Case No: 2300551/2019

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EMPLOYMENT TRIBUNALS

BETWEEN CLAIMANT V RESPONDENT Ms R Atta

In Depth Services (Cleaning) Ltd

Heard at: London South Employment Tribunal On: 7 August 2019 Before: Employment Judge Hyams-Parish (sitting alone) Representation: For the Claimant: Mr Tuffnell (Trade Union Representative) For the Respondent: Mr W Young (Counsel)

JUDGMENT 1. The claim for unfair dismissal is well founded and succeeds.

2. The claim under s.10 Employment Relations Act 1999 (right to be

accompanied) fails and is dismissed.

3. The tribunal awards the Claimant the sum of £2,903.49 in respect of her unfair dismissal claim.

REASONS Claim 1. By a claim form presented to the tribunal on 14 February 2019, the Claimant

brings complaints against the Respondent of unfair dismissal and breach of the statutory right to be accompanied under s.10 Employment Relations Act 1999 (ERelA).

2. The Respondent defends the claim, stating that it dismissed the Claimant for some other substantial reason (SOSR), namely third-party pressure from a client, and they acted fairly in treating that reason as a reason for

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dismissal. They also assert that the Claimant had no statutory right to be accompanied to a meeting to consider her dismissal because it was not a disciplinary hearing.

Legal Issues 3. At the outset of the hearing the tribunal identified and canvassed with

representatives for the parties certain questions it needed to answer in order to determine this claim. The representatives agreed that they reflected the legal issues that the tribunal would need to determine. The questions were as follows: a. Did the Respondent genuinely believe it was placed under pressure

by its client (CBRE) to dismiss the Claimant? b. Was that the reason, or principal reason, for the Claimant's

dismissal?

c. Was that “some other substantial reason”?

d. Did the Respondent consider the injustice to the Claimant?

i. Did they conduct all reasonable enquiries of their Client relating to its decision; and

ii. Did they consider any alternatives to dismissal?

e. Was the dismissal procedurally fair?

f. If the Claimant’s dismissal was procedurally unfair, should there be a “Polkey” reduction (see paragraph 41 below) in the compensation awarded and if so, by how much?

g. Did the Claimant contribute to the dismissal and if so, by how much,

if any, should the basic and/or compensatory awards be reduced?

h. Does the ACAS code apply to the dismissal?

i. Should there be an uplift or reduction in compensation for failing to follow its provisions?

j. Was the meeting held on 14 January 2019 a “disciplinary” meeting

within the meaning of s.13(4)(b) of the ERelA? k. Did the Respondent deny the Claimant any right under s.10 ERelA?

Hearing 4. The tribunal heard evidence from the Claimant and two witnesses for the

Respondent: Ms Zulma Alexandra Vidales, London City Manager (“ZAV”) and Ms Claire Whitlow, Training and HR Manager (“CW”). ZAV was the manager responsible for the cleaning contract where the Claimant worked,

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and made the decision to dismiss the Claimant. CW gave HR advice on the process throughout.

5. The tribunal was referred to documents in a hearing bundle extending to 107 pages. References in square brackets in this judgment are to page numbers in the hearing bundle.

Findings of fact

6. The Claimant commenced her employment with Johnson Controls on 27 January 2014. Johnson Controls provided cleaning services at a building belonging to IBM on the South Bank in London (“IBM offices”). The Claimant's employment was transferred to OCS (who won the cleaning contract from Johnson Controls) three months later, and then to the Respondent when they were awarded the contract, on 1 May 2017. Both transfers were pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006.

7. At all times, since she commenced employment in January 2014, the Claimant provided cleaning services on a full-time basis at the IBM offices. She was an experienced cleaner with 30 years’ experience.

8. The IBM offices was managed by a company called CBRE whose site

manager was a person called Marie Matthews (“MM”). The Respondent's contract to provide cleaning services was with CBRE and therefore CBRE was the client of the Respondent. The tribunal accepts that CBRE is an important client of the Respondent, not least as it provided one of a very few full-time cleaning contracts the Respondent had, i.e. one where the cleaners provided by the Respondent worked full time, as the Claimant did.

