“101. The claimant … did not specifically say that her performance generally over the last few weeks since the oral warning (or prior to that) had been affected by her father’s ill-health or the time she had devoted to caring for him and supporting him. She did say that there had been an interaction between her and Mr Astill on the day of her father’ fall; she said this was the context of her having said, about Mr Astill: I don’t respect Mark and I don’t like Mark to him. 102. In relation to her delays in supplying the plan to Mr Young, and the updates to that plan that he had asked for following receipt, she said that this occurred during what had been a tough time because of personal issues; we accept that may have been an indirect reference to her father’s illness, but she did not expressly say so. 103. In the meeting, the claimant suggested that her performance had been reasonable. Her explanation for at least some of the issues that Mr Young was highlighting were that these were problems created by Mr Astill. 104. She accepted during the meeting that she had been unwilling to have Mr Astill as her line manager. She reiterated that her reason for that was a fear caused by poor experience from having the way should be managed by Ms Miles previously. 105. The meeting ended without the claimant being given an outcome, but being told that the standard process was the outcome to be delivered within five working days. She asked for it to be sent by email to her Hotmail account, rather than by post to her home address. 106. The outcome letter (pages 436 to 440) was dated15 May 2018 and had the effect (as decided at an earlier hearing) of terminating her employment with effect from15 May 2018 . 107. We accept that the letter contains Mr Young’s genuine opinions and beliefs. 108. The second paragraph stated: The hearing was held to consider the points outlined in the invitation letter dated 3rd May concerning insubordination and your capability to perform the role. Whilst the points which were considered are set out in the letter, as explicitly discussed in the hearing, the primary reasons were your refusal to report into the level III payroll manager position dating back to January 2016 and covering two separate payroll managers and the breakdown in trust and relations between us and also your payroll business partners. 109. The fourth included the passage: The hearing was held to consider the points outlined in the invitation letter dated 3rd May concerning insubordination and your capability to perform the role. Whilst the points which were considered are set out in the letter, as explicitly discussed at the hearing, the primary reasons were your refusal to report into the level III payroll manager position dating back to January 2016 and covering two separate payroll managers and the breakdown in trust and relations between us and also your payroll business partners. 110. In terms of reporting to Mr Astill, the letter mentioned that the latest date for this had been set as April, and that, in the 8 May hearing, the claimant had said that she could not do this straight away, as she could first need to attend an external course to help her come to terms with this. The letter noted that she had started but been able to complete this external course on two previous occasions, and that she was unable to recall the name of the course. The letter implied that Mr Young was not persuaded that the claimant was either (a) providing a specific date for completion of the course, or (b) stating that she was sure she would be able to report to Mr Astill once she had completed it. The letter also said that Mr Young’s reasons opinions for thinking that the claimant was not yet prepared to report to Mr Astill included his opinions about how she had acted since the verbal warning; he said that she had been negative since the meeting (to the training manager) and had not completed the records he had instructed her to keep. He acknowledged that she had not been in the business for the full period since 14 February onwards ‘through personal issues’, which we take to be an acknowledgment that he was aware that the claimant had been providing support to her father, even though the claimant had not expressly mentioned that in the meeting. He did not expressly mention that she had been absent since28 March 2018 at the respondent’s suggestion that she take time to consider a severance agreement. 111. The letter as a whole makes clear that – while performance issues are being taken into account – the main issue, according to Mr Young was the claimant’s refusal to accept what he said were the reporting structures established in 2016, namely that she should report to payroll manager, not to him, Mr Young, directly.”
