Unfair Dismissal Claim Rejected by Employment Tribunal

OUTCOME: Dismissed

Case Number: 3311629/2024

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Reading Employment Tribunal

On: 12, 13 and 14 January 2026

Before:

Employment Judge Hawksworth

Appearances: The claimant: [redacted] For the respondent: [redacted]

JUDGMENT having been sent to the parties on 10 March 2026 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024, the following reasons are provided:

REASONS

1. Note: these are full written reasons. Full reasons were given orally at the hearing. The hearing took place before rule 60 of the Employment Tribunal Procedure Rules 2024 was amended to provide for summary reasons. Introduction 2. This is a complaint of unfair dismissal. The claim was presented on 21 November 2024 and the response on 5 February 2025.

3. The hearing took place in Reading Employment Tribunal in person.

4. The respondent had prepared a bundle of documents to be used at the hearing. It had 297 pages. On the second day of the hearing two more documents were added to the bundle by consent. The claimant provided a copy of her appeal letter and the respondent provided a copy of the notes of the disciplinary hearing.

5. On the first day of the hearing we started late as the respondent’s counsel had attended the wrong venue. When the hearing started we had a short introduction and I explained the procedure. It became clear that there were no paper copies of the bundle available and the claimant had not been able to download the electronic copy of the bundle. The tribunal administration gave the claimant a

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printed copy of the bundle. We took the afternoon for reading time for me and additional preparation time. I explained to the claimant that she should make a list of questions to ask the respondent’s witnesses, based on their statements.

6. I started hearing evidence on the second day of the hearing. As the claimant was representing herself, I heard her evidence first, so that she had the opportunity to be questioned by the respondent’s counsel before having to question the respondent’s witnesses herself. I then heard the evidence of [RESPONDENT] and [RESPONDENT] on behalf of the respondent. All the witnesses had prepared witness statements.

7. The respondent had also exchanged a statement for [RESPONDENT] [NAME] but he was unable to attend the hearing. I did not rely on his statement. In relation to matters which Mr [NAME] dealt with in his witness statement, I made my decision on the basis of the contemporaneous documents.

8. I gave my judgment and reasons on the third day of the hearing, explaining my findings of fact and conclusions. The written judgment was sent to the parties on 10 March 2026. The respondent requested written reasons on the same day and the request was sent to me on 19 March 2026. In these written reasons I have added a separate section with the legal principles which I summarised as part of the conclusions in my oral reasons. Findings of facts 9. There were relatively few disputes between the parties about what happened but I found it helpful to set out an outline of the chronology. Where there is a dispute about the facts, I decide what I think is most likely to have happened by reference to the documents I have seen, and the evidence I have heard from the parties.

10. The claimant worked as a care professional for [NAME] from 1 May 2016. She worked on a zero hours contract. Shortly before the time of the issues in this case, the respondent invited staff to transfer to guaranteed hours contracts. I accept the respondent’s evidence that employees were not required to change to guaranteed hours. They could stay on zero hours contracts if they preferred. The claimant chose not to change to guaranteed hours.

11. In January 2024 the claimant was on a period of sick leave. The respondent removed her access to the [NAME] which it used for staff communications. I find that this was a standard procedure for staff who were on sick leave. The reason for it was to ensure that access to sensitive client information was restricted to those who needed it. I accept the respondent’s witness evidence about this because it is consistent with the contemporaneous documents. The claimant’s access to the non-client parts of the platform was restored about two weeks later, following a request by her.

12. On 15 or 16 April 2024, while the claimant was on sick leave, the respondent received a call from a family member of a [NAME] who is referred to as [NAME]. That call gave the respondent cause for concern because it suggested that the claimant had been providing care for client [APPELLANT] on a private basis for some time and that she was doing so while being on sick leave.

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13. The respondent invited the claimant to an investigation meeting which took place on 17 April 2024. The investigating manager was [APPELLANT].

14. The claimant accepted that she was seeing client [APPELLANT] daily and had done for three years. This included seeing her in the evenings and taking her dinner every night. She said she did this as a friend and that client [NAME] was like a second mum to her. She denied receiving any pay for doing this and said she was only paid for things that she bought for client [NAME], for which she was reimbursed.

