Bluebird Care Employee Unfairly Dismissed For Sending Joke Email But ET Reduces Compensation Because “She Went Too Far”

In Mrs A Robinson v The Little Wren Ltd t/a Bluebird Care, an employment tribunal held Mrs Robinson’s dismissal was unfair. This occurred after the carer circulated a ‘jokey’ email about her colleague’s top bursting open during a client home visit. 

Despite this, her compensation was reduced by 20% due to blameworthy conduct. Below, we examine what happened and why the employment tribunal made the decision they did.

If you think you have been unfairly dismissed and want to make a claim, contact Redmans Solicitors today. We are employment law specialists and could assess your case before uncovering your eligibility to claim unfair dismissal compensation. To get in touch with us now:

The Facts in Mrs A Robinson v The Little Wren Ltd t/a Bluebird Care

‘Personal boundaries and indecent exposure!’

Mrs A Robinson (“The Claimant”) was a carer for Bluebird Care (“The Respondent”) until her dismissal on 30 August 2023. Problems arose earlier that month when she undertook a client visit with her supervisor, Susanne Whittaker, on 6 August.

During the visit, Ms Whittaker’s top unexpectedly burst open. She immediately covered herself, and the visit proceeded as usual before they laughed about it outside. They then discussed the claimant writing a funny email concerning the incident and ‘breaking professional boundaries’ to the girls in the office at Bluebird Care.

Despite agreeing this would be funny, the claimant didn’t notify Ms Whittaker about the email’s content before sending it. In her email entitled ‘Personal boundaries and indecent exposure!’, the carer claimed Ms Whittaker had exposed herself whilst on a webcam when visiting a client. She fabricated that the incident had been reported to the police, even providing a fake crime reference number.

Disciplinary Proceedings Brought Against the Claimant

On 7 August, Bluebird care manager Alyson Hartlebury called Ms Whittaker about the incident. Ms Whittaker was very upset about the email and what her colleague’s perception would be, stating she couldn’t attend work.

As such, a fact-finding meeting was arranged. On 14 August, the respondent received Ms Whittaker’s statement, explaining she never expected an email to be sent. She stated she was “mortified” by the email, finding it “offensive and degrading” and “not in the least bit amusing”. 

At the same time, the Lancashire Safeguarding Adults Team contacted the respondent. This concerned claims about unsafe care from one of the respondent’s live-in carers. The respondent had suspicions that the claimant had reported this.

Then, on 18 August, the carer attended the fact-finding meeting, which she covertly recorded. Three days later, the claimant was invited to a disciplinary hearing arranged for 31 August. Contained within the invitation was information about the allegations, including that the claimant had:

  • Misappropriated the company’s email, causing reputational damage
  • Made false allegations about a colleague, causing them offence and significant distress

On 22 August, CQC made an information request to the respondent concerning 21 charges. Like the contact from the Lancashire Safeguarding Adults Team, the respondent felt this resulted from the claimant’s actions.

Over the coming days, one of the directors of Bluebird Care, Mrs Evans, corresponded various times with the claimant. This included the claimant informing the respondent she was running late one day and calling them on another to explain she was too unwell to work. 

Claimant Calls Bluebird Care Director a Bully

On 28 August, the carer submitted a backdated sick note stating, “‘Management stress and bullying by Claire Evans” as reasons. Around the same time, the respondent also received the claimant’s annual staff survey. She chose not to remain anonymous and answered every question: “Claire Evans is a bully”.

As such, Mrs Evans and her husband (the company’s other director) decided to proceed with the disciplinary meeting on 29 August without the claimant. At such time, it was agreed the claimant’s actions amounted to gross misconduct, meaning they would immediately dismiss her. 

In confidence, Mrs Evans then informed Ms Whittaker about their decision. However, this got back to the claimant, as a colleague told her, “Word on the grapevine is you’re getting sacked”.

Subsequently, Bluebird Care wrote to the claimant, informing her of her summary dismissal on 30 August. The letter reasoned her continued employment with the respondent was untenable, claiming she was “on a campaign to cause mischief”. This was about the Lancashire Safeguarding Adults Team and CQC communication. The respondent also outlined the claimant’s right to appeal the decision, but the carer decided against this.

The Employment Tribunal’s Judgment

The employment tribunal began by establishing that they didn’t have to determine whether the claimant was guilty of the offences outlined by the respondent. They then explained how Bluebird Care dismissed her for misconduct, which could be a potentially fair reason. They added that whilst the investigation into the email was reasonable, the same couldn’t be said for the claimant’s ‘mischievous conduct’.

No evidence was found to prove the claimant had contacted the Lancashire Safeguarding Adults Team or CQC. Furthermore, this allegation wasn’t addressed to the claimant as part of the disciplinary meeting invitation. The tribunal deemed a thorough investigation here was essential, ruling this conduct was a significant factor in the reason for dismissal.

They explained that whilst the respondent may have held a genuine belief about the mischievous conduct, it wasn’t reasonable because they didn’t have the evidence to prove it was her. They also held it unreasonable to hold the disciplinary meeting in her absence. 

Therefore, the employment tribunal concluded that the decision to dismiss was outside the range of reasonable responses. As such, they held the claimant had been unfairly dismissed due to the unfair process.

Despite this, they reduced the claimant’s compensation after applying the principles in Polkey. Here, they had to determine whether she would have been fairly dismissed had a fair process been followed.

Following deliberations, they believed there was a 40% chance the carer would have been fairly dismissed had the correct process been applied. As such, they reduced her compensatory award by 20%. They also reduced her basic award by 20% due to her conduct. The tribunal reasoned her culpable, blameworthy and unreasonable behaviour significantly contributed to her dismissal.

Claim Unfair Dismissal Compensation with Redmans

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