9. On 31 December 2018 there was an audit meeting with MM which was attended by ZAV. During this meeting MM observed that the cleaning standards were very poor on the floor that the Claimant was responsible for cleaning. ZAV asked the supervisor to find the Claimant so that she could join the conversation about the cleaning standards and get her response to what was being said. ZAV said that when the Claimant joined the conversation, she got upset and was very rude to her and MM. She then walked off. The audit was cancelled.

10. The tribunal accepts that ZAV was embarrassed by the behaviour of the Claimant and was concerned by the potential damage to the relationship. The tribunal accepts, even if it had not been the intention of the Claimant at the time, that her behaviour was seen by ZAV and MM as very rude. The tribunal also accepts the evidence of ZAV that there were valid complaints about the standard of the Claimant's cleaning.

11. MM followed up the visit by sending ZAV an email on 31 December 2018 [30] confirming her dissatisfaction with cleaning standards and stating that she found the Claimant's behaviour disrespectful. Within the email, MM wrote “…I cannot believe the rudeness witnessed when you were trying to explain to Rose what desks were not cleaned following our walk around….”

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12. MM suggested there be a further quality audit on 2 January 2019, but this was rescheduled to 4 January 2019. During this further meeting, which coincided with some annual leave the Claimant had taken, further problems were identified regarding cleaning standards, which MM described as “very poor”.

13. MM followed this up with an email to ZAV [45] dated 4 January 2019, with accompanying photographs, which she said evidenced the poor cleaning standards. She ended the email by saying “I am not happy with this cleaner and do not want her any longer on site”.

14. ZAV followed this email up with a call to MM on 8 January 2019 during which she said that she did her best to change the mind of MM, asking for the Claimant to be given another chance, even offering to discipline the Claimant. However, ZAV said that as much as she tried, she could not convince MM to change her mind. The tribunal accepts the evidence from ZAV on this point. She made clear during the hearing that the Claimant was a good cleaner and had a good record in terms of her performance and she said that she made this clear to MM. The tribunal did not have any reason to believe ZAV wasn’t being truthful or that she did not do what she could to change MM’s mind.

15. ZAV wrote to the Claimant by letter dated 11 January 2019 [46] which said as follows:

Dear Rose Employment Meeting As you are aware there was an issue during the audit with the client on site on 31 December 2018, in respect of standards. When I attempted to discuss the standards with you, your conduct was unacceptable, and you walked away as I was speaking to you. These two matters would usually result in action in line with the disciplinary procedure. In this instance we received communication from the client, complaining about both the standards in your work area and your conduct, advising that they did not want you on-site any longer. Due to this, I ask that you attend a meeting with me on 14 January 2019 at 8.30am at Regus meeting room, 16 Woburn Place, Euston, London, WC1H 0AF. I must advise that it may be necessary to terminate your employment. You do not have a statutory right to be accompanied. You must not under any circumstances attend site before this meeting. In the event that you do not attend as required I will write to inform you of the outcome of this matter.

16. The Claimant received that letter on 12 January 2019 (a Saturday). The

Claimant attempted to contact ZAV on the same day she received the letter but couldn’t get through. She therefore left a voicemail message that she wouldn’t be attending because she wanted to be represented by her union at the meeting. The tribunal accepts that she did not simply state that she

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would not be attending, but that she also made clear that the reason she would not be attending was to obtain representation. It was clear to the tribunal that even if it had not expressly been requested, the effect of what the Claimant was asking, was for the meeting to be rescheduled so that she could attend with representation.

17. On 12 January 2019 at 14.01 ZAV received an email from the Claimant’s union representative [47], a Mr Durango, saying as follows [sic]:

Good afternoon Alex

I am the authorised trade union representative of Rose Atta. She is in received of the attached letter from you. She dispute you assertion about the standards and conduct. She received the about letter just this morning, you’ve explained that she don’t have statutory rights to go with union representative but at the same time says that the possible outcome is the termination of the contract of employment. She informed you that she will not attend the meeting on Monday as she will come to the union for advice

18. On 14 January 2019 at 13.39, Mr Durango sent a further email [49] to the

Respondent which said as follows [sic]:

Rose visit as today and we took legal advice in this case As a result of the meeting can be the termination of the contract of employment, Indepth should allow union representation in the hearing If the union representative will allow please coordinate the hearing date with my colleague, Marlene Jimenez, who have the availability for all our union representatives. Please let us know what is the current employment situation with Rose, is she suspended on full pay?

