Mrs S Talbot v Alice (Relief of Poverty and Advancement of Community): 1300130/2023
JUDGMENT
[1]The Tribunal does not have jurisdiction to hear the claim pursuant to the Employment Tribunals Act 1996, section 3 and Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994. _____________________________ Employment Judge Date 18 August 2023 Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.[2]Case No: 1300130/2023 10.8 Reasons – rule 62(3) March 2017 EMPLOYMENT TRIBUNALS Claimant: Mrs S Talbot Respondent: Alice (Relief of Poverty and Advancement of Community) Heard at: Birmingham (CVP) On: 18 August 2023 Before:REASONS
[1]For ease of reference I refer to the claimant as Mrs Talbot and the respondent as the Charity.[2]Mrs Talbot presented a claim for notice pay to the Tribunal on 9 January 2023 after a period of early conciliation which started on 8 November 2022 and ended on 20 December 2022.[3]Mrs Talbot claims that when she resigned on 7 October 2022, she asked the Charity to pay her in lieu of notice. She clai ms that the Charity agreed to pay her i n lieu of notice in an email to her dated 8 October 2022. The sum claimed by Mrs Talbot is £6300 (which equates to 2 months gross pay).[4]The Charity denies liability. It says that Mrs Talbot did not have any contract ual entitlement to payment in lieu of n otice and it did not agree by way of a collateral contract to such a payment . The email of 8 October 2022 had to be read in the context of a negotiation of a settlement between Mrs Talbot and the Charity . Furthermore, whilst the Charity expressly referred to a statement in the email of 8 Case No: 1300130/2023 10.8 Reasons – rule 62(3) March 2017 October 2022 October 2022 thatthat Mrs Talbot would be paid in lieu of notice this had been written in Mrs Talbot would be paid in lieu of notice this had been written in error. The email was taken from standard wordingerror. The email was taken from standard wording provided by the Charity’s provided by the Charity’s employment law advisers and had not been modified.employment law advisers and had not been modified.[5]At the heaAt the hearing, we worked from a digital bundlering, we worked from a digital bundle comprising 1comprising 139 digital pages. The 39 digital pages. The claimant and Mr Matthew Dashperclaimant and Mr Matthew Dashper-- Hughes adopted their witness statementsHughes adopted their witness statements and and gave oral evidence. Mr Randall and Mrs Talbot made oral submissions.gave oral evidence. Mr Randall and Mrs Talbot made oral submissions. The issuesThe issues
[6]At the beginning of the hAt the beginning of the hearing, we agreed the following list of issues:earing, we agreed the following list of issues:a. What period of notice was What period of notice was Mrs TalbotMrs Talbot required to give the required to give the CharityCharity? ?b. Did Did Mrs Talbot resign Mrs Talbot resign with immediate effect on 7 October 2022? with immediate effect on 7 October 2022?c. Did Did Mrs TalbotMrs Talbot request that the request that the CharityCharity pay pay her her in lieu in lieu of of notice? notice?d. Did Did MrMrs Talbot’ss Talbot’s contract of employment entitle contract of employment entitle herher to be paid in lieu of to be paid in lieu of notice? notice?e. If it did not, did the If it did not, did the CharityCharity agree to pay agree to pay Mrs TalbotMrs Talbot in lieu of notice? in lieu of notice?f. Does the ACAS uplift apply?Does the ACAS uplift apply?g. What steps did What steps did Mrs TalbotMrs Talbot take to mitigate her loss during her notice periodtake to mitigate her loss during her notice period??[7]After I heard After I heard the the evidence and submissionsevidence and submissions, I came off the bench to consider my , I came off the bench to consider my decision. decision. When I was reviewingWhen I was reviewing the evidence, it became apparent that there was a the evidence, it became apparent that there was a further issue that I needed to consider which is whether the contractual jurisdiction of further issue that I needed to consider which is whether the contractual jurisdiction of thethe Tribunal was engaged by this claim.Tribunal was engaged by this claim. Before iBefore issuing my decision, I gave Mrs ssuing my decision, I gave Mrs Talbot and Mr Randall an opportunity to make submissions on this point Talbot and Mr Randall an opportunity to make submissions on this point namelynamely,, whetherwhether the the claim arclaim aroseose or or was was outstanding on termination of outstanding on termination of Mrs Talbot’sMrs Talbot’s employmentemployment.. Findings of f Findings of factact[8]On considering the evidence,On