15. After the investigation meeting, client [RESPONDENT] family gave the respondent some more information including that the claimant had been named as an executor and a beneficiary in client [RESPONDENT] will. They also sent the respondent some WhatsApp messages that they had received from the claimant about client [APPELLANT] in which the claimant appeared to say that client [APPELLANT] could get care services more cheaply from [COMPANY].

16. The respondent decided that there should be a disciplinary hearing and sent a letter on 30 April 2024 to the claimant setting out three allegations against her. Those were: 16.1 that she had provided private paid care work to client [NAME]. 16.2 that she had been named in client [NAME] will, and 16.3 that she had informed client [RESPONDENT] family that the respondent’s services were too expensive and [COMPANY] could provide them more cheaply.

17. The disciplinary invitation letter attached copies of the evidence that the respondents had received from client [NAME] family, including the WhatsApp messages, the will, the minutes of the investigation meeting, and copies of relevant policies.

18. There were some delays in the disciplinary hearing taking place because of issues on both sides. It went ahead on 19 July 2024. It was conducted by Ms [APPELLANT].

19. One of the claimant’s children attended the hearing with her because she was off school sick that day. The claimant did not ask for the hearing to be rescheduled as it had already been delayed several times. The respondent allowed the claimant’s child to be present in the hearing.

20. There were discussions at the hearing about the respondent’s policies. The claimant accepted that she had been given copies of them at the start of her employment. The policies said that: 20.1 employees could not provide private care services for a client, or [NAME]; 20.2 they could not accept gifts from a client or be involved in any legal or financial processes for clients, including wills; 20.3 they should not enter into personal relationships with clients or ex-

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clients, and that if they did, they should discuss it with a registered manager.

21. At the disciplinary hearing the claimant explained what expenses she had been reimbursed for by client [NAME]. There was a dispute between the parties about whether the claimant provided the respondent with copies of receipts for these expenses. I find, based on the contemporaneous documents, that the claimant explained what she had bought, but did not actually provide copies. I make this finding because there is no mention of receipts in the otherwise detailed note of the hearing.

22. At the end of the disciplinary hearing, Ms [APPELLANT] told the claimant that she would consider what the claimant had said and write to her with the outcome.

23. Ms [APPELLANT] wrote to the claimant on 24 July. She said that she had found the three allegations proved and she found that they amounted to gross misconduct. She decided that the claimant should be summarily dismissed.

24. The claimant appealed against the dismissal. [APPELLANT] considered the appeal at a hearing on 16 October. At that appeal hearing the claimant was given a further opportunity to provide receipts but did not do so.

25. Mr [APPELLANT] wrote to the claimant on 23 October 2024 with the outcome of the appeal. He upheld the decision to dismiss.

26. I make these findings about the appeal based on the contemporaneous documents rather than on Mr [NAME] written statement as he did not attend this hearing to give evidence. The law 27. Section 98 of the Employment Rights Act 1996 says: “(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— … (b) relates to the conduct of the employee…

(4) 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

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(b) shall be determined in accordance with equity and the substantial merits of the case.” 28. It is for the employer to show the reason for dismissal. If the employer shows a potentially fair reason for dismissal, a neutral burden applies when considering the fairness of the dismissal in the circumstances.

29. In a complaint of unfair dismissal where the reason for the dismissal is conduct, the role of the tribunal is not to examine whether the employee is guilty of the misconduct. The employer must show that, at the time of the dismissal, it had a genuine belief that the employee had committed misconduct ([NAME] v Burchell [1980] ICR 303).

30. If the respondent establishes that genuine belief, the tribunal goes on to consider, applying a neutral burden, whether: 30.1 There were reasonable grounds for believing that the employee committed misconduct; and 30.2 at the time that the employer formed that belief on those grounds, it had carried out an investigation which was reasonable in the circumstances; 30.3 the procedure adopted by the employer was procedurally fair and within the range of reasonable responses; 30.4 dismissal was within the range of reasonable responses.

31. The tribunal must not substitute its own view of the appropriate penalty for that of the employer. Conclusions 32. I next explain the conclusions I reached having applied the legal tests to the facts as I have found them.

