month’s notice of dismissal given on 30 December 2020.
11. I set out the issues for the Tribunal to decide at the start of the hearing and Mr
Dyson agreed they were the correct ones. The issues are:
Issue 1 – was the claimant unfairly dismissed?
1.1 What was the principal reason for the claimant’s dismissal and was it a
potentially fair reason under sections 98(1) and (2) of the Employment Rights
Act 1996?
1.2 Did the respondent genuinely believe that the claimant had committed the
alleged misconduct?
1.3 If so, did the respondent act reasonably in all the circumstances in treating
that as a sufficient reason to dismiss the claimant? In particular the Tribunal
must decide whether—
1.3.1 there were reasonable grounds for the respondent’s belief;
1.3.2 when the belief was formed, the respondent had carried out a
reasonable investigation;
1.3.3 the respondent had otherwise followed a reasonably fair procedure;
and
1.3.4 dismissal was in the range of reasonable responses by an
employer.
The respondent asserts that the principal reason for dismissal was gross
misconduct through being under the influence of alcohol when on the licensed
premises, that it had a genuine belief she committed that misconduct, and that it
acted reasonably in treating it as a sufficient reason to dismiss. The claimant
disputes the respondent’s position on each issue, asserting that the real reason
for dismissal was Mr Saunders’ wish to make his brother-in-law Mr Pinchin the
manager, there was no misconduct or reasonable belief in it, and that the
respondent did not act reasonably in dismissing her. In particular she denies
that there was a reasonable investigation and asserts that the procedure
adopted by the respondent was unfair.
Issue 2 - breach of ACAS Code of Practice (if the dismissal was unfair)
2.1 Did the respondent unreasonably fail to comply with the ACAS Code on
Disciplinary and Grievance Procedures?
2.2 If so, is it just and equitable to increase any compensatory award payable to
the claimant? By what proportion, up to 25%?
To continue reading
Request your trial