considering the evidence, I make the following findings of fact:I make the following findings of fact:a. On 1 September 2018,On 1 September 2018, Mrs Talbot was offered and accepted the paid role of Mrs Talbot was offered and accepted the paid role of Chief Executive Officer of the Charity [7].Chief Executive Officer of the Charity [7].b. The The ooffer ffer lletter contained a written statement applicable to Mrsetter contained a written statement applicable to Mrs Talbot’s Talbot’s employment [8].employment [8]. The notThe notice provisions set out in the written statement provide ice provisions set out in the written statement provide that during the first month of her employment, Mrs Talbot or the Charity could that during the first month of her employment, Mrs Talbot or the Charity could givegive one day’s written notice to terminate her employment.one day’s written notice to terminate her employment.c. After one month’s continuous After one month’s continuous service, the Charity would give Mservice, the Charity would give Mrs Talbotrs Talbot one one month’s written notice of termination of her employment. Where the statutory month’s written notice of termination of her employment. Where the statutory minimum notice period was greater than that amount because of Mrs Talbot’s minimum notice period was greater than that amount because of Mrs Talbot’s length of service when notice of termination is given,length of service when notice of termination is given, ththe Charity would e Charity would ensure that Mrs Tensure that Mrs Talbot would receive at least the statutory minimum period of albot would receive at least the statutory minimum period of notice. After one month’s continuous period of service,notice. After one month’s continuous period of service, Mrs Talbot was Mrs Talbot was required to give the Charity one month’s written notice to terminate her required to give the Charity one month’s written notice to terminate her employment.employment.d. The wrThe written statement also itten statement also conferred the right upon the Charityconferred the right upon the Charity to deduct a to deduct a day’s pay for each day not worked by Mrs Talbot during her notice period if day’s pay for each day not worked by Mrs Talbot during her notice period if she left her employment without giving the proper period of notice or if she she left her employment without giving the proper period of notice or if she leftleft during her notice period witduring her notice period without permission.hout permission.e. The written statement does not contain any provision conferring the rightThe written statement does not contain any provision conferring the right to to payment in lieu of notice on termination of employment.payment in lieu of notice on termination of employment. Case No: 1300130/2023 10.8 Reasons – rule 62(3) March 2017f. On On 18 March 2021, Mrs Talbot agreed to a variation of her contract of 18 March 2021, Mrs Talbot agreed to a variation of her contract of employmemployment. The effect of the variatent. The effect of the variation was to increase the period of notice ion was to increase the period of notice that that sheshe was required to give the charity to 12 weeks.was required to give the charity to 12 weeks. Other than this, the Other than this, the terms and conditions of her employment remained unchanged. terms and conditions of her employment remained unchanged. For the For the avoidance of doubtavoidance of doubt, the variation did not c, the variation did not confer any right to payment inonfer any right to payment in lieu of lieu of noticenotice..g. On 7 October 2022, Mrs Julie Mirowski, On 7 October 2022, Mrs Julie Mirowski, the Chair of the Charity’s Trustees, the Chair of the Charity’s Trustees, wrote to Mrs Talbot to inform her that she was being suspendedwrote to Mrs Talbot to inform her that she was being suspended on full payon full pay [44]. The[44]. The reason given for the suspension was to enable thereason given for the suspension was to enable the Charity to Charity to investigate alleginvestigate allegations of potential gross misconduct in relation to ations of potential gross misconduct in relation to mismanagement of the organisation and a failure to follow an instructionmismanagement of the organisation and a failure to follow an instruction from from the Trustees not to access laptops, computers or emails. The letter also the Trustees not to access laptops, computers or emails. The letter also stated, amongst other thstated, amongst other things:ings: Having considered alte Having considered alternatives to suspension,rnatives to suspension, I have concluded that I have