33. The legal test for unfair dismissal is set out in the Employment Rights Act 1996 in section 98. There are broadly two parts to the test. 21 First, the reason for dismissal must be one of the reasons known as potentially fair reasons. They are listed in section 98(2). They are the only reasons for which an employer can fairly dismiss someone once the employee has the right not to be unfairly dismissed, when they have worked, as the claimant had, for an employer for two years. 22 Here, the respondent relied on conduct as the reason for dismissal. A reason relating to the employee’s conduct is a potentially fair reason included in the list in section 98(2). 23 In a conduct case, I have to decide whether the respondent, and specifically Ms [RESPONDENT] who made the decision to dismiss, had a genuine belief that the claimant had committed misconduct.

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24 The claimant challenged the genuineness of conduct as the reason for her dismissal in two ways. 25 First, she said there might have been a hidden reason for the respondent to want to push her out, namely that she had not changed from a zero hours contract to a guaranteed hours contract. I have accepted the respondent’s evidence that employees were not required to change to guaranteed hours and could stay on zero hours contracts if they preferred. In those circumstances, the claimant’s decision to remain on a zero hours contract would not have been a reason to want to push her out. The claimant’s choice was not a problem for the respondent. I have accepted Ms [RESPONDENT] evidence that her decision to dismiss was not related to the contractual changes at all. 26 Secondly, the claimant said that Ms [APPELLANT] had made the decision to dismiss her some months prior to the meeting. She said that her removal from the [NAME] in January 2024 was evidence that the respondent wanted her out at that time, and that it then landed on the complaints by client [NAME] family as an excuse to dismiss her. I have accepted the respondent’s witness evidence that the removal from [NAME] was because of the absence on sick leave and was not evidence of any wish to push the claimant out. That is supported by the fact that, when the claimant raised her concerns about [APPELLANT] access, non-client access was restored to her. I accept that the respondent was not looking for excuses to push the claimant out. There was no other evidence to support the suggestion that the decision to dismiss was made ahead of the meeting. Ms [APPELLANT] had not met the claimant prior to stepping in as disciplinary manager. She took time after the hearing to consider her decision. She made the decision herself and was not told by anybody else what to do.

34. Having considered those points, I have come to the conclusion that the reason for dismissal was the respondent’s genuine belief that the claimant had committed misconduct. Specifically, the respondent believed the claimant had committed misconduct in the three ways set out in the disciplinary and dismissal letters. That means the first part of the test is satisfied. There was a potentially fair reason for the dismissal.

35. I go on to the second part of the unfair dismissal test. The dismissal must be fair in all the circumstances as set out in section 98(4) of the Employment Rights Act. I have to consider whether the respondent acted reasonably in these circumstances in treating the conduct as a sufficient reason to dismiss. I consider that on a neutral basis. That means neither party has the burden of proving it.

36. As I explained during the hearing, my role is not to make my own decision about whether the claimant should have been dismissed. I do not decide whether I would have dismissed in these circumstances or whether the decision was the right decision to make. My role is more limited than that. The law recognises that different employers might do different things in the same circumstances, and that there might be more than one reasonable way of dealing with the same situation. I have to assess whether this decision by this respondent was unfair because it was a decision which no reasonable employer could have made in these circumstances.

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37. I have looked at four factors in particular: 37.1 First, having concluded that the respondent had a genuine belief in misconduct, one of the potentially fair reasons, I consider whether there were reasonable grounds for that belief - was there evidence on which to base the belief? 37.2 Secondly, was the belief based on a reasonable investigation - had the respondent carried out a reasonable investigation before arriving at that belief? 37.3 Thirdly, was a fair procedure adopted overall? That looks at the steps the respondent took when considering the allegations and reaching the decision to dismiss. 37.4 Finally, an overarching question - was dismissal outside the range of reasonable responses available to a reasonable employer in these circumstances? 38. I explain my conclusion on each of those four points.

