An employee at an apprenticeship training firm who was accused of deliberately making mistakes, amounting to gross misconduct, as an attempt to put her employer in financial ruin was unfairly dismissed, a tribunal has ruled.
The Birmingham tribunal found that Lean Education and Development (LED) – which is now in administration – unfairly dismissed Tracie Shearwood for “poor performance” and “making mistakes deliberately” ahead of an official audit.
The tribunal found there was not a “grave dereliction of duty” by Shearwood to justify dismissal for gross misconduct, nor had she “deliberately failed” to do her work “to the best of her ability”. It found that Shearwood was a “diligent member of staff”.
The tribunal heard that Shearwood was employed in a “variety of roles” at LED, an owner-managed business providing apprenticeship training, from 7 September 2011 until her dismissal on 28 September 2018.
Shearwood was initially hired as a trainee assessor and, while having previous management experience, she told the tribunal she taught herself the basics of word processing and email. After being successful in that role, she was promoted to screening and enrolment officer on 11 January.
On 7 September 2015, she was promoted again to operations enrolment officer, and then on 9 October 2017 she took over the role of head of compliance on an interim basis, which saw her wage increase to £39,000 with a car allowance of £3,000. The tribunal heard that the office-based role was attractive to Shearwood who had been field based in her previous roles.
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On the same day, managing director Maxine Jones described the role as a “massive challenge” because the compliance department was “lacking process”. Jones hired her sister in law, Claire Derbyshire, to take on Shearwood’s previous role, and she spent a “significant amount of time” training Derbyshire up. After a few weeks, on 1 November, Shearwood was offered the role on a substantive basis.
The tribunal heard that, aside from one minor error, Shearwood was performing to the required standard and that Jones did not indicate otherwise. However, on 8 April 2018, Jones emailed Shearwood to say she would be “moving” her out of compliance – an action the tribunal described as a “body blow” to her – with an aim to recruit “very experienced people” to rebuild the company’s reputation.
The tribunal said the sudden removal of her from her new role made her “extremely upset” and damaged her confidence, but that she continued at LED with the new responsibility of checking the printing of numerous documents issued to clients and learners – but she saw this “very much” as a demotion.
On 23 April Shearwood was told of an Ofsted inspection and was advised by Jones to “stay away from the office” during the audit, as well as being told by director Gary Cooper to “take a back seat” and that they would remove an apprentice from the printing process, which would now fall to Shearwood.
This again saw her responsibilities changed to operation/centre support, which would involve digital printing, and the tribunal heard she “felt upset and demoralised”. Shearwood was also worried about “how she would cope” with the new duties as she was “not confident” of the tasks involved, but the tribunal said her financial commitments as a single mother meant she “had no choice but to do her best with what was required of her”.
Her new responsibilities commenced on 30 April and she was assigned a new operations manager, Brian Hanslow. She was also given a job description that said she was required to print all the documentation required by the business for the learners – enrolment documentation, portfolios, workbooks, learning materials and exam invigilation documents.
Hanslow was responsible for creating the ‘print masters’ documents, a system that both Jones and Cooper described as “chaotic”, which was causing pressure on the business to mount ahead of an ESFA audit of the company.
The apprentice was reassigned back to printing the documents after the inspection, and Shearwood was then responsible for checking the accuracy of the documents. The tribunal said this role was a “page turning exercise” that required “extensive attention to detail” as the print master process was not smooth and the office printer “often malfunctioned”.
The tribunal said Shearwood found this role, and her demotion, “extremely stressful” because of the “increasing pressure building in the business for everything to be 100 per cent correct” ahead of the audit. The tribunal also said the directors were in a “heightened state” of concern about whether the business could “withstand inspection” from the ESFA.
Shearwood had a meeting with the new head of compliance, Laura Weston – who was seconded in to help with the audit – on 2 July 2018, in which they agreed she would be properly trained.
On 19 July, LED did a trial audit, which the tribunal said “did not go well” as a number of errors were found and “pressure mounted” within the business. Cooper emailed the staff on 20 July, saying if they failed an audit and had to pay £750,000 they would have to “close down the business”. He also said there would be a zero-tolerance approach to compliance errors.
On 1 August, Weston was advised by a colleague that Shearwood had printed some documents double sided, which could be a breach of the GDPR. Shearwood told the tribunal she did not know how to print them single sided, and on 2 August Weston confronted her about “serious errors” in the printing.
Shearwood told the tribunal she “became upset” and said she was “not good at printing'' and felt she was “getting nothing right”. Weston reviewed Shearwood’s job description and the following day took her off compliance-related processes, and spoke to the HR consultant, Graham Drew, who advised Weston to suspend Shearwood and invite her to a disciplinary meeting.
In an undated email, Weston said Shearwood’s errors seemed to “fly in the face” of what Cooper had warned about with the audit. Shearwood filed a grievance on 9 August with a string of complaints and Weston then decided to revoke the disciplinary and suspension.
On 10 August, the tribunal heard Jones “became angry” with Shearwood and two colleagues from the compliance team as they were seen leaving the office at lunch time. Jones held a telephone conference with Shearwood and the two colleagues and “remonstrated” with them for going on a lunch break together despite being in the same department.
The tribunal heard that Jones said this was “not acceptable” ahead of the audit, and was reminded by Shearwood and her colleagues that there was no staggered lunch policy in place. Jones responded that if they were not fully committed to their job and getting the audit completed that they were “not suitable for the job and should seek alternative employment”. Weston then reinstated Shearwood’s suspension.
On 27 September a disciplinary hearing took place, which concluded that Shearwood’s actions – such as the GDPR breach and various filing mistakes, and a breakdown of trust after she filed a grievance – amounted to “gross misconduct”. She appealed the decision but was not successful.
Jones told the tribunal that the dismissal was because of mistakes made by Shearwood, which she believed were done “deliberately and of such magnitude as to be potentially responsible by herself for creating the risk of financial ruin”.
Employment judge Jones said Shearwood’s grievance “did not land well” and was reflected in her dismissal as it created a “total breach of trust and confidence”.
Jones added that it was “seldom fair” for an employer to take offence when faced with a grievance criticising management actions towards an employee. “It is a time for investigation and reflection with an open mind. Mistakes can be made and grievances provide what should usually be viewed as a welcome opportunity to put them right,” said Jones.
Shearwood was awarded £11,885.62 for unfair dismissal.
Alexandra Mizzi, legal director at Howard Kennedy, said that when a business is experiencing a crisis, employers will often want to make immediate changes, including firing those it sees as responsible, but advised caution. “While gross negligence can be a form of gross misconduct, it's unlikely to justify dismissal on facts such as these, where an employee was suddenly given a new role, had been honest about her need for additional training and where her errors were linked to wider operational problems,” she said, adding that the dismissal was found to be partly motivated by a grievance and taking a lunch break, and that, “even in a crisis, employers need to be cool headed and avoid retaliating against employees who raise complaints”.
Neither LED nor Shearwood could be reached for comment.