Mrs L Lovelace v Optic-Kleer Ltd: 2602921/2018
| Judgment Date | 05 February 2021 |
| Citation | 2602921/2018 |
| Published date | 19 February 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case No: V 2602921/18
Page 1 of 47
EMPLOYMENT TRIBUNALS
Claimant: Mrs L Lovelace
Respondent: Optic-Kleer Ltd
Heard at: Nottingham On: 21, 22, 28 October and 5 November 2020
Before: Employment Judge Rachel Broughton (Sitting alone)
Representatives
Claimant: In Person
Respondent: Mr Gilbert -solicitor
RESERVED JUDGMENT
The judgment of the Tribunal is that:
1. The claim of unfair dismissal is well founded and succeeds.
2. The compensatory award is subject to a reduction of 40% to take
account of the chance that the claimant would have been dismissed had
a fair process been followed
3. The claimant is awarded a total sum of £3,850
REASONS
The Claim
1. This is a claim of unfair dismissal pursuant to section 94 and 98 of the
Employment Rights Act 1996 (ERA). The claim was presented on the 18
December 2018 following a period of early Acas conciliation from 29 October
2018 to 29 November 2018. The claimant has not brought a separate claim of
wrongful dismissal.
The Background
2. The claimant was employed by the respondent as a Data Processor from 1
October 2004 until her summary dismissal on 30 September 2018.
3. The essence of the claim is that the respondent introduced a new computer
system in January 2018 replacing paper invoicing with an electronic function.
Case No: V 2602921/18
Page 2 of 47
The respondent’s case is that the claimant was summarily dismissed for actions
which constituted a fundamental breach of the implied duty of mutual trust and
confidence, namely her conduct in writing off an excessive number of invoices in
breach of the correct procedure. The claimant does not deny writing off the
invoices but denies doing it deliberately, she blames a lack of training on the new
system. The claimant further claims that the real reason the respondent
terminated her employment, was because they no longer required someone to
carry out her role but wanted to avoid liability for a redundancy payment.
Issues
4. At the outset of the hearing, the parties identified the issues for the tribunal and
they are as follows;
Unfair dismissal
a. What was the principal reason for dismissal and was it a potentially fair one
in accordance with sections 98(1) and (2) of the Employment Rights Act
1996 (“ERA”)?
The Respondent asserts that it was conduct.
The claimant alleges that the real reason for dismissal was redundancy
b. If so, was the dismissal fair or unfair in accordance with ERA section 98(4),
and, in particular, did the Respondent in all respects act within the so-called
‘band of reasonable responses’?
The claimant complains that the dismissal was both substantively and
procedurally unfair in that;
▪ The respondent failed to comply with the Acas Code of practice
▪ The respondent failed to provide the claimant with notes of the
suspension meeting until after the disciplinary hearing
▪ Witness statements relied upon by the respondent in its decision to
dismiss, were not taken until a day after the disciplinary hearing and
only provided following a request from the claimant.
▪ Documentary evidence relied upon was unreliable
▪ The respondent failed to consider the possibility of the issue being
a lack of training
▪ There was no written procedure in place and the claimant asserts
that she had carried out of the same process throughout her
employment
▪ There was a lack of clarity over the allegations
▪ The claimant was only asked about duplicated invoices at the
disciplinary appeal and not sent the evidence to provide a response
▪ The HR consultant who carried out the disciplinary appeal process
relied upon the respondent’s assertions which contradicted what
was set out in the franchisee’s manual.
▪ Letters disclosed in evidence were different to those received by the
claimant
Case No: V 2602921/18
Page 3 of 47
▪ That the claimant was not provided with the relevant evidence
during the disciplinary process to enable her to respond to the
allegations
▪ The claimant was not given the appropriate training to carry out the
role following the contribution of a new computer system.
The Evidence
5. The parties produced a bundle initially numbering 452 documents, however the
respondent had prepared the index and failed to include some of the claimant’s
documents and with further disclosure during the hearing, the final bundle
numbered 464 pages.
6. The Tribunal heard evidence from the respondent’s witnesses; David Overton,
Director of the respondent, Sarah Overton, Director of the respondent, and
Susan Smith, Office Manager of the respondent. All three witnesses were cross
examined by the claimant.
7. The Tribunal heard evidence from the claimant who was cross examined by the
respondent. The claimant did not call any witnesses.
The Hearing,
8. The hearing had been listed for 2 days. It was conducted remotely with all parties
and witnesses participating by Cloud Video Platform. The case required a further
listing of an additional one and a half days to complete the evidence and allow
oral submissions.
The Findings of Facts - Background
9. The respondent is a vehicle windscreen repair franchisor. It has operators
(franchisees) who carry out windscreen repairs for customers on an insurance
and non-insurance funded basis. The respondent charges its operators a
management service fee to process its invoices, deal with customers and
insurance companies.
10. The respondent has a manual for the operators which sets out the invoicing
procedures. This document sets out the 4 methods by which a windscreen repair
may be paid for and the different ways the payment is processed;
i. Direct Bill –the customer has insurance and the respondent forwards an
invoice for payment to the customer’s insurer. The manual provides that;
“every assistance will be given by [ the respondent] to collect the money on
behalf of the franchisee”.
j. Pro-Pay - the customer pays the operator the full invoice price. The customer
sends a copy of the paid invoice to the insurer and is reimbursed directly by
the insurer.
k. Account – this is referred to as a high-risk method of payment. This is where
the repair is carried out, and only when the customer receives payment from
their insurer, does the customer pay the invoice. The manual recommends
that the operator qualifies with ID from the customer, their name and address.
It states that; “any outstanding debt from an account customer is the
responsibility of the individual franchisee and whilst every assistance will be
To continue reading
Request your trial