Miss M Carrington v Scotsman Group plc (Scotland : Breach of Contract)

Factual and Procedural Background

The Plaintiff was employed by the Defendant, a hospitality company operating multiple venues in Central Scotland, from 16 November 2018 until her dismissal on 16 June 2022. The Plaintiff worked as a pastry commis chef at a venue referred to as "the Corinthian." Following the Covid-19 pandemic, the Corinthian closed temporarily and the Plaintiff was placed on furlough. Upon the end of furlough in September 2021, the Defendant sought to reintegrate the Plaintiff into work with altered shift patterns and locations due to operational changes and venue closures on certain days.

The Plaintiff expressed a preference to work only Monday to Wednesday, 9am to 5pm, and exclusively in the pastry kitchen at the Corinthian, citing extensive caring responsibilities. The Defendant offered alternative shifts at different venues and days, which the Plaintiff declined or failed to engage with meaningfully. The Defendant repeatedly sought to arrange meetings to discuss return to work and alternatives, but the Plaintiff was slow to respond, missed meetings, or disconnected from a disciplinary hearing.

After a disciplinary hearing held in the Plaintiff’s absence on 6 June 2022, the Defendant dismissed the Plaintiff without notice for gross misconduct related to unauthorised absence and failure to engage with return-to-work arrangements. The Plaintiff appealed, but the appeal was rejected. The Plaintiff subsequently brought claims for unfair dismissal and unpaid wages for the period between the end of furlough and dismissal.

Legal Issues Presented

1. What was the reason for the Plaintiff’s dismissal?
2. Was the reason for dismissal a potentially fair reason under sections 98(1) and 98(2) of the Employment Rights Act 1996?
3. If the reason was conduct-related and potentially fair, was the dismissal substantively fair under section 98(4) of the Employment Rights Act 1996, considering:
1. Whether the Defendant had a genuine and reasonable belief in the Plaintiff’s misconduct based on a reasonable investigation;
2. Whether the dismissal decision fell within the range of reasonable responses available to a reasonable employer;
3. Whether any procedural unfairness occurred and if it affected the outcome (Polkey principle);
4. Whether either party failed to comply with the Acas Code of Practice and the effect on any compensatory award;
5. Whether the Plaintiff contributed to her dismissal and the appropriate adjustment to compensation;
6. Whether the Plaintiff’s conduct amounted to a repudiatory breach justifying summary dismissal;
7. What financial loss the Plaintiff suffered and whether mitigation steps were taken;
8. Whether the Defendant failed to pay wages properly payable to the Plaintiff.

Arguments of the Parties

Defendant's Arguments

• The dismissal was for a conduct-related reason, specifically unauthorised absence and failure to engage with return-to-work arrangements, constituting gross misconduct.
• The Defendant had a genuine belief based on reasonable grounds and a reasonable investigation, including multiple attempts to communicate and offer alternative shifts permissible under the Plaintiff’s contract.
• The disciplinary and appeal processes complied fully with the Acas Code of Practice, including proper notice, opportunity to be accompanied, and the right to appeal.
• The Plaintiff’s failure to attend disciplinary hearings and to engage meaningfully justified proceeding in her absence.
• The Plaintiff was not entitled to unpaid wages for the period after furlough because she was not ready, willing, or available to work, having rejected reasonable offers.
• The Plaintiff had not mitigated her loss by seeking alternative employment, choosing instead to remain a full-time carer and engage in unpaid activities.
• The Plaintiff’s contributory conduct justified a 75% reduction in any compensatory award.

Plaintiff's Arguments

• The Plaintiff contended she was waiting for the Defendant to instruct her to return to work and would have accepted such instructions even if not her preferred shifts, thus she was not absent without leave.
• She cited difficulties with caring responsibilities and her own health, arguing the dismissal was harsh and unreasonable, lacking prior warnings.
• The Plaintiff denied any misconduct or unacceptable behaviour and maintained her conduct was commendable.
• She asserted she remained open to fulfilling any hours offered and had not withdrawn her labour.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
British Home Stores v Burchell 1978 IRLR 379	Requirement for employer to have a genuine belief in misconduct based on reasonable investigation.	The Tribunal applied this test to assess whether the Defendant had reasonable grounds and a genuine belief in the Plaintiff’s misconduct.
Iceland Frozen Foods Limited v Jones 1983 ICR 17	Range of reasonable responses test for fairness of dismissal.	The Tribunal used this standard to determine whether the Defendant’s dismissal decision fell within a reasonable band of responses.
Polkey v AE Dayton Services Limited 1987 All ER 974	Consideration of whether dismissal would have occurred even if a fair procedure had been followed.	The Tribunal considered whether procedural defects, if any, affected the fairness of dismissal.
Miles v Wakefield Metropolitan District Council 1987 IRLR 193 (HL)	Principle that employees ready and willing to work are entitled to be paid.	The Tribunal applied this to assess the Plaintiff’s claim for unpaid wages, concluding she was not ready and willing to work.
Chubb Fire Security Limited v Harper 1983 WL 216016	Fairness of dismissal assessed based on facts known at the time of dismissal.	The Tribunal accepted the Defendant’s submission that the fairness assessment was limited to facts available at dismissal.

Court's Reasoning and Analysis

The Tribunal found that the Defendant had a potentially fair reason for dismissal related to the Plaintiff’s conduct, specifically unauthorised absence and failure to engage with return-to-work arrangements. The Defendant had carried out a reasonable and fair investigation, offering alternative shifts consistent with the Plaintiff’s contractual mobility clause and business needs.

The Plaintiff’s insistence on working only specific days and in a particular kitchen, despite the venue being closed on those days and alternative offers being made, was treated by the Defendant as a "red line" rather than a mere preference. The Plaintiff’s failure to engage meaningfully, respond promptly, or attend disciplinary meetings justified the Defendant’s conclusion that she was absent without authorisation.

The Tribunal accepted that the disciplinary and appeal processes complied with the Acas Code of Practice and that the Defendant acted reasonably in proceeding with the disciplinary hearing in the Plaintiff’s absence after she disconnected and failed to respond to contact attempts.

The Plaintiff’s claim for unpaid wages failed because she was not ready, willing, or available to work after furlough ended, having rejected reasonable offers. The Tribunal also found the Plaintiff had not mitigated her loss by seeking alternative employment.

Overall, the dismissal was within the range of reasonable responses available to the Defendant and was not unfair.

Holding and Implications

The Tribunal DISMISSED the Plaintiff’s claims for unfair dismissal and unpaid wages.

The direct effect of this decision is that the Plaintiff’s employment termination is upheld as fair and no wages are owed for the period after furlough. The Tribunal did not set new legal precedent but applied established principles relating to unfair dismissal, employee conduct, and wage claims.