Employment Tribunal Allows Unfair Dismissal Claim

OUTCOME: Allowed in Part

Case Number: 3303443/2024 and 3303479/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

On: 28,29, 30 October 2025

Before: Employment Judge Cowen

Mrs C [NAME]

Mrs P [NAME] Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

1. The Claimant’s claim for unfair dismissal succeeds and a remedy hearing will take place on 27 January 2026 2. The Claimant’s claims for discrimination on the grounds of age, race and disability are dismissed.

WRITTEN REASONS

Introduction 1. The parties provided an agreed bundle of documents and two witness statements from the Claimant and one from each of Mrs [APPELLANT] and Mrs [APPELLANT] on behalf of the Respondent. The Claimant also provided a bundle of documents which she considered relevant (only two pages were referred to during the hearing).

2. The List of Issues which was set out in the Case Management Order of 7 July 2025 was followed by the parties and the panel.

3. The first morning was used to complete the Tribunal’s reading. Unfortunately Mr [APPELLANT] was not available to attend on the afternoon of the first day and an application to postpone the afternoon session was accepted on the grounds that it would not be in the interests of justice to allow the hearing to proceed without the presence of the [COUNSEL] counsel. No specific reason was given for his absence, other than the fact that the Claimant had been informed of this in advance of the hearing and

had agreed to it.

4. The parties were provided with an oral judgment on the final day of the hearing. At that time, orders for the preparation of a remedy hearing were also given. Written reasons were requested and are set out below.

Facts 5. The [APPELLANT] worked as a registered [NAME] in Respondent’s care home which had 12 beds for elderly, dementia and learning disability service users.

6. She initially worked as a bank [NAME], working extra hours with the Respondent, on top of her other full time job. This was on an ad hoc basis to begin with and became a regular shift.

7. At the time of her interview and appointment in 2018, the Respondent was aware that the Claimant was a type 2 diabetic and that she was insulin dependent. This was declared on her medical forms and the [NAME] manager of the Respondent would have understood what this meant.

8. On 15 September 2021 the [APPELLANT] signed an employment contract with the Respondent. The contract did not indicate any regular hours, or even the number of hours each week. This was by arrangement – similar to a zero hours contact. Both sides being able to offer and to accept or reject the work.

9. The Claimant was a good worker, a skillful [NAME] and a reliable employee for the Respondent. The Respondent never had any concerns about her nursing practice and were pleased to have her within their team.

10. The Respondent was a supportive employer, who was aware of the fact that the Claimant had diabetes and was attuned to the fact that the Claimant said she could not work nights all the time due to her diabetes.

11. Around November 2022 the [APPELLANT] returned to work after she collapsed at her other place of work, and asked for extra shifts with Respondent. Thereafter the Claimant regularly worked one long day and then other shifts during the week, including occasional nights.

12. The Respondent also supported the [APPELLANT] in early 2023 when she needed to travel to Trinidad to look after her mother and allowed her to take 2 weeks off. The Claimant was due to return to work on 15 March 2023.

13. On 18 March 2023 the Claimant wrote an email to Mrs [APPELLANT], the home manager, outlining the fact that she had left the UK once again, due to a domestic issue in the UK. She said in the email that she was going to take some time away and that she would return to work in ‘2 months or so’.

14. Mrs [NAME], Operations Director, replied to the email saying it had been forwarded to her. The reply indicated that this was not ideal for the organisation as the Claimant had already been allocated shifts. It said that due to the uncertainty of the Claimant’s return date, the organisation would need to recruit [NAME] Staff [NAME] to support the rota. Mrs [APPELLANT] told the

Claimant that she “ welcome you keeping us updated” and to “contact [NAME] when ready to return back to work and [NAME] will gladly update you where the home is in regards to any [NAME] shifts available”.

15. The Claimant replied to say that she knew the importance of keeping the home well staffed and that any [NAME] joining the company would be well supported.

16. On 26 April 2023, Mrs [APPELLANT] sent a WhatsApp message to the Claimant’s UK mobile phone, asking for an update on her wellbeing. That message did not reach the Claimant, as she was in Trindad, using a different mobile phone number. She therefore did not reply.

17. The Claimant then did not contact the Respondent until sometime around 4 May 2023, when it seems she made a telephone call to the home for 6 minutes. Whilst the Tribunal accepted the Claimant’s evidence that a call was made, we did not accept that the Claimant spoke to Mrs [APPELLANT], nor Mrs [APPELLANT] during that call. We do not accept that a further date for return was discussed, nor that the Claimant provided any information updating management about her situation.

18. The Respondent had been using agency nurses to cover shifts, but wanted to avoid this in order to maintain continuity for their service users. The Respondent therefore took steps to recruit [NAME] [NAME] in May 2023. They did so on the same basis that the Claimant had worked, with no guarantee of work. Hence, if the Claimant were to return, they would still be able to offer her work too.