19. ZAV wrote to the Claimant [51] by letter dated 14 January 2019 stating that

she had decided to terminate the Claimant's employment with effect from the date of the letter. The letter stated as follows:

Dear Rose Termination of employment I am writing in respect of the meeting which was scheduled to take place today to discuss your employment, following a complaint from our client. You advised by voicemail and by email from your Union, both on Saturday 12 January 2019 that you would not be attending. As detailed in my previous correspondence, in the event that you did not attend, it was confirmed that I would write to inform you of the outcome. To confirm, following an issue during an audit on 31 December 2018, our client submitted a written complaint about both your standards of work on-site and your conduct, which they witnessed when I was addressing

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you about areas that required attention (copy enclosed). As a result of further concerns the client subsequently advised that they did not want you ‘any longer on-site’. This is confirmed in an email of 4 January 2019 (copy also enclosed). In preparation for the meeting scheduled for today I spoke to the client last week to discuss if there were any other options available to us to retain you on-site, but that they advised that there were not and they did not want you to return. I also reviewed what vacancies we have available with a view to possible redeployment, but unfortunately there were no positions available. Having considered the situation, I am left with no option but to terminate your employment, based on the client’s request which they are unwilling to withdraw. You’re not required to work your notice and will be paid in lieu of your notice period, which will be four weeks’ pay. Your last day of employment is therefore today. You may appeal the decision to terminate your employment: any appeal should be made in writing, stating your grounds for appeal in full and addressed to Sharon Williamson, Regional Manager, within five working days of the date of this letter. This letter should be sent to the address detailed below or to info@indepthcleaning.co.uk.

20. In her evidence, which the tribunal accepts, CW said that she did a search

for other cleaning positions at the company (initially on 10 January 2019, and then again on 14 January 2019) within a 25 mile radius of the Claimant's home and the only role found was one in Caterham offering six hours work a week, which was a considerable drop from how many hours the Claimant had been working. The Claimant could only get to work by public transport and said that she would not travel anywhere for work that was more than one hour away. The role in Caterham would have involved approximately one hour fifteen minutes travelling time for the Claimant.

21. On 16 January 2019 an email was sent to the Respondent by the Claimant's union [52] indicating her intention to appeal.

22. On 22 January 2019, CW wrote to the Claimant [53] stating that she had not received any grounds of appeal and that if grounds of appeal were not received by 10am on 25 January 2019, it would be assumed that the Claimant did not want to appeal.

23. On 30 January 2019, CW emailed the Claimant's union pointing out the provision in the ACAS code stating that employees should let employers know the grounds for their appeal in writing. The email stated that a further period of time could be given, until Monday 4 February 2019, to provide grounds of appeal.

24. There followed some emails back and forth between the Claimant's union and CW, ending in one [60] from CW to Mr Tufnell which included the following paragraph:

It is now some considerable time since you notified us of the intention to appeal (16 January 2019) and we reiterated the requirement to your member that grounds were required (22 January 2019) as notified to her

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in the original letter of dismissal (14 January 2019) If your member does not wish to cooperate with the appeal process then there is nothing more we can do.

25. There was an inconsistency between the above correspondence from CW

and her evidence to the tribunal. In evidence, CW said that the reason the appeal could not go ahead was because of the Claimant's insistence on being represented by a union – not because she had failed to provide grounds of appeal - and that had she not been so insistent, she would have been allowed to have proceeded with her appeal notwithstanding that she had not provided grounds of appeal. In any event it is clear that the appeal hearing did not go ahead. The tribunal concludes that it was the Claimant's insistence on being represented by a union which was the cause of the appeal not being able to proceed, and not the fact that the Claimant had failed to provide grounds of appeal.

Legal framework

(a) Unfair Dismissal

26. Section 98 of the Employment Rights Act 1996 (“ERA”) provides: -

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

27. Section 98(4) ERA provides:

Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

28. As is clear from the above, the statutory test has two separate stages. First, the employer carries the burden of proving that SOSR is the sole or principal reason for the dismissal. To satisfy this stage, the employer needs only to

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establish an SOSR reason for the dismissal which could justify the dismissal of an employee holding the job in question: it is not necessary to show that it actually did justify the dismissal. Indeed, at this first stage, the tribunal must not consider the justification, reasonableness or fairness of dismissing for SOSR, since such an approach risks conflating the two distinct stages of the statutory test. The employer must then show that the decision to dismiss for SOSR was reasonable in all the circumstances (including the size and administrative resources of the employer’s undertaking). For this second stage of the statutory test, the burden of proof is neutral, so the onus is neither on the employer to prove it was fair, nor on the employee to prove that it was not.