39. First, were there reasonable grounds for the respondent’s belief that the claimant committed misconduct? There were three alleged instances of misconduct. I have looked at them in turn. 39.1 It was alleged that the claimant had been providing private care to client [APPELLANT]. The WhatsApp messages sent to the respondent by client [RESPONDENT] family were reasonable grounds for that belief. In the messages there were a number of things said from which the respondent was entitled to conclude that the claimant had provided private care to client [APPELLANT]. For example, the messages said the claimant was doing the majority of the work; was setting everything up for the other carers; had been looking after client [NAME] for four years; that arrangements were in place between the claimant and client [APPELLANT], and that client [APPELLANT] was not allowing the claimant ‘to do her job of looking after her’. The claimant did not suggest that these WhatsApp messages had been made up and, read as a whole, they were a basis on which the respondent could form a belief that the claimant had been providing private care services to client [NAME] and that the money she received from client [NAME] was pay for those services. I am not deciding whether the claimant did provide private care services or receive pay for them. That is not a decision that I make in the context of this complaint. I decide whether there were reasonable grounds for the respondent’s belief. I have decided that there were. 39.2 The second of the alleged instances of misconduct was about the inclusion of the claimant in client [APPELLANT] will. The claimant accepted at the disciplinary hearing that she knew she was to be named as an executor in client [RESPONDENT] will. That was a reasonable basis on which the respondent could form a belief that the claimant had breached the respondent’s gifts and boundaries policy. 39.3 The third allegation of misconduct was that the claimant had informed

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client [RESPONDENT] family that the respondent’s services were too expensive and suggested an alternative provider. There was a reasonable basis for this belief because of what the claimant said in the WhatsApp messages, copies of which were sent by client [RESPONDENT] family to the respondent.

40. I have concluded on that first point that there were reasonable grounds for the respondent’s belief in respect of each of the three allegations of misconduct.

41. Next, I look at the question of whether, at the time it formed the belief, the respondent had carried out a reasonable investigation. I have concluded that it had. The respondent spoke to client [RESPONDENT] family, considered the documents sent, considered the policies, and held an investigation hearing with the claimant. They decided not to interview client [APPELLANT] herself. The claimant said that was a failing in the investigation. Some employers might have interviewed client [NAME] but I have decided that it was not unreasonable to decide not to, taking into account the particular vulnerability of client [RESPONDENT] and the fact that the respondent had already received detailed information from her family. The decision not to interview client [NAME] did not make this investigation process an unreasonable one.

42. The next point for me to look at is whether a fair procedure was adopted overall. The respondent followed the Acas Code of Practice. There was an investigation, a disciplinary process and an appeal hearing. Different managers were involved at each stage. The claimant was made aware of the allegations and the possible outcome. She was given the opportunity to respond to the allegations. She was told that she could be accompanied. The claimant raised a concern about her child being allowed to be present at the disciplinary hearing. I have concluded that that did not make the procedure unfair overall. It was at the claimant’s request that her child attended and the claimant did not ask for the hearing to be rescheduled. It is clear from the note of that hearing that the claimant was able to respond to the questions she was asked, to give her explanations and to say what she wanted to say. For those reasons, the presence of the claimant’s child at the disciplinary hearing did not make the overall procedure unfair.

43. That leaves the overarching question of whether the dismissal was in the range of reasonable responses. As I have explained, I am not looking at whether this was the right decision, only whether it was outside the range of reasonable decisions.

44. I first looked at whether the claimant could have been reasonably expected to have understood that her conduct would have been regarded as misconduct. I have decided that she could for the following reasons, in relation to each of the different allegations of misconduct: 44.1 First, undertaking private work for clients and being in direct competition with the company were included in the disciplinary policy as examples of acts which the employer regarded as gross misconduct. 44.2 Secondly, being included as an executor in the will of a [NAME] is an act which an employee should have appreciated would have been regarded as serious misconduct, having regard to the work setting, the vulnerability of the respondent’s clients, and the clear wording of the gift

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and boundaries policies. Even if client [APPELLANT] was no longer a client of the respondent, the claimant could have understood that the restriction on involvement in legal processes would include [NAME] clients as well as current clients, because the policy made this explicit. An employee could reasonably have been expected to know from the policies that being included as an executor in the will of a [NAME] would be regarded as serious misconduct. 44.3 Thirdly, telling a [NAME] who is looking to arrange care provision that the respondent’s services were too expensive and could be obtained more cheaply elsewhere, is an act which the claimant should have appreciated would have been regarded as serious misconduct. It would have fallen within the category of being in competition with the respondent and causing loss or damage to the business which were referred to in the disciplinary policy.