19. [NAME], a black [NAME] was recruited to work some shifts in the home. She preferred to work nights and therefore the rota was amended to ensure that the existing staff covered the Claimant’s day shifts.

20. Mrs [APPELLANT] tried to contact the Claimant again on 12 June 2023, saying she hoped things in her personal life had settled and asking her for an update on her plans about working shifts at the home and when this might happen. She indicated that the Claimant’s last communication with Ms [APPELLANT], she had said that she might start shifts in June and that they had no further update.

21. Once again, the Claimant did not reply to this as it was sent to her UK phone number.

22. Mrs [APPELLANT] therefore had no idea if, or when, the Claimant would return to work at the home.

23. There came a point where the Respondent created the vacancy for [APPELLANT] by the dismissal of the Claimant, this was the timing of the dismissal.

24. In October 2023, Mrs [NAME] and Mrs [APPELLANT] took the decision to terminate the Claimant’s contract. They had had no contact with her since March 2023 and no indication of when she might return to work and [NAME] was asking to be made a permanent member of staff.

25. They did not attempt to hold any meeting to discuss the Claimant’s return

to work. A letter was sent to the Claimant’s home address, by post only, indicating that her employment was being terminated and her P45 would be sent at the end of October.

26. Mrs [NAME] told the Tribunal that the dismissal letter of 3 October was the start of the process and that she expected the Claimant to respond to it, if she wanted to continue to work there.

27. Mrs [APPELLANT] told the Tribunal that she considered the Claimant’s actions to be Gross Misconduct in accordance with the employee handbook as the Claimant had failed to follow a reasonable management instruction of keeping them updated. The letter referred to the reason for dismissal as the Claimant’s failure to keep the employer informed of her situation.

28. The Claimant did not respond to this letter until she called the home sometime shortly before 21 November 2023. At that point she told Mrs [NAME] that she was back in the UK and wanted to come to the home to collect documents to allow her to complete her nursing revalidation. Mrs [NAME] told her she could attend any time that Mrs [APPELLANT] was at work.

29. The Claimant therefore went to the home on 21 November. This was an informal meeting at which the Claimant asked for documents which she thought were held by the Respondent. She was told by Mrs [RESPONDENT] and [RESPONDENT], the office administrator, that as she had been removed from the [NAME] and they could not access her documents, but that in any event those documents had expired. She was offered copies of other documents such as appraisals, which the Respondent held.

30. At that meeting, the Claimant did not request to return to work and did not ask for shifts to be allocated to her. Mrs [APPELLANT] did tell the Claimant that if she were able to complete her revalidation, there may be shifts available for her in January. The Claimant did not respond to this.

31. The Claimant wrote a grievance on 24 December 2023. It was not clear if this was ever sent to the Respondent, but if it was, it was not seen by the Respondent and the Claimant did not mention it further. The Claimant sent a further document on 15 January 2024 outlining her complaints. This resulted in a grievance meeting being held on 19 February 2024, with Mrs [APPELLANT], at which the Claimant was represented by an RCN officer. The Claimant herself was unable to connect to the video conference and told them to go ahead without her. The grievance raised, amongst other things, her shock that she was told that she had been dismissed and her belief that policies had been breached in the process of her dismissal.

32. The outcome of that meeting was a letter on 22 February 2024, which dismissed the Claimant’s grievance. Mrs [APPELLANT] made the decision that the dismissal had been appropriate and that they had attempted to contact the Claimant without success..

The Law 33. Unfair Dismissal The Tribunal has to have regard to the following provisions of the law:

Section 98(1) Employment Relations Act 1996 “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— …..(b)relates to the conduct of the employee,”

34. Section 98(4) Employment Relations Act 1996 “Where there 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.”

35. In relation to a conduct dismissal the Tribunal must consider whether the dismissal was unfair. In doing so they consider the following issues in accordance with s.98 Employment Rights Act 1996 (‘ERA’) and [NAME] v Burchell [1978] ICR 303; a. What was the principal reason for the dismissal and was it a potentially fair reason in accordance with section 98 of the Employment Rights Act 1996? b. Was the dismissal fair in all the circumstances in accordance with equity and the substantial merits of the case (and section 94 of the Employment Rights Act 1996)? c. Did the respondent have a genuine belief in the misconduct which was the reason for dismissal? d. Did the respondent hold that belief in the claimant’s misconduct on reasonable grounds? e. Did the respondent carry out a reasonable investigation in all the circumstances? 36. In considering s.98(4) the ET must be satisfied that the employer has acted reasonably in all the circumstances in treating that reason as sufficient. We note that there is no burden of proof and we must consider all the facts in order to reach our own conclusion as to whether the decision to dismiss lay within the band of reasonable responses

37. The fact that other employers might reasonably have been more lenient is irrelevant (see the decision of the Court of Appeal in [NAME] (UK) [COMPANY] v Swift [1981] IRLR 91

38. It is not necessary to consider whether the appeal was a review or a rehearing as [NAME] v OCS Group Limited [2006] IRLR 613, CA indicated that what is important is that the procedure was fair overall. It also sets out that an appeal can correct any defect in the initial investigation or procedure.