29. There is established authority that shows where a third party (such as a customer or supplier of an employer) requires an employee’s dismissal, the dismissal can be regarded as fair for SOSR.

30. In Dobie v Burns International Services (UK) Ltd [1984] ICR 812, a local council had a contract with the airport in which it had the right to dismiss security guards who were provided by the employer (a separate contractor) to the airport. One security guard was dismissed by the employer (at the behest of the local council) because of a conflict with a senior council employee. The dismissal was held to be fair. The Court of Appeal stated that when considering the reasonableness of the dismissal, the tribunal must consider the conduct of the employer and, most importantly, whether dismissal is an injustice to the employee.

31. In Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466, the employer was a contractor providing transport services to the local council. The employee worked as a bus driver for disabled children. When the council became aware that he had been accused of child sex abuse (which he denied and which never gave rise to formal criminal charges), it sought to exercise its right to have him removed. The employer therefore dismissed him at the behest of the council. The Court of Appeal held that the dismissal was fair for SOSR. In so finding, the Court of Appeal (and the tribunal below) were influenced by the employer’s attempts to persuade the council to change its mind, and also noted that the employer had considered whether it had alternative work before concluding that the dismissal was necessary.

(b) Applicability of ACAS Code

32. An issue in this case which the tribunal needs to resolve is whether the

ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) applies to SOSR dismissals. The introduction to the ACAS code says as follows:

This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace. Disciplinary situations include misconduct and/or poor performance. If employers have a separate capability procedure they may prefer to address performance issues under this procedure. If so, however, the

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basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted. Grievances are concerns, problems or complaints that employees raise with their employers. The Code does not apply to redundancy dismissals or the non‑renewal of fixed‑term contracts on their expiry.

33. In the case of Lund v St Edmund's School, Canterbury UKEAT/0514/12 (8 May 2013, unreported) which was referred to during submissions by the parties, Keith J said at paragraph 12:

If the employee faces a complaint which may lead to disciplinary action (whether because of his misconduct or his poor performance), the Code applies to the disciplinary procedure under which the complaint is to be investigated and adjudicated upon. Of course, the outcome of the disciplinary procedure may not result in the employee’s dismissal at all. Or it may result in his dismissal which on analysis turns out not to be a dismissal for his misconduct or poor performance but a dismissal for something else. The important thing is that it is not the ultimate outcome of the process which determines whether the Code applies. It is the initiation of the process which matters. The Code applies where disciplinary proceedings are, or ought to be, invoked against an employee.

34. And then at paragraph 16 Keith J says:

That is what distinguishes the present case from Ezsias v North Glamorgan NHS Trust [2011] IRLR 550. In Ezsias, the Trust never contemplated dismissing Mr Ezsias for the conduct on his part which had caused the breakdown in the working relationships between him and his colleagues. In the present case, that was clearly in the contemplation of the School, even if it ultimately decided to dismiss him for a reason which the tribunal found did not relate to his conduct.

(c) Right to be accompanied

35. The statutory right to be accompanied is set out in section 10 of ERelA which states:

(1) This section applies where a worker— (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing. (2A) Where this section applies, the employer must permit the worker to be accompanied at the hearing by one companion who– (a) is chosen by the worker; and (b) is within subsection (3). (2B) The employer must permit the worker's companion to– (a) address the hearing in order to do any or all of the following– (i) put the worker's case; (ii) sum up that case; (iii) respond on the worker's behalf to any view expressed at the hearing; (b) confer with the worker during the hearing.

36. Section 13(4) of ERelA defines a “disciplinary hearing” as a hearing which

could result in:

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(a) the administration of a formal warning to a worker by his employer, (b) the taking of some other action in respect of a worker by his

employer, or (c) the confirmation of a warning issued, or some other action taken.