“117. During the appeal hearing, Mr Bateh asked the claimant a number of questions which he considered relevant and gave her the opportunity to expand on what she said in her grounds of appeal. He instructed Mr Taylor to conduct some further enquiries to assist him. 118. His appeal outcome letter dated24 August 2018 , at page 494 of the bundle, contains his genuine opinions. He approached the matter with an open mind and considered whether reinstatement (overturning the dismissal decision) was appropriate. In particular, having considered the evidence, he formed the opinions: … during our meeting you showed no indication that you would accept reporting to a payroll manager without further issues and continuing poor performance. I am unconvinced that based on what I have seen you could work in a harmonious manner within the existing structure. I believe that this would only cause further unrest and turmoil for you, the team and the wider business. It is my opinion that many of the performance issues you raised at the appeal were not only caused as a direct result of your unwillingness to accept the reporting line, but also arise from your continued poor demonstration of communication, leadership and time management. These have been a regular area of focus in your three performance reviews in November 2016, June 2017 and November 2017 as well as the previous disciplinary hearings on6th February 2018 and8th May 2018 . 119. He rejected her argument that the dismissal was because of (or connected to) her father’s diagnosis. He said that his enquiries satisfied him that the employer had been extremely flexible in relation to her working time. He rejected her argument that her offer to consider attending mediation meetings with Mark Astill meant that it was wrong for the employer to decide that she was refusing to report to him, or unable/unwilling to work harmoniously with him.”
“170. One possibility is that there was simply confusion or misunderstanding between Mr Astill and the claimant about the availability of the information in the binder. One possibility is that Mr Astill disliked the claimant and seized on a chance to report her. One possibility is that, knowing the claimant had had a warning for poor performance, Mr Astill saw it as his duty to report any perceived failings to Mr Young. 171. In any event, he did not know about the claimant’s father’s cancer, and that did not motivate him to make the report to Mr Young. 172. His report to Mr Young was unwanted conduct. In a ‘but for’ sense, there was some connection between the claimant’s father’s disability, in that, but for her attending to her father, she would have been in work prior to 11am and able to hand the item to Mr Astill and but for her failure to do so, he would not have made the report to Mr Young. However, even assuming, for the sake of discussion, that this was sufficient to justify a decision that the unwanted conduct was ‘related to’ the claimant’s father’s disability, we do not think that it would be reasonable for the conduct to be treated as having the effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The matter was reported to Mr Young but there was no action taken by him. Had she wished to, or had it been necessary for her to do so, the claimant could have explained the circumstances to Mr Young. It would be cheapening the meaning of the words in section 26 to treat the factually accurate report of Mr Astill to Mr Young as amounting to harassment. 173. In terms of the allegation that the claimant was treated less favourably when compared to Ms Keely, we are not persuaded that Ms Keely was a valid actual comparator, as – on the facts – the situations appear different. Asking for, and being granted, an extension, is not the same as being reported for missing a deadline when no extension has been (requested or) given. 174. These allegations of direct discrimination and harassment fail. 5.3.8 In the last week of March 2018 Sinita Johal was rude to the claimant about her arriving late from having been to the hospital: 175. As discussed in the findings of fact, we are satisfied the remark was made (regardless of whether Ms Johal intended to be rude or funny). However, Ms Johal was not aware of the claimant’s father’s situation or of the reasons for the timing of the claimant’s arrival at work. 176. The claimant’s father’s cancer did not motivate Ms Johal to make the remark. 177. The remark was unwanted conduct. In a ‘but for’ sense, there was some connection between the claimant’s father’s disability, in that, but for her attending to her father, she would have been at work earlier, and there would have been no reason for Ms Johal to comment. 178. However, even assuming, for the sake of discussion, that this was sufficient to justify a decision that the unwanted conduct was ‘related to’ the claimant’s father’s disability, we do not think that it would be reasonable for the conduct to be treated as having the effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. It would be cheapening the meaning of the words in section 26 to treat a one off remark of ‘good afternoon’ in these circumstances as amounting to harassment; whether it might have been different had Ms Johal been aware of the true facts is a matter we do not need to address, because she was not aware of the true facts. 179. These allegations of direct discrimination and harassment fail.”