39. Disability Section 6(1) Equality Act 2010 (EqA) states: “[NAME] (P) has a disability if— P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

Direct discrimination 40. Section 13 of the Equality Act 2010 provides that “[NAME] (A) discriminates against [NAME] (B) if, because of a protected characteristic, A treats B less favourably than [NAME] treats or would treat others”.

41. Under section 23(1), where a comparison is made, there must be no material difference between the circumstances relating to each case. It is possible to compare with an actual or [NAME].

42. In order to find discrimination has occurred, there must be some evidential basis on which we can infer that the Claimant’s protected characteristic is the cause of the less favourable treatment. We can take into account a number of factors including an examination of circumstantial evidence.

43. We must consider whether the fact that the Claimant had the relevant protected characteristic had a significant (or more than trivial) influence on the mind of the decision maker. The influence can be conscious or unconscious. It need not be the main or sole reason, but must have a significant (i.e. not trivial) influence and so amount to an effective reason for the cause of the treatment.

44. In many direct discrimination cases, it is appropriate for a tribunal to consider, first, whether the Claimant received less favourable treatment than the appropriate [NAME] and then, secondly, whether the less favourable treatment was because of race. However, in some cases, for example where there is only a [NAME], these questions cannot be answered without first considering the ‘reason why’ the Claimant was treated as she was.

Decision Unfair dismissal 45. The Respondent’s letter of dismissal names two separate reasons for dismissal; Firstly, unauthorised absence and secondly failure to keep employer informed on the situation ie. not following reasonable management request

46. The Respondent asserted that this is a dismissal for ‘some other substantial reason’. In fact the letter of dismissal sets out conduct reasons and Mrs [NAME] evidence referenced gross misconduct . Based on the Respondent’s own evidence therefore, the Tribunal considered this was a dismissal due to reasons of conduct. On that basis the disciplinary policy

applied and the Claimant should have been the subject of a disciplinary process.

47. The potentially fair reason for dismissal was therefore conduct.

48. The Tribunal were satisfied that the evidence showed that the Claimant had left work without an agreement; telling her employer she would be away for about 2 months.

49. The Respondent told the Claimant that this was acceptable, but to keep them informed. This placed the responsibility on the Claimant to update the Respondent, which the Claimant failed to do.

50. The Tribunal found that the Claimant did not speak to Mrs [APPELLANT] nor Mrs [APPELLANT] on 5 May and did not indicate to the Respondent at any time that she would return in November 2023. Whilst she clearly called the home around that date and spoke to someone, the Tribunal accepted Mrs [NAME] and Mrs [NAME] evidence that they did not have a conversation with the Claimant. The Tribunal accepted that the further communication from the Respondent was consistent with them not having heard from the Claimant in May and therefore accepted the Respondent’s position.

51. The Tribunal also found that the Respondent did attempt to contact the Claimant in April and in June 2023, although the Tribunal were not satisfied that these messages were seen by the Claimant.

52. The evidence before the Respondent at the time of their decision to dismiss was that the Claimant had failed to keep them informed and failed to respond to the Respondent’s attempts to contact the Claimant.

53. Mrs [APPELLANT] was aware that the Claimant had not been in touch since March with her or Mrs [APPELLANT]. She considered that this meant that the Claimant’s absence was unauthorised as it had gone beyond the 2 or so months which the Claimant had indicated. In short the Claimant was not there and had not been in touch to authorise her absence.

54. The Tribunal were satisfied based on the evidence, that Mrs [APPELLANT] had a genuine belief that the Claimant was on an unauthorised absence and that she had failed to keep in touch with them. She had reasonable grounds for her belief, as she had tried herself to communicate with the Claimant and had been involved in the initial communication with her.

55. The Tribunal then considered whether there had been a reasonable investigation and procedure;

56. The Tribunal noted that the Respondent made no attempt to contact the Claimant, to invite her to an investigatory or disciplinary meeting prior to a decision being made to dismiss.

57. The Claimant therefore was not aware that the Respondent was considering dismissal, nor did she have the opportunity to respond to it before the decision was taken. The Tribunal were satisfied that was a breach of the ACAS code of disciplinary procedure.

58. The Tribunal also did not consider that the Respondent gave the Claimant any opportunity to appeal. The Tribunal considered that the Respondent’s submission that the letter was the start of the process and that it considered the Claimant’s grievance to be an appeal, was not in accordance with the ACAS code of practice and therefore not appropriate. The Tribunal noted that the Respondent admitted by way of Mrs [RESPONDENT] evidence, that it did not follow this process

59. The Tribunal concluded that the lack of process would make this dismissal initially unfair.

60. The Tribunal considered whether the grievance process acted as an effective appeal of the decision to dismiss and corrected the procedural errors. The Tribunal were not satisfied that this was the case, as this decision was taken by Mrs [NAME] who was part of the dismissal decision and issued the dismissal letter . The Tribunal considered that it was not appropriate for her to consider an appeal of her own decision.