37. In Heathmill Multimedia Asp Ltd v Jones And Jones [2003] IRLR 856

the EAT said that the taking of some other action in respect of a worker by his employer under s.13(4)(b) must be construed as the taking of some other “disciplinary action” in respect of a worker and that where the purpose of the meeting is simply to inform an employee that by reason of redundancy he is to be dismissed, that is not a disciplinary hearing. In the case before the tribunal, the procedure was never a disciplinary procedure and never fell within s.10.

(d) Remedy

38. If an unfair dismissal complaint is well founded, remedy is determined by sections 112 onwards of the ERA. Where re-employment is not sought, compensation is awarded by basic and compensatory awards.

39. The basic award is a mathematical formula determined by s.119 ERA. Under section 122(2) it can be reduced because of the employee’s conduct:

Where the tribunal considers that any conduct of the complainant 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 reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

40. The compensatory award is primarily governed by section 123 as follows:

(1) Subject to the provisions of this section and sections 124, 124A and 126 the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer…. (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding……

41. Section 123(1) means that the compensatory award can be reduced if the

Tribunal considers that a fair procedure might have led to the same result, even if that would have taken longer (Polkey v A E Dayton Services Limited [1988] ICR 142).

42. The leading authority on deductions for contributory fault under section

123(6) remains the decision of the Court of Appeal in Nelson v British Broadcasting Corporation (No. 2) [1980] ICR 111. The Tribunal must be satisfied that the relevant action by the claimant was culpable or blameworthy, that it caused or contributed to the dismissal, and that it would

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be just and equitable to reduce the award. Submissions 43. Both legal representatives for the parties had provided written submissions

on liability and remedy which they used as the basis for their submissions to the tribunal after the evidence was completed. The tribunal considered these submissions carefully prior to reaching its decision. The cases referred to in the submissions were:

a. Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466 b. Dobie v Burns International Services (UK) Ltd [1984] ICR 812 c. Talon Engineering v Smith [2018] IRLR 1104 d. Lund v St Edmund's School, Canterbury UKEAT/0514/12 (8 May

2013, unreported) e. London Underground Ltd v Ferenc-Batchelor [2003] ICR 656 f. Heathmill Multimedia Asp Ltd v Jones and Jones [2003] IRLR 856 g. Edwards v Curtis UKEAT/845/95 h. Polkey v A E Dayton Services Limited [1988] ICR 142).

Analysis and conclusions (a) Reason for dismissal

44. The tribunal accepts that the reason for the Claimant’s dismissal was not

because of her conduct or performance but because MM issued an ultimatum, namely that she did not want the Claimant on site. Whilst the reason for the stance taken by MM did relate to the Claimant's behaviour and performance, the tribunal accepts that the Respondent's hands were tied, and their actions were driven by the decision of MM rather than the conduct and performance of the Claimant. Given the choice, the tribunal accepts the Respondent would have followed a disciplinary process to manage these issues but in this case that did not happen. The tribunal is satisfied that the reason for dismissal was SOSR (third party pressure) and the Respondent therefore discharged the burden under s.98(1) ERA. (b) Fairness of dismissal

45. Dealing first with whether the ACAS code applies to this case, the tribunal

concludes, having considered the authorities, that the ACAS code does not apply. That is principally because in this case the disciplinary procedure was never invoked by the Respondent. Indeed, the letter to Claimant (referred to above) inviting the Claimant to a meeting on 14 January 2019 expressly states: “these two matters would [tribunal’s emphasis] usually result in action in line with the disciplinary procedure”.

46. Whilst the ACAS code does not apply in this particular case, the

Respondent still has to comply with s.98 ERA which requires that the dismissal is fair. The tribunal had little difficulty concluding that the procedure relating to both the dismissal and the appeal was unfair.

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47. The Claimant was invited to a meeting only two days after she received the invitation, and before she had even returned from annual leave. She, quite reasonably in the tribunal’s view, wanted to obtain advice from her union on the letter and wanted to arrange to be accompanied at the meeting. Notwithstanding what is said below about the statutory right to be accompanied, the tribunal was troubled by the speed at which the Respondent wanted to proceed with the meeting and the fact that there was no attempt to assist the Claimant by offering her other options for a hearing date or for being accompanied or being flexible at all, given that she wanted someone with her at the meeting.