“192. We were not shown evidence of the claimant having been formally warned prior to the 3 May letter, that the respondent was contemplating dismissing her if she did not agree to report to the payroll manager (Mr Astill at the time). As discussed in the findings of fact, Mr Young informed Mr Scales that she had been told she had to do it by1 April 2018 , but she was away from work from28 March 2018 onwards. 193. The lack of evidence of this particular matter having been raised formally earlier is significant taking account of (a) the prominence of this issue in the dismissal reasons and (b) the short amount of time to prepare for the hearing. That being said, this was not one of the grounds on which the claimant sought a postponement, and she did have the full opportunity to put her points across to Mr Young (and again to Mr Bateh). Her argument was not that the respondent’s position was a surprise to her, but rather that there were good reasons that she should not have to report to (a) any payroll manager at all and/or (b) Mr Astill. 194. The dismissal reasons are as stated in the dismissal letter. Lack of ability to report to Mr Astill is discussed in the middle paragraphs on 437, as well as the summary. Notwithstanding the fact on the first page of the dismissal letter (and in the invitation letter) refer to ‘insubordination’, we are satisfied that, as stated, Mr Young regarded this situation about reporting structure as falling into the ‘some other substantial reason’ category, rather than ‘misconduct’. 195. Based on the wording of the letter, the principal reason for the dismissal was the lack of willingness to change and work with a payroll manager or adapt to new processes. There was a close connection between the latter, and the performance process which had been ongoing. Some of the evidence for the latter was the failure (in the respondent’s opinion) for the claimant to adopt changes which she had been clearly instructed to adopt in her performance reviews, and the 6 February meeting. 196. However, Mr Young’s opinion was that, regardless of the specific reasons that the claimant was not adopting changes to her working practices, or accepting the 2016 structure which required her to report to the payroll manager, the state of affairs which existed was such that the respondent could no longer accept the situation that the claimant carried on not doing these things. That was his dismissal reason, and we accept that it is potentially a fair reason: i.e. it is potentially a substantial reason of a kind such as to justify the dismissal of a payroll supervisor. 197. The appeal outcome letter represents Mr Bateh’s honest opinion. The appeal process was fair in terms of allowing the claimant the opportunity to have a hearing before the appeal decision maker. 198. We do not accept that Mr Bateh had a closed mind going into the process. He was willing to listen to what the claimant had to say and his focus was on and what had been given as the reasons for the dismissal by Mr Young and deciding whether the claimant was able to satisfy him that he should overturn that decision. He did not itemise and address all of the points in the appeal letter and individually. However, he did address the challenge to the dismissal as a whole, and the points that insufficient consideration had been given to her father’s situation (or, the alternative, that the father’s situation was the true motivation for the dismissal). 199. Mr Bateh’s reason for rejecting the appeal was that he agreed with Mr Young. On the appeal, the categorisation of the dismissal reason did not change from SOSR to anything else. 200. Our opinion is that it was not reasonable to refuse to postpone the hearing of8 May 2018 , taking into account the claimant’s bereavement and taking into account the short notice, and taking into account the lack of a specific reason put forward by the respondent as to why a hearing a few days later was not workable. 201. The actual dismissal decision itself was not outside the band of the reasonable responses. The decision is not whether the employment tribunal panel would have dismissed at this stage, or whether we think all employers would have done so but whether we consider that no reasonable employer would have dismissed. Our view is that some reasonable employers would have dismissed for these reasons in these circumstances, including that the claimant was making clear that she would not be willing to start reporting to Mr Astill in the immediate future if she came back to work. 202. In terms of the performance issues, the claimant had been given various opportunities to improve after the performance plans. 203. On the evidence, Mr Young (and later Mr Bateh) did not have a fixed opinion that the claimant had to be dismissed regardless of what she said in the respective meetings. The fact that she was given a severance offer, for example, does not persuade us of that. Questions were asked, and the claimant had the opportunity to speak, and her comments were addressed in the respective outcome letters. 204. Taking into account the fact that the claimant did not push the postponement point further and she did say that she was willing to go ahead and taking into account the fact that there was a thorough and fair appeal process, we do not consider that the defect in procedure (pressing ahead on 8 May without offering the claimant a few more days to brief a companion) was such as to render the dismissal as a whole unfair. 205. The unfair dismissal complaint therefore fails. 206. There are no facts from which we could conclude that the dismissal was because of her father’s disability, or related to it. As discussed already, the information given to the claimant about perceived performance issues long pre-dated the disability. We have taken into account that the respondent seems to have changed tack to some extent, and rather than continuing down the pure performance management path, it changed to a process in which the issue that payroll supervisors were supposed to report to the payroll manager became the main focus of attention. That being said, as discussed above, this was not a brand new factor. The requirement for her to do this had been discussed with the claimant previously (albeit not, as far as we know, in the bald terms ‘we will dismiss you otherwise’). 207. The complaints that the dismissal was an act of discrimination or harassment fail.”