61. Furthermore, we noted that the Claimant was not present (her choice) and did not have the opportunity to discuss her communication or lack of it during the hearing.

62. The Tribunal considered whether it would have been utterly useless or futile to have carried out a proper process with the Claimant.

63. The Tribunal considered that the Respondent, as the employer of around 21 people ought to have followed the ACAS code and ought to have given the Claimant an opportunity to respond before the decision to dismiss. The Tribunal felt that it could not say that it would have utterly useless or futile to have given the Claimant that opportunity.

64. The Tribunal therefore will consider on a future date, the issue of [APPELLANT] and the extent, if any, of the [APPELLANT] contributory behaviour.

Discrimination Claims

65. There are two alleged acts of direct discrimination; Direct discrimination occurs where under s.13 A Equality Act 2010 treats B less favourably than he did or would treat [NAME] who does not have the Protected Characteristic which B has.

66. In this case, the [APPELLANT] said she was [NAME] of 57 years at the time, she was [NAME] and was disabled with diabetes.

67. The Tribunal accepted that these were her protected characteristics. The Tribunal also accepted that the [APPELLANT] diabetes amounted to a disability and that the Respondent knew this. The fact that the Claimant indicated that she was insulin dependent and that it would be known to the Respondent as a health care provider, that without her insulin the Claimant would become ill and ultimately incapacitated, was sufficient for the Tribunal to consider that the Respondent had knowledge of a disability.

68. There were 2 acts which the Claimant relied upon as acts of direct discrimination due to any of her Protected characteristics.

Dismissal 69. The Tribunal noted that the Respondent accepted that the Claimant was dismissed. The Tribunal accepted that the [APPELLANT] was age 57 at the time of her dismissal. The Tribunal considered whether the [APPELLANT] had provided any evidence from which the Tribunal could infer that age was the reason for the [APPELLANT] dismissal. The [APPELLANT] did not put forward any such evidence. In her oral evidence to the Tribunal she did not give any explanation as to why she thought that the Respondent had been motivated by her age, when considering her dismissal.

70. The Tribunal were satisfied that the Respondent’s evidence showed no connection to the [APPELLANT] age was made at the time the decision to dismiss was made. The Tribunal were satisfied that the reason for her dismissal was her unauthorised absence and her failure to communicate with her employer. Neither of these has any connection with the [APPELLANT] age.

71. The Tribunal were satisfied that there were no facts from which it could be inferred that age an active reason for the [APPELLANT] dismissal.

Race 72. The Tribunal accepted that the [APPELLANT] was [NAME]. We considered whether race was a reason for her dismissal. The Tribunal found no facts from which they could infer that the reason /principal reason for dismissal was due to her being [NAME]. As stated, the reason for her dismissal was due to her absence and her failure to communicate, they were not related to race in any way.

73. For the sake of clarity the Tribunal made it clear that this was an allegation of direct discrimination and therefore the Tribunal had to consider whether the Claimant was treated less favourably than a [NAME] who had also taken unauthorised absence and failed to communicate with the Respondent, but whom was not [NAME]. The Tribunal considered that they would have been treated in the same way and therefore there was no discrimination.

Disability 74. The Tribunal accepted that the [APPELLANT] had type 2 diabetes and that this amounted to a disability. The Tribunal accept that the Respondent knew she was diabetic. However, the Tribunal found no facts from which they could infer that the reason/principal for dismissal was due to her diabetes. The Claimant gave no evidence which connected her dismissal with her disability.

75. Once again, the Tribunal considered a [NAME] – someone without diabetes. They too would have been dismissed for unauthorised absence and failure to communicate.

76. In relation to the allegation that the Claimant was replaced with a [NAME], after her dismissal. The Tribunal considered this to be primarily an age discrimination claim. However, as the [APPELLANT] had not clarified whether this claim was limited to age, they considered it with

reference to all 3 protected characteristics, in turn;

Age 77. The Tribunal did not consider that the reason the Claimant was replaced with a [NAME] following her dismissal was due to the Claimant’s age. The Claimant’s evidence to the Tribunal did not indicate that she considered that she had been treated less favourably than anyone else. The Tribunal considered the reason why and concluded that the evidence showed the reason for recruitment of [NAME] [NAME] was to ensure continuity of care and maintain the rota.

78. Once again, for the sake of clarity the Tribunal considered whether a [NAME], someone who was on unauthorised absence and failed to communicate would have been replaced with a [NAME], after they had been dismissed. The Tribunal considered that this was just as likely and therefore the Claimant was not treated less favourably.

