The claimant was employed by the respondent from 20th December 2013. The claimant was regularly promoted and during her time with the respondent she was department manager and assistant manager before becoming store manager on 1st July 2019.  The particular aspect of the Contract of Employment which became relevant in this case was:

‘You are required to work your working hours each week (excluding meal breaks) and to make yourself available work the Working Days…The times you are required to work your Working Hours will vary each week.  You will be required to work such times as notified to you in advance by your line manager.’

In practice, the claimant was responsible for the rotas in her store and her line manager did not have to determine what hours the claimant worked.

The staff were required to register in and out of the building through a process of swiping in and out.  However, it was not a requirement to swipe in to gain access to the building.   This was largely used for the purposes of those staff who were paid hourly.  The claimant, as store manager, was a salaried employee.   On 4th August, the department manager ‘TT’ was asked to come into work, but the claimant asked her not to swipe in or out.   TT emailed Ms Skinner (the claimant’s line manager) seeking clarification.    An email was sent round stating that all store managers had to clock in and out of every shift.

Following the email complaints were made about the claimant that she changed rotas to suit herself and that she worked different hours than the rota outlined.   This also included complaints that the claimant worked on days off and took different days in lieu, she left before her shift was supposed to end and took longer breaks.   An investigation meeting was held unannounced with the claimant and contrary to the respondent’s handbook the claimant was not shown all of the evidence against her.   She was also told that the accusation was poor time management and potential breaches of policies, yet no policies were actually outlined to the claimant.   She was subsequently suspended, and a disciplinary meeting was scheduled for 26th August.

The disciplinary meeting went ahead.  At the beginning it was outlined that it was due to breaches of policies and no mention of poor timekeeping was made.    Following the meeting, Ms Skinner stated that due to the claimant being in a senior leadership position it was felt that trust and confidence had been damaged as her integrity had been called into question.   The dismissal letter then stated that the reason was for ‘repeated breaches of timekeeping policy’.

The Tribunal found that when it came to the procedure, Ms Skinner had a closed mind.   They had essentially taken the complaints as being true with no investigation into any points put forward by the claimant.    The claimant had raised issues about taking days in lieu and that she did not swipe in and out due to being salaried.  There was never any follow up as part of the investigation into these matters.   The changing reasons for the investigation, disciplinary meeting and dismissal were also noted by the Tribunal with it being regarded as a failure to put the real reason for the dismissal.   The real reason given in evidence was the assertion that the claimant was not working her full hours and getting paid.  That reason was never put to the claimant.   Accordingly, the unfair dismissal claim was well founded.  However, as a result of the Claimant's failure to follow company procedures regarding clocking in and out a 20% reduction was made to the award.

Practical Lessons 

This case, once again, demonstrates the importance of having a proper procedure in place when it comes to investigations, disciplinary meetings and dismissals.  It is important to make clear what the reason is throughout the procedure and not adopt different views or hidden views.  The real reason, given in evidence, was never put to the claimant.  That will lead to a procedurally unfair dismissal and a finding against the respondent.  Too many times the focus is on the substance as to the various concerns that may have been raised.  However, this needs to feed into the procedure that will be adopted to ensure the claimant is treated fairly throughout the dismissal procedure.
https://www.gov.uk/employment-tribunal-decisions/ms-r-macleod-v-h-and-m-hennes-and-mauritz-uk-ltd-4108028-slash-2020