concluded that this is the appropriate course of action at this time especially due to this is the appropriate course of action at this time especially due to nature of the investigation being centred on digital records. The nature of the investigation being centred on digital records. The suspension is subject to onsuspension is subject to on--going reviews. going reviews. Your suspension is not a Your suspension is not a discdisciplinary sanctioniplinary sanction and it is not a finding of guilt or a preand it is not a finding of guilt or a pre--judgement judgement of the outcome of the matter.of the outcome of the matter.h. On 7 October 2022, Mrs Talbot sent an email to Mrs Mirowski tendering her On 7 October 2022, Mrs Talbot sent an email to Mrs Mirowski tendering her resignationresignation [45]. She stated:[45]. She stated: I am writing I am writing to inform you that I resign as CEO ofto inform you that I resign as CEO of Alice charity today Alice charity today as my position is now untenable.as my position is now untenable. The suspension imposed on me today is probably the cruellest things The suspension imposed on me today is probably the cruellest things anyoneanyone has ever done to me.has ever done to me. I request that you pay me my notice period in lieu. I will sign a I request that you pay me my notice period in lieu. I will sign a Settlement Agreement in return, savingSettlement Agreement in return, saving you the liability of a tribunalyou the liability of a tribunal and the cost of a lengthy investigation.and the cost of a lengthy investigation.i. There is no disputeThere is no dispute between the parties that Mrs Talbot resigned with between the parties that Mrs Talbot resigned with immediate effect. I confirmed this with the parties at the beginning of timmediate effect. I confirmed this with the parties at the beginning of the he hearing. She did not give the requihearing. She did not give the requisite period of site period of 12 weeks’ 12 weeks’ noticenotice under her under her contract of employment (as varied). Her employment terminated on 7 October contract of employment (as varied). Her employment terminated on 7 October 2022.2022. This is also confirmed by the P 45This is also confirmed by the P 45 that was issued to Mrs Talbot [48].that was issued to Mrs Talbot [48].j. On 8 October 2022, On 8 October 2022, Mrs Mirowski replied to Mrs TalbotMrs Mirowski replied to Mrs Talbot [47][47]. Fo. For the purposes r the purposes of the claim the followingof the claim the following parts of her email are relevant:parts of her email are relevant: … … I confirm I confirm your last your last day day of employment, in accordance with the notice of employment, in accordance with the notice you have given, was Friday, 7 October 2022. You will be paid in lyou have given, was Friday, 7 October 2022. You will be paid in lieu of ieu of notice.notice. … … Despite your offer of a Despite your offer of a Settlement Agreement with the Organisation is Settlement Agreement with the Organisation is not currently minded to agree to such terms and will continue our not currently minded to agree to such terms and will continue our investigations. If, however, a sum equivalent to the overpayment investigations. If, however, a sum equivalent to the overpayment Case No: 1300130/2023 10.8 Reasons – rule 62(3) March 2017 notice made to notice made to Aaron Petts, Joe Talbot and Tony Talbot was repaid Aaron Petts, Joe Talbot and Tony Talbot was repaid within seven within seven days we may reconsider your offer (days we may reconsider your offer (as attached).as attached).k. Mrs Talbot Mrs Talbot hashas not received payment in lieu of notice.not received payment in lieu of notice. Applicable lawApplicable law
[9]The relationship between employer and employee is primarily a The relationship between employer and employee is primarily a contractual one contractual one governed by the terms and conditions agreed between themgoverned by the terms and conditions agreed between them and contained in their and contained in their contract of employment.contract of employment.[10]A contract is a promise, or set of promises, that the law will enforce. In the context of A contract is a promise, or set of promises, that the law will enforce. In the context of an employment contract, for example, the emplan employment contract, for example, the employee usually promises to perform oyee usually promises to perform certain tasks for the employer, who in certain tasks for the employer, who in turn promises to pay the employee wages or a turn promises to pay the employee wages or a salary. There will also usually be a range of promises made by the employer covering salary. There will also usually be a range of promises made by the employer covering matters such as holiday, sick pay and working conditiomatters such as holiday, sick pay and working conditions.ns.