Disability 79. The Tribunal considered the evidence and concluded that the Claimant was not replaced with a [NAME] person after dismissal, due to the [APPELLANT] disability. The Tribunal saw no evidence to support the assertion that the [APPELLANT] disability had anything to do with the choice of who replaced her. This allegation was not supported and dismissed.

Race 80. Finally the Tribunal considered whether the [APPELLANT] was replaced with someone [NAME] because the Claimant was [NAME]. There was no evidence to suggest that the reason for hiring a [NAME] replacement person was due to the Claimant’s race or ethnicity. The Tribunal could see no evidence from which they could infer that the decision was related to her race.

81. A [NAME] ([NAME]) who was dismissed for unauthorised absence and failure to communicate with her employer, would also have been replaced with a [NAME]. Therefore the Claimant was not treated less favourably.

Approved by:

Employment Judge Cowen

25 November 2025

JUDGMENT SENT TO THE PARTIES ON 26 November 2025

FOR THE TRIBUNAL OFFICE

Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents.

If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/

Case Nos: 3303479/2024 and 3303443/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Watford (by CVP)

On: 30 April and 1 May 2025

Before:

Employment Judge Dick

Representation Claimant: [redacted] Respondent: [redacted]

JUDGMENT

1. The respondent’s application to strike out the claim is refused.

2. The complaint of unfair dismissal was presented within the applicable time limit and will therefore proceed.

3. The complaints of disability, age and race discrimination relating to dismissal were presented within the applicable time limit and will therefore proceed.

4. The complaints of disability, age and race discrimination relating to the appointment of [NAME] when the claimant was absent were not presented within the applicable time limit, but it is just and equitable to extend the time limit. Those complaints will therefore proceed.

5. The complaints of disability, age and race discrimination relating to an incident in November 2022 were not presented within the applicable time limit. It is not just and equitable to extend the time limit and those complaints are therefore dismissed.

6. At the relevant times the claimant was a disabled person as defined by section 6 Equality Act 2010 because of insulin-dependent type 2 diabetes. The respondent was aware of that from the start of the claimant’s employment.

Approved by:

Case Nos: 3303479/2024 and 3303443/2024

Employment Judge Dick

28 May 2025

JUDGMENT SENT TO THE PARTIES ON

28 May 2025

FOR THE TRIBUNAL OFFICE

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online.

All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/

Case Number: 3303479/2024, 3303443/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents: [redacted] On: 27 January and

16 February (deliberation) 2026

Before: Employment Judge Cowen

Mrs P [NAME]

Mrs C [NAME] Claimant: [redacted]

Respondent: [redacted]

RESERVED JUDGMENT

1. The Respondent shall pay the Claimant £nil in compensation for unfair dismissal.

2. The Claimant shall pay the Respondent £300 in respect of costs.

3. The Claimant’s deposit of £300 shall be paid to the Respondent and deducted from the costs award

4. There is no recoupment in this case.

REASONS

1. Hearing The Hearing was listed for 1 day to consider remedy as a result of the liability judgment dated 25 November 2025. The parties provided an agreed bundle and the Claimant provided some additional documents. These bundles were not referred to in any detail and contained a number of documents which neither party referred to. The Tribunal only considered the documents they were taken to in evidence.

2. The Tribunal heard from Ms [APPELLANT], Mrs [NAME] and Mr [APPELLANT], all of whom confirmed their witness statements and were cross examined.

3. Both parties made oral submissions to the Tribunal.

Statutory Provision 4. S.118 ERA sets out that the Tribunal shall award a basic and a compensatory award in cases of unfair dismissal.

5. Under s122(2) and s.123(6) ERA, the amount of the basic and/or compensatory award may be reduced to take account of contributory conduct by the Claimant, before or at the time of dismissal.

6. The Tribunal will consider whether the appropriate use of the ACAS Code of Practice on Disciplinary and Grievance has been followed and if not, it may award an uplift of up to 25%.

7. Similarly where the dismissal was unfair for procedural reasons, the Tribunal may consider whether, had a fair procedure been followed, what difference this would have made to the outcome. This is referred to a [NAME] reduction, with regard to [NAME] v [COMPANY] 1988 [NAME]

8. The Tribunal judgment set out that the Respondent had made no attempt to contact the Claimant to invite her to an investigatory or disciplinary meeting.(para 56) The Tribunal noted that this was a breach of the ACAS code of disciplinary procedure (para 57).

9. The evidence at the remedy hearing by both Mrs [NAME] and Mr [NAME] was that had they followed a process and invited the Claimant to an investigatory meeting, the outcome would not have been any different. Mrs [APPELLANT] evidence was that the Claimant’s failure to maintain communication was all that they had asked her to do, when agreeing to allow the Claimant the time off. She had failed to do this. She outlined that the Respondent had tried on a number of occasions to contact the Claimant, by way of WhatsApp

to the contact number they had for her and had received no response.