“The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision ready in the round: those are all appellate weaknesses to avoid.”
“There is at least one further obstacle to Mr Underhill’s stalwart defense of the Industrial Tribunal’s decision. The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for oversetting the decision. No more is it acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons. Just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in this basic task, whatever its other virtues.”
“57. The following principles, which I take to be well established by the authorities, govern the approach of an appellate tribunal or court to the reasons given by an employment tribunal: 1. The decision of an employment tribunal must be read fairly and as a whole, without focusing merely on individual phrases or passages in isolation, and without being hypercritical. In Brent v Fuller[2011] ICR 806 , Mummery LJ said at p.813: … This reflects a similar approach to arbitration awards under challenge: see the cases summarized by Teare J in Pace Shipping Co Ltd v Churchgate Nigeria Ltd (The “PACE”) [2010] 1 Lloyds’ Reports 183 at paragraph 15, including the oft-cited dictum of Bingham J in Zermalt Holdings SA v Nu-Life Upholstery repairs Ltd[1985] 2 EGLR 14 that the courts do not approach awards “with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards with the object of upsetting or frustrating the process of arbitration”
‘Industrial tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law …their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.’ 3. It follows from (2) that it is not legitimate for an appellate court or tribunal to reason that a failure by an employment tribunal to refer to evidence means that it did not exist, or that a failure to refer to it means that it was not taken into account in reaching the conclusions expressed in the decision. What is out of sight in the language of the decision is not to be presumed to be non-existent or out of mind. As Waite J expressed it in RSPB V Croucher[1984] ICR 604 at 609-610: ‘We have to remind ourselves also of the important principle that decisions are not to be scrutinized closely word by word, line by line, and that for clarity’s and brevity’s sake industrial tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision; and it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assumed in an industrial tribunal’s favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well-established by the decisions of the Court of Appeal in Retarded Children’s Aid Society Ltd v. Day [1978] I. C. R. 437 and in the recent decision in Varndell v. Kearney & Trecker Marwin Ltd [1983] I. C. R. 683.’ 58. Moreover, where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal or court should, in my view, be slow to conclude that it has not applied those principles, and should generally do so only where it is clear from the language used that a difference principle has been applied to the facts found. Tribunals sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the tribunal’s mind, as demonstrated by their being identified in the express terms of the decision, the tribunal can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of its decision. This presumption ought to be all the stronger where, as in the present case, the decision is by an experienced specialist tribunal applying very familiar principles whose application forms a significant part of its day to day judicial workload.” ‘Industrial tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law …their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.’ ‘We have to remind ourselves also of the important principle that decisions are not to be scrutinized closely word by word, line by line, and that for clarity’s and brevity’s sake industrial tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision; and it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assumed in an industrial tribunal’s favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well-established by the decisions of the Court of Appeal in Retarded Children’s Aid Society Ltd v. Day [1978] I. C. R. 437 and in the recent decision in Varndell v. Kearney & Trecker Marwin Ltd [1983] I. C. R. 683.’
“Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision that no reasonable tribunal, on a proper application of the evidence and the law, would have reached. Even in cases where the appeal tribunal has ‘grave doubts’ about the decision of the employment tribunal, it must proceed with ‘great care’, British Telecommunications PLC v Sheridan[1990] IRLR 27 at para 34.”
“26(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 26(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.”
“98(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”
“We were not shown evidence of the claimant having been formally warned prior to the 3 May letter, that the respondent was contemplating dismissing her if she did not agree to report to the payroll manager.”