45. Having decided that the claimant’s conduct amounted to misconduct, Ms [APPELLANT] considered whether another outcome was possible but formed the view that in the care context, the claimant’s conduct was such that dismissal was the only appropriate response. It was open to her to reach that conclusion.

46. I have also taken into account the claimant’s challenges to the fairness of the dismissal as she explained them in her appeal letter and at the hearing. Those that I have not already mentioned are the explanations she provided in response to the allegations. She said that payment was for petrol and living expenses; that she had no knowledge of being a beneficiary in the will and that she only referred client [RESPONDENT] to another care company because the respondent did not make 30 minute visits. Ms [RESPONDENT] took these points into account when making her decision to dismiss and explained why she did not accept them: 46.1 In relation to the payments, Ms [NAME] decided, based on the WhatsApp messages and on what the claimant said in the hearing, that the sums of money paid were likely to have been wages, not just payments for petrol and reimbursement of expenses. Ms [NAME] took into account that Mr [APPELLANT] knew that the claimant had worked as a cleaner for client [APPELLANT] but decided that it was likely that the claimant was paid for providing care services as well. 46.2 Ms [APPELLANT] took into account that the claimant said she was not aware that she was a beneficiary in the will. However, she decided that the claimant’s knowledge that she was included as an executor amounted to a breach of the respondent’s policies. 46.3 Thirdly, Ms [APPELLANT] decided that the claimant’s explanation that she only suggested another care company because the respondent did not offer 30 minute visits was at odds with the messages themselves, which showed that the claimant knew that client [APPELLANT] needed one hour visits every day at bedtime and twice on Sundays.

47. Finally, I have considered the claimant’s point that her relationship with client [APPELLANT] had already been investigated by the respondent in 2022 and the outcome was

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that the respondent concluded there was no problem. The respondent made that decision on the information available to it in 2022. It found at that time that the relationship did not amount to a breach of its policies. It was not outside the range of reasonable responses for the respondent to look at this again later, in light of the new complaint and the new information it received from client [NAME] family. Ms [NAME] did not ignore this factor. She was aware there had been a previous investigation, and she asked the claimant about it in the disciplinary hearing. She saw the new allegations as a separate matter. That was a conclusion that was open to her to reach.

48. Having considered all these factors and bearing in mind the particular context of care work and the employer’s safeguarding responsibilities in that context, I have concluded that dismissal in these circumstances was within the range of reasonable responses of a reasonable employer.

49. As I have explained, it is not my role to decide whether the claimant was being paid for the support she provided to client [NAME], or to decide what I would have done in these circumstances. I have to consider whether the respondent genuinely believed there was misconduct; whether it had reasonable grounds for that belief; whether it investigated properly and conducted the process fairly. I have decided that it did meet those tests and that overall, dismissal was within the range of reasonable responses.

50.

For these reasons, the complaint of unfair dismissal fails and is dismissed.

Approved by: Employment Judge Hawksworth

Date: 24 April 2026

JUDGMENT SENT TO THE PARTIES ON 28 April 2026

FOR THE TRIBUNAL OFFICE

Case Number: 3311629/2024

PHCM Order 1 of 2 September 2023

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Reading

On: 12, 13, 14 January 2026

Before: Employment Judge Hawksworth

Appearances: The claimant: [redacted] represented herself For the respondent: [redacted]

JUDGMENT

The complaint of unfair dismissal is not well-founded and is dismissed.

Approved by:

Employment Judge Hawksworth

Date: 14 January 2026

Sent to the parties on

10 March 2026

For the Tribunals Office

Note: 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.

Public access to employment tribunal decisions: All judgments and written reasons for the judgments are published in full online, shortly after a copy has been sent to the claimant(s) and respondent(s) in the case, at www.gov.uk/employment-tribunal-decisions

Recording and Transcription:

Case Number: 3311629/2024

PHCM Order 2 of 2 September 2023

Please note that if a Tribunal Hearing has been recorded you may request a transcript of the recording, for which a charge is likely to be payable in most but not all circumstances. 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:

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