10. Mrs [APPELLANT] told the Tribunal that she did not think that the Claimant would have responded to an invitation to an investigation or a disciplinary hearing. She also said that she felt that if the Claimant’s job was that important to her, she should have kept in touch. Mrs [APPELLANT] denied that she knew that the claimant was abroad in October 2023, as the Claimant had not told them where she was at that time. This evidence was accepted by the Tribunal.

11. Mr [NAME] said that had he undertaken the appeal part of the process he too would have concluded that the Claimant should be dismissed for her failure to follow the request to keep in touch.

12. In contrast, the Claimant’s evidence did not assert that she would have participated in any disciplinary process. She said that when she left she put a box under the door to collect letters and said there was no letter there.

13. The Tribunal concluded that in order to carry out a fair procedure (and comply with ACAS code) the Respondent ought to have invited the Claimant to an investigatory meeting with respect of her failure to contact the Respondent. Thereafter, they should have invited her to a disciplinary hearing. If the Claimant did not attend, it would be reasonable for the Respondent to have given her a final opportunity to attend, explaining that they would take a decision in her absence, if she did not attend on this occasion.

14. The Tribunal considered that at that final appointment, the Respondent would have decided to dismiss in any event as the [APPELLANT] had both failed to maintain contact and failed to return to work as she had indicated when she left.

15. The obligation was on the [APPELLANT] to keep her employer informed of her whereabouts and her plan to return to work. She had failed to do so.

16. The Tribunal concluded that had the Respondent carried out a reasonable and fair procedure, the Claimant would have been dismissed in any event by 31 October 2023, as the process would have taken approximately 3-4 weeks to complete.

17. The Tribunal concluded that the Claimant was entitled to a compensatory award up to 31 October 2023 only, as they were sure that the dismissal would have occurred at that point, in any event. The Tribunal noted that the Claimant would not have been working in any event between 3 October and 31 October 2023. There was no evidence to suggest that the Claimant was available for work at that time. Therefore the Tribunal concluded that the Claimant had not suffered any loss of earnings in that period.

18. The Tribunal acknowledged that the Claimant signed a contract to work 2 x 12 hour shifts per week on 15 September 2021 and considered this to be the relevant contract of employment for the purposes of calculating the basic award. The Tribunal noted that the Claimant was over 41 years at that time of her dismissal and that her weekly gross earnings were £518. An award of £1,544 was therefore made.

Contributory Fault by the Claimant

19. The Tribunal reminded itself that the issue of contribution is split into two separate considerations. The first with regard to the basic award, under s.122(2) ERA, requires the Tribunal to consider the conduct of the employee prior to the dismissal and gives the Tribunal a wide discretion as to whether to make a deduction. The second, with regard to the compensatory award, under s.123(6) ERA, requires the Tribunal must be satisfied that the Claimant’s conduct caused or contributed to his dismissal; [APPELLANT] v [NAME] 1999 ICR 984, EAT. Where they are so satisfied, they must make a deduction; [COMPANY] v [NAME] 1992 ICR 302, CA,

20. The Tribunal also took into account the test in [NAME] v ASP Packaging [2014] ICR for award of damages under s.123 ERA; the Tribunal must; i) Look at the conduct which gave rise to contributory fault ii) Consider whether the conduct is blameworthy (1) Focus on what the employee did- matter of fact iii) Consider whether the conduct contributed at all to the dismissal iv) What extent should award be reduced – what is just and equitable

21. The Tribunal considered that the failure by the Claimant to maintain contact with the Respondent whilst she was absent was conduct which gave rise to contributory fault. Had the Claimant maintained her obligation to keep in touch, the Respondent would not have taken steps to dismiss her.

22. The Tribunal considered that the conduct was blameworthy to the extent that this was the solitary reason for the dismissal, as the Respondent said that even having hired others, the [APPELLANT] would still have been able to return to work.

23. The Tribunal were satisfied that this was the only reason for the dismissal. There was no other reason, nor conduct by the Respondent which led to the dismissal.

24. The Tribunal were therefore satisfied that the [APPELLANT] contribution to her dismissal was 100%. She had entirely led this situation and there could be no other reason for it. The Tribunal accepted that the Respondent would otherwise have continued to find work for the [APPELLANT], had she maintained

her communication.

25. The Tribunal therefore considered that 100% contribution was appropriate to the basic award, as this conduct had occurred prior to the dismissal.

26. The effect of this contribution was to reduce the Claimant’s basic award to nil.

27. Likewise, the Tribunal were satisfied that this should also apply to the statutory rights award. The [APPELLANT] own actions were what caused her to lose her statutory rights and therefore no award should be made. ACAS uplift 28. The Tribunal were entirely satisfied that the ACAS guidelines on grievance and disciplinary procedures did apply to the [APPELLANT] dismissal. However, given that the [APPELLANT] award has been reduced by 100% for reasons of her contribution, it is irrelevant to make any uplift on her award.