48. The tribunal rejects the Respondent's assertion that the purpose of the meeting on 14 January 2019 was simply to inform the Claimant that she was being dismissed. The letter from the Respondent (see paragraph 15 above) says: “I must advise you that it may be necessary to terminate your employment”. Even if the client was not going to change its mind, the meeting would have enabled discussion about the possibility of redeployment to another cleaning job within the company. The Tribunal concludes that no reasonable employer would have proceeded at such speed and not postponed the meeting to allow the Claimant to attend. The effect was that it denied the Claimant the right to be heard and the opportunity to discuss whether there were alternatives to dismissal.

49. The tribunal concludes that the defects in procedure were not remedied on appeal. It was troubled by the fact that, on the one hand, the Respondent's insistence on the Claimant providing grounds of appeal before an appeal hearing could proceed, was the reason that the appeal did not go ahead; on the other, CW said in her evidence that it was because of the Claimant's insistence on bringing her trade union representative. CW’s evidence to the tribunal was therefore inconsistent with her written communication to the Claimant at the time. The appeal was an opportunity to provide the Claimant with a further opportunity to be heard, but the Respondent placed unnecessary obstacles in the way, which meant that the appeal hearing did not take place.

50. The following failures by the Respondent have led the tribunal to conclude that the Respondent's actions fell outside the band of reasonable responses open to an employer:

a. the refusal to allow the Claimant to be accompanied to a meeting where the termination of her employment for SOSR was to be discussed, notwithstanding what is said below about the statutory right to be accompanied;

b. the lack of any assistance to the Claimant or offer of alternatives to bringing a trade union representative to the meeting, given that the termination of employment was being contemplated;

c. the refusal to postpone the meeting (scheduled for 14 January 2019) to a later date to allow the Claimant to attend, as well as to prepare for the meeting and further discuss with the Respondent her desire

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to be accompanied,

d. the failure to provide any opportunity to discuss with the Claimant alternatives to dismissal and opportunities for redeployment;

e. the unnecessary placing of obstacles to an appeal hearing taking place and the inconsistency in the Respondent's reasons for the appeal not proceeding,

51. As a result of the above procedural defects it could not be said that the

Respondent properly and meaningfully considered the injustice to the Claimant, prior to her dismissal, as it was required to do, and did not explore the possibility of redeployment with the Claimant. The claim for unfair dismissal is therefore well founded and succeeds. (c) Statutory right to be accompanied

52. The tribunal concludes in light of the case of Heathmill Multimedia Asp Ltd v Jones and Jones [2003] IRLR 856 and in view of the meeting on 14 January not being a disciplinary hearing, or a hearing conducted as part of the disciplinary procedure, that the statutory right to be accompanied did not apply. Accordingly the Claimant's claim must fail and is dismissed. (d) Remedy

53. Notwithstanding the tribunal’s findings on the fairness of the dismissal, it concludes that even had the above procedural defects not been present, the Claimant would still have been dismissed. The tribunal is satisfied that nothing the Claimant could have said would have changed the view of MM. As far as opportunities for redeployment are concerned, the tribunal accepts that these were very limited. Having carried out a search of vacancies, there was only one vacancy in Caterham which the tribunal concludes would not have been acceptable to the Claimant on the grounds of travelling time, which the tribunal accepts was in excess of one hour. The tribunal concludes, however, that the Claimant would have been employed for a further two weeks whilst the process of reconvening a meeting and a decision taken as to whether there was any alternative to dismissal, was completed.

54. The tribunal also finds the Claimant's conduct, by her behaviour during the audit on 31 December 2018, contributed in some part to her dismissal as it was one factor which the tribunal believes contributed to the intransigence of MM with regards the Claimant being able to continue to be employed as a cleaner at the office where she worked. The tribunal therefore assesses contributory fault to be 30%.

55. The tribunal awards the Claimant the following sums:

Description Award Basic Award (6x£508.00) 3048.00 Compensatory award after Polkey

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reduction (2 weeks’ pay at £549.92) 1099.84 Subtotal 4147.84 Less 30% contributory fault 1244.35 Total Award: 2903.49

56. No award is made for loss of statutory rights given the tribunal’s finding that

the Claimant would still have been dismissed but for the procedural unfairness, after two weeks.

57. There is no uplift to the compensatory award for failing to comply with the ACAS code given the tribunal’s above finding that it did not apply in this case.

……………………………………………… Employment Judge Hyams-Parish

21 August 2019

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