Employee awarded almost £12,000 compensation for unfair dismissal (Tracie Shearwood v Lean Education and Development )

In the case of Tracie Shearwood v Lean Education and Development, a female employee was dismissed for gross misconduct by her employer. She was awarded just under £12,000 in compensation for being unfairly dismissed.

The Facts in Tracie Shearwood v Lean Education and Development

Tracie Shearwood (the “Claimant”) commenced working with Lean Education and Development (the “Respondent”) as a trainee assessor on 7 September 2011. She had previously worked in manufacturing where she was not required to use computer equipment but had taught herself the basics of using word processing once she started work for the Respondent.

The Respondent provided apprenticeships to a number of colleges including Eastleigh College and Basingstoke College of Technology. Their own apprenticeship system drew on government funds through the apprenticeship levy grants system provided directly to employers. To meet the terms of receiving grant money, the Respondent had to meet certain compliance and regulation requirements. They were audited by the Education and Skills Funding Authority (EFSA). A failure to meet record-keeping requirements could in theory enable the EFSA to recoup funding where the delivery of training in accordance with the levy contract was unsatisfactory.  The value of the Respondent’s contract to provide apprenticeships in the first year amounted to £750,000.

The Claimant argued that during the course of her employment that she:

• had been removed from a senior compliance role and replaced in another more junior administrative role unfairly with no meaningful prior discussion or consultation
• had not been given a probation period, relevant training or support from her management after being moved into a new job role
• had felt annoyed and upset by the treatment she received from her management
• had not been provided with reliable equipment and materials to perform her job and unfairly and unreasonably criticised for mistakes

On 11 January 2013 the Claimant was promoted to the role of Screening and Enrolment Officer. In this role, she met with learners to carry out the necessary checks and complete paperwork to enrol them on apprenticeship programmes. Subsequently, the claimant was promoted again to the role of Operations Enrolment Officer on 7 September 2015.

The Claimant was promoted again on 9 October 2017, to the role of Head of Compliance on an interim basis with an increase in salary and provision of a car allowance which amounted in total to £39,000. This promotion was confirmed on a permanent basis by the Managing Director, Maxine Jones, her line manager in an email to the Claimant dated 1 November 2017.

On or around 8 April 2018, Ms Jones informed the Claimant by email she was being moved out of her compliance role into a more administrative role, without proper consultation. The Claimant was moved to another role in printing and resourcing, once again without consultation, which she found stressful and upsetting.

The Claimant expressed her concerns on 2 July 2018 over her training needs to perform her current role in a meeting with Laura Weston, Head of IQA/Regional Team Leader at Lean Education and Development. Laura Weston agreed to review a training plan for the Claimant on or before 13 July 2018.  This was never actioned.

On 19 July 2018, the Respondent conducted a mock audit at Eastleigh College in preparation for an EFSA audit. This did not go well in terms of outcome and the Respondents feared this would be replicated in an EFSA audit, leading to a loss of funding for the company which created a sense of panic in the organisation.

Laura Weston spoke to the Claimant on 2 August 2018 about serious errors made in printing declarations she placed on the file with another learner’s information on the rear side of the page.  Concerns were raised this was a breach of the GDPR and that she would be reviewing the Claimant’s job description and training plan with her when an audit being undertaken was concluded.

On 13 August 2018, the Claimant was invited to a disciplinary meeting to face charges, including breach of GDPR and various performance matters relating to printing/copying errors. The Claimant then raised a grievance on 9 August 2018, setting out various complaints regarding unfair treatment. Her key complaints were around the way she was removed from her compliance role without consultation, lack of training for the change in role, being blamed unfairly for work errors and insensitive behaviour towards her and lack of support.  On receipt of the grievance, Laura Weston decided to cancel the disciplinary meeting for the grievance to be duly investigated.

Graham Drew, the external HR consultant, was appointed to carry out the investigation on 15 September 2018. He upheld a number of the Claimant’s complaints, in particular her removal as Head of Compliance, described as being a “shocking way to inform re loss of job role”.  He also found that the Claimant had been upset on a number of occasions in the office due to changes in her job role, and that management had not done enough to resolve the issue and should investigate this further.  Graham Drew did not uphold a number of the complaints against senior staff members, in the grievance. He warned of the risk of a libel claim over suggestions by the Claimant, alleging potential fraud in relation to levy claims or safeguarding issues involving young learners.

On 17 September 2018, Maxine Jones sent an email to the Claimant which stated that the company would be taking action on all the recommendations. No action was taken to implement this action.

The Claimant attended the disciplinary hearing on 27 September 2018. In this, various charges were put, including the GDPR issue, printing/photocopying errors, and incorrect information in Independent Learner Packs (ILPs). At the end of the meeting, the issue of comments she had made regarding senior members of staff in the Claimant’s grievance was raised as a matter of a breach of trust and confidence.

On 28 September 2018, the Claimant received a letter of dismissal for gross misconduct. The decision to dismiss the Claimant for gross misconduct was based on the comments she had made against senior managers which were considered a breach of trust and confidence. The Claimant appealed but this was not upheld.

The Decision of the Employment Tribunal

The Claimant was awarded in total compensation of £11,885.62 for unfair dismissal.  This was made up of the following components:

• Basic Award for unfair dismissal – £5,334
• Compensation for loss of statutory rights – £500
• Net loss of earnings from dismissal to new employment with Provident – £1,724.52
• Net partial loss of earnings during employment with her new employer Provident – £1,839.72
• Partial loss of earnings – £2,487.38

The tribunal considered the Respondent’s actions and came to the conclusion that dismissing the Claimant for gross misconduct was not a reasonable response. A reasonable employer would have investigated properly the complaints made in the Claimant’s grievance especially those upheld relating to the way she had been treated by her employer. A reasonable employer, the tribunal felt, would have acted on the recommendations in the grievance. In relation to any performance or capability issues, they should have addressed these by meeting her training needs and other work-related concerns.  The move to gross misconduct was a totally disproportionate response to her circumstances.

Our lawyers view

Steve Norton, a lawyer at Redmans says – “In this case, the employer appears to have shown no duty of care towards a hardworking and diligent employee doing her best to adjust to each job role she was moved into with little discussion or support. Rather than address her legitimate concerns for adequate training and support, the employer moved to dismiss her without notice via a flawed investigation and disciplinary process which resulted in an unfair dismissal.”

The decision of the Employment Tribunal can be found here