Recoupment 29. There being a nil award of compensation in this case, there is no recoupment calculation to make.

Costs 30. The Tribunal’s findings in the liability judgment indicate that there was no evidence from which it could be inferred that race, age or disability played any part in the reason for dismissal. This reflected the view of [NAME] in the reasons given for the making of a deposit order when he said “ Whatever failings there were in that process will be addressed as part of the complaint of unfair dismissal. The Claimant’s contention that someone of a different age, or race, or without the Claimant’s disability, was or would have been treated more favourably in those circumstances lacks any evidential basis”.

31. In accordance with rule r40(7) (a), “[NAME] must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order, or preparation time order may or must be made), unless the contrary is shown..”

32. Rule 74 (2) “The tribunal must consider making a costs order or a preparation time order where it considers that- (a) [NAME] (or that parties representative) have acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted…”

33. In accordance with rule 40(7) the Tribunal found that the Claimant’s claims for discrimination having been dismissed, and the Claimant having therefore lost her deposit, the Tribunal must find, that the action of the Claimant in pursuing the discrimination claims amounted to unreasonable action.

34. The Tribunal considered whether it was appropriate and proportionate in light of all the circumstances of the case, to make a costs order. This included taking into account the [APPELLANT] means. The Tribunal was told very little about the Claimant’s current means, save that she started work in November 2025 as a teaching assistant for an agency, undertaking work on an ad hoc basis for £90 per day. It was not clear from the Claimant’s evidence how often she had carried out that work. The Tribunal were also told that the Claimant was in receipt of Employment Support Allowance since January 2024 and was therefore able to work for up to 15 hours per week without detriment to her benefits. When asked about how much she received, the Claimant said £107, £121, £93 per week. It was difficult to tell from this what income the Claimant has.

35. The Tribunal read the Respondent’s application for costs and accepted that the Respondent had had to undertake work to prepare to defend multiple discrimination allegations and had to use Tribunal time to address these in cross examination, despite the lack of any clarity in the Claimant’s own evidence about the potential link between her dismissal and her various protected characteristics.

36. The Tribunal considered that on balance they found that it would be appropriate and proportionate to make an order for costs, to reflect the fact that the [APPELLANT] had known that her allegations lacked an evidential basis and yet she continued to pursue them throughout the final hearing. The Tribunal also took into account the fact that the Claimant had been represented by Mr [APPELLANT] throughout the liability and remedy hearings, who described himself initially as a [NAME] and latterly as a [APPELLANT]. The Tribunal considered that the Claimant’s insistence on continuing with the discrimination claims was therefore inappropriate, causing additional work for the Respondent and warranted a costs award.

37. The Tribunal then considered the amount of the award. The Respondent’s schedule claimed for 5 hours of work by a solicitor, amounting to £1,260. The Tribunal considered this to be a little high, given the lack of documentation from the Claimant or any evidence which needed to be addressed.

38. The Tribunal also took into account the [APPELLANT] means and the relatively low and uncertain income which the Claimant appeared to have. She spoke of borrowing money from her daughter’s savings. The Tribunal did not see any

documentary evidence of the Claimant’s income or outgoings.

39. Doing the best it could with the very limited information which was provided, the Tribunal concluded that an award of costs of £300 would be proportionate and reflective of the Respondent’s additional work as a result of the failed allegations.

40. The Tribunal therefore ordered that the £300 deposit be paid to the Respondent and that this amount should be deducted from the costs award, leaving the Claimant £nil further to pay to the Respondent.

Approved by Employment Judge Cowen

16 February 2026

JUDGMENT SENT TO THE PARTIES ON 17 February 2026

FOR THE TRIBUNAL OFFICE

Case Number: 3303479/2024, 3303443/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondents: [redacted] On: 27 January and

16 February (deliberation) 2026

Before: Employment Judge Cowen

Mrs P [NAME]

Mrs C [NAME] Claimant: [redacted]

Respondent: [redacted]

CORRECTED RESERVED JUDGMENT

The Judgment has been corrected under rule 67 at the request of the Claimant, to show the designated status of the Claimant’s counsel.

4. There is no recoupment in this case.

REASONS

3. Both parties made oral submissions to the Tribunal.

9. The evidence at the remedy hearing by both Mrs [NAME] and Mr [NAME] was that had they followed a process and invited the Claimant to an investigatory meeting, the outcome would not have been any different. Mrs [APPELLANT] evidence was that the Claimant’s failure to maintain communication

was all that they had asked her to do, when agreeing to allow the Claimant the time off. She had failed to do this. She outlined that the Respondent had tried on a number of occasions to contact the Claimant, by way of WhatsApp to the contact number they had for her and had received no response.

