Animal keeper accused of inviting former employee into a staff only area was unfairly dismissed, tribunal rules

Judge says decision was outside the band of reasonable responses as previous owners had permitted former workers access to staff only areas

Credit: Craig Dingle/iStockphoto/Getty Images

An animal keeper, accused of inviting an ex-staff member into a ‘staff only’ area was unfairly dismissed, a tribunal has ruled.

The Dundee hearing found that Morna Gunn’s invitation of her former colleague Sharon Coutts to Auchingarrich Wildlife Park’s (AWP) feed barn was in line with previous company practice and did not constitute gross misconduct.

The tribunal found a “fundamental failure” in the disciplinary proceedings, and ruled that AWP breached the Acas Code of Practice “in a number of respects”, including a lack of a “reasonable investigation”.


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Background

The tribunal heard that Gunn was employed as a weekend shift animal keeper by AWP on 10 March 2020 until her dismissal on 27 August 2022.

Her employment transferred to Star International Enterprises Ltd (SIE) after it purchased the centre around April 2022 from its previous owners, Andrew and Maxine Scott.

In a staff handbook containing disciplinary rules, it stated that it is the “duty of all employees to report any unauthorised persons seen on the premises”, yet the tribunal found that the previous owners considered former members of staff they knew not to be an unauthorised person for that condition.

On 25 June 2022, Gunn and SIE’s director Alexa Reid, had a meeting, during which Gunn was told by Reid that she was “not acting as part of the team” as she did not start work until 10am – which were Gunn’s agreed hours with the previous owners. Reid told the tribunal she was not aware of this agreement as it “had not been shown to her”.

Reid also said she felt this way because Gunn had left the team Whatsapp group chat. But Gunn told the tribunal she left the group as she had a “data limit” on her phone and much of the detail in the group was “irrelevant”. 

Reid said she would let Gunn go if matters did not improve, which Gunn mistakenly heard as she had been let go. Gunn subsequently raised a grievance over this, alleging that she had been told of an intent to let her go, but it wasn’t upheld.

On 26 June 2022, Coutts, who had left AWP four months earlier, visited Gunn at the park.


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The tribunal heard that Coutts gained access to the site by passing a gate with a no entry sign, and later met Gunn in the feed barn – which contains a filing cabinet for vet records – which displayed a “staff only” sign and is usually locked. 

An AWP employee, Kevin Campbell, who had previously seen Coutts gain access to the site, saw her in the feed barn and called the director – Reid – to inform her about Coutts’ presence.

Reid then told him to speak to her partner and fellow director Rob Matthews, who told Campbell to ask Coutts to leave. Campbell failed to find Coutts at this point and returned to his duties.

Campbell later wrote a statement, claiming that Gunn and Coutts were “both in our vet medicine room, stock room…looking through paperwork” and that he noticed “a lot of laughter between them whilst going through our documents”. 

Gunn wasn’t approached by anyone on that day about Coutts’ visit, and the tribunal heard that no concerns were raised between Matthews and Gunn in an exchange of text message on the same day.

After seeking advice from an HR consultant about how to deal with the claims, SIE took action. 

On 29 June, Reid sent a message to Gunn via Whatsapp inviting her to a disciplinary meeting and outlining the allegations of allowing an ex-staff member into the company’s private property and to look through the medical room filing cabinets.

Gunn strongly denied going with Coutts into the medicine room or looking through the filing cabinet.

In June, Leitch – who was in the barn when Coutts visited – faced a disciplinary and was dismissed for not raising the issue of a non-staff member being present in a staff only area.

On 7 August, Gunn attended her own disciplinary hearing and told the tribunal she felt “intimidated” by Matthews and the manner in which he spoke. Another member of staff was asked to join to mitigate that. 

The meeting resumed on 27 August, where Matthews declared that Campbell’s written statement was correct, that it constituted gross misconduct and that Gunn’s employment was immediately terminated.

The tribunal heard that Matthews failed to confirm the dismissal in writing and didn’t send Gunn any documents, despite stating that he would “follow up everything in writing” to her.

On 31 August, Gunn emailed Reid to appeal her dismissal, which Reid replied to by asking her to wait for the process to conclude as Matthews would send a “formal response and supporting documentation in the next couple of days”, yet he hadn’t.

On 23 September, Gunn emailed Reid to confirm her lack of receipt of the documentation, pointing out the Acas Code of Practice breach.

An appeal hearing was eventually arranged for 27 November 2022, and upon investigation by Reid, she decided to refuse the appeal with confirmation of her decision sent by email on 24 January 2023.

The tribunal found that the disciplinary investigation and hearing “had not been carried out correctly”, as Reid didn’t send the information from her investigation to Gunn in advance of her decision, which the tribunal described as a “fundamental failure”.

Coutts and Gunn’s evidence that they were not in the medicine room nor ever had sight or possession of paperwork from the filing cabinet was found to be “clear and convincing” by the tribunal, concluding that the dismissal was unfair under the Employment Rights Act 1996.

The tribunal also said that the “practice of permitting former staff to attend” was “established from the evidence“, adding “there was nothing to put Gunn on notice that that was no longer permitted by [AWP]”. 

Judge’s comments

Employment judge Kemp noted that the “procedural flaws were many and serious”, which also breached the Acas Code of Practice.

“No investigation report was prepared, and written evidence was not provided to Gunn before the disciplinary hearing,” he said. “Mr Matthews did not confirm the decision in writing by letter or similar, despite promising to do so. The delay in sending notes of the hearing was pronounced, and wholly unreasonable of itself”.

Kemp said the decision to dismiss did not fall within the band of reasonable responses, as there was “evidence” that former staff members who were known to them were permitted by the previous owners to be in staff only areas. 

He also pointed out that the disciplinary meeting on 7 August showed that Matthews had “pre-judged” matters and “did not appear…to have an open mind. He argued with [Gunn], cutting across her, and contradicting her in a manner that was in my view simply inappropriate”.

“The manner in which [Matthews] spoke, and appeared to act, was in my view entirely wrong,” said Kemp.

Gunn was awarded a total of £2,186.93 in compensation.

Employment lawyer reaction

Andrew Willis, associate director of legal at Croner, said this incident is one of “several cases” recently passing through an employment tribunal due to an employer’s “failure to complete a fair process”.

“As such, employers should recognise the importance of ensuring processes are conducted fairly and the consequences which may arise when they don’t,” he said. “Where organisations don’t have the internal skills, expertise or resources to do so, it’s useful to consider offering further training or bringing in external experts to manage the process on their behalf.”

AWP was contacted for comment, but Gunn couldn’t be reached.