Glasgow club employee dismissed after not returning to work from furlough loses unfair dismissal claim

About this case:

• Citation:
  4104925/2022
• Judgment:
  External link
• Court:
  Employment Tribunal (Scotland)
• Judge:
  Employment Judge R King

Claimant Melissa Carrington was employed at the Corinthian Club on Ingram Street, Glasgow, between 16 November 2018 and 16 June 2022, and argued that it was harsh and unempathetic to be dismissed in the manner she was. The owners of the Corinthian, Scotsman Group Plc, argued that she had been dismissed fairly for gross misconduct and was not owed any wages.

The case was heard by Employment Judge Robert King. The claimant appeared in person, with the respondent represented by S Harkins, employment consultant.

Unwilling to return

Prior to the Covid lockdown, the claimant had worked within the Corinthian’s pastry kitchen from Friday to Sunday over 24 hours. Following lockdown, the respondent advised staff that it would re-open the club on 3 June 2021 and organised refresher training for the end of April 2021, which the claimant attended.

On 6 May 2021 the claimant sent an email to the Corinthian’s general manager, Mr Cosgrove, stating that she would now only be available from Monday to Wednesday due to increased caring responsibilities. She met with Mr Cosgrove over Zoom on 10 May, at which time he advised her that the club would only be opening from Thursday to Sunday at first and thus she would be kept on furlough for the time being.

The claimant was telephoned by the head chef of the Corinthian on 9 October 2021, after the end of the furlough scheme, to discuss her return to work. However, she was unwilling to return on the terms he offered, under which she would be working in a different kitchen and on days different to those discussed with Mr Cosgrove, although the proposal was permissible under her employment contract.

Following a lengthy series of correspondence, during which the respondent attempted to find an alternative opportunity for the claimant in another of its Glasgow venues, the claimant was invited to a disciplinary hearing over Zoom after failing to attend three meetings with Mr Cosgrove without reasonable explanation. At the hearing, she read a short statement and then disconnected, following which the decision to dismiss was made in her absence.

On behalf of the respondent it was submitted that the reason for which the claimant was dismissed was a potentially fair reason. She was well aware that a decision could be made in her absence and it was reasonable for them to assume that her demands about working Monday to Wednesday were a “red line” and not simply a preference.

Source of frustration

In his judgment, Employment Judge King observed: “It appeared to the Tribunal that the claimant’s failure to engage with the respondent’s reasonable attempts to find a suitable alternative working arrangement was wilful and clearly a source of great frustration for the respondent over a period of several months. She failed to provide a proper explanation for her unacceptably erratic contact and on those occasions when she did make contact, she failed to engage meaningfully with the respondent’s reasonable attempts to discuss her return.”

He continued: “That lack of engagement continued even after a Monday to Wednesday shift arrangement at the Social, which fitted in with her stated caring arrangements, was offered. In the circumstances the respondent was entitled to conclude that the claimant had no intention of returning to work other than to the Corinthian on days that were acceptable to her.”

On the respondent’s assessment of the claimant’s conduct, he said: “In all the circumstances, the respondent was entitled to consider the claimant’s lack of engagement about her return to work to be wilful and motivated by an insistence that she would not return other than to the pastry kitchen at the Corinthian between Monday and Wednesday. It was also entitled to treat her continued absence as unauthorised and therefore a serious disciplinary matter.”

He concluded: “This was a serious matter for the respondent, which was disruptive to its business, which was trying to recover after the Covid lockdown. The Tribunal therefore concludes that the claimant’s dismissal was within the band of reasonable responses available to the respondent and was not unfair.”

The Tribunal therefore concluded that the claim must fail. In respect of unpaid wages, it found that no wages were due as the claimant had no intention to return to work between the end of her furlough and her dismissal.