14. The Tribunal considered that at that final appointment, the Respondent would have decided to dismiss in any event as the Claimant had both failed to maintain contact and failed to return to work as she had indicated when she left.

17. The Tribunal concluded that the Claimant was entitled to a compensatory award up to 31 October 2023 only, as they were sure that the dismissal would have occurred at that point, in any event. The Tribunal noted that the Claimant would not have been working in any event between 3 October and 31 October 2023. There was no evidence to suggest that the Claimant was available for

work at that time. Therefore the Tribunal concluded that the Claimant had not suffered any loss of earnings in that period.

18. The Tribunal acknowledged that the [APPELLANT] signed a contract to work 2 x 12 hour shifts per week on 15 September 2021 and considered this to be the relevant contract of employment for the purposes of calculating the basic award. The Tribunal noted that the Claimant was over 41 years at that time of her dismissal and that her weekly gross earnings were £518. An award of £1,544 was therefore made.

Contributory Fault by the Claimant

19. The Tribunal reminded itself that the issue of contribution is split into two separate considerations. The first with regard to the basic award, under s.122(2) ERA, requires the Tribunal to consider the conduct of the employee prior to the dismissal and gives the Tribunal a wide discretion as to whether to make a deduction. The second, with regard to the compensatory award, under s.123(6) ERA, requires the Tribunal must be satisfied that the [APPELLANT] conduct caused or contributed to his dismissal; [APPELLANT] v [NAME] 1999 ICR 984, EAT. Where they are so satisfied, they must make a deduction; [COMPANY] v [NAME] 1992 ICR 302, CA,

22. The Tribunal considered that the conduct was blameworthy to the extent that this was the solitary reason for the dismissal, as the Respondent said that even having hired others, the Claimant would still have been able to return to work.

24. The Tribunal were therefore satisfied that the Claimant’s contribution to her dismissal was 100%. She had entirely led this situation and there could be no other reason for it. The Tribunal accepted that the Respondent would otherwise have continued to find work for the Claimant, had she maintained her communication.

Costs 30. The Tribunal’s findings in the liability judgment indicate that there was no evidence from which it could be inferred that race, age or disability played any part in the reason for dismissal. This reflected the view of [NAME] in the reasons given for the making of a deposit order when he said “ Whatever failings there were in that process will be addressed as part of the complaint of unfair dismissal. The [APPELLANT] contention that someone of a different age, or race, or without the Claimant’s disability, was or would have been treated more favourably in those circumstances lacks any evidential basis”.

32. Rule 74 (2) “The tribunal must consider making a costs order or a preparation time order where it considers that- (a) [NAME] (or that parties representative) have acted vexatiously, abusively,

disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted…”

34. The Tribunal considered whether it was appropriate and proportionate in light of all the circumstances of the case, to make a costs order. This included taking into account the Claimant’s means. The Tribunal was told very little about the Claimant’s current means, save that she started work in November 2025 as a teaching assistant for an agency, undertaking work on an ad hoc basis for £90 per day. It was not clear from the Claimant’s evidence how often she had carried out that work. The Tribunal were also told that the Claimant was in receipt of Employment Support Allowance since January 2024 and was therefore able to work for up to 15 hours per week without detriment to her benefits. When asked about how much she received, the Claimant said £107, £121, £93 per week. It was difficult to tell from this what income the Claimant has.

35. The Tribunal read the Respondent’s application for costs and accepted that the Respondent had had to undertake work to prepare to defend multiple discrimination allegations and had to use Tribunal time to address these in cross examination, despite the lack of any clarity in the [APPELLANT] own evidence about the potential link between her dismissal and her various protected characteristics.

36. The Tribunal considered that on balance they found that it would be appropriate and proportionate to make an order for costs, to reflect the fact that the Claimant had known that her allegations lacked an evidential basis and yet she continued to pursue them throughout the final hearing. The Tribunal also took into account the fact that the Claimant had been represented by Mr [APPELLANT] throughout the liability and remedy hearings, who described himself initially as a [NAME] and latterly as a [APPELLANT]. The Tribunal considered that the Claimant’s insistence on continuing with the discrimination claims was therefore inappropriate, causing additional work for the Respondent and warranted a costs award.

37. The Tribunal then considered the amount of the award. The Respondent’s schedule claimed for 5 hours of work by a solicitor, amounting to £1,260. The Tribunal considered this to be a little high, given the lack of documentation

from the Claimant or any evidence which needed to be addressed.

38. The Tribunal also took into account the Claimant’s means and the relatively low and uncertain income which the Claimant appeared to have. She spoke of borrowing money from her daughter’s savings. The Tribunal did not see any documentary evidence of the Claimant’s income or outgoings.

Approved by Employment Judge Cowen

16 February 2026

Corrected Judgment Approved on 13.4.26

JUDGMENT SENT TO THE PARTIES ON 17 February 2026

FOR THE TRIBUNAL OFFICE