[11]These promises are enforceable in the sense that, if one party to tThese promises are enforceable in the sense that, if one party to the contract breaks he contract breaks a promise, the other party will be entitled to seek damages for that breach or, in a promise, the other party will be entitled to seek damages for that breach or, in exceptional circumstances, an order from a court preventing further breaches from exceptional circumstances, an order from a court preventing further breaches from taking place.taking place.[12]For a contract to exist, several conditions must be satisFor a contract to exist, several conditions must be satisfied. There must be an fied. There must be an agreement (usually consisting of an offer which is then accepted) made between two agreement (usually consisting of an offer which is then accepted) made between two or more people, the agreement must be made with the intention of creating legal or more people, the agreement must be made with the intention of creating legal relations andrelations and the agreement must be supported by consideration the agreement must be supported by consideration —— i.e. i.e. something of something of benefit must pass from each of the parties to the other. Note also that the individual benefit must pass from each of the parties to the other. Note also that the individual terms of a contract must be sufficiently certain for the courts to be able to give them terms of a contract must be sufficiently certain for the courts to be able to give them meaningmeaning..[13]MMrs Talbot is advancing a contractual claimrs Talbot is advancing a contractual claim before the Tribefore the Tribunalbunal. She argues that the . She argues that the Charity Charity isis contractually obliged to pay her in lieu of notice.contractually obliged to pay her in lieu of notice. Under the Under the Employment Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (the “1994 (the “1994 Order”), tOrder”), the Tribunal has jurisdiction to hear contractual claims. he Tribunal has jurisdiction to hear contractual claims. However, for the However, for the Tribunal to be able to hear a contractual claim brought by an employeeTribunal to be able to hear a contractual claim brought by an employee, that claim , that claim must arise or be outstanding on termination of the employee’s employment and must must arise or be outstanding on termination of the employee’s employment and must seek one of the fseek one of the following:ollowing:a. Damages for breachDamages for breach a contract of employment ora contract of employment or any other contract any other contract connected with employment.connected with employment.b. The recovery of a sum due under such a contract.The recovery of a sum due under such a contract.c. The recovery ofThe recovery of a sum in pursuance of any enactment relating to the terms or a sum in pursuance of any enactment relating to the terms or performance of such a contract.performance of such a contract.[14]The 1994 Order enables an employee, for example, tThe 1994 Order enables an employee, for example, to bring, on termination, a claim o bring, on termination, a claim for arrears of pay, accrued holiday pay, damages in respect of for arrears of pay, accrued holiday pay, damages in respect of benefits, and benefits, and damages for wrongful dismissal. It can also enable an employee, in certain damages for wrongful dismissal. It can also enable an employee, in certain circumstances, to recover payment of a sum of money under a settlement circumstances, to recover payment of a sum of money under a settlement agreementagreement.. Case No: 1300130/2023 10.8 Reasons – rule 62(3) March 2017 Application of the law to the facts Application of the law to the facts[15]The Tribunal does not have jurisdiction to hear The Tribunal does not have jurisdiction to hear Mrs Talbot’s contractual claim. Mrs Talbot’s contractual claim. At the t the timetime when Mrs Talbot’s employment terminated on 7 October 2023, she did not have when Mrs Talbot’s employment terminated on 7 October 2023, she did not have a contractual right to payment a contractual right to payment in liein lieu of notice. At its highest,u of notice. At its highest, it can only be said that if it can only be said that if she had a contractual right to pay in lieushe had a contractual right to pay in lieu of noticeof notice, such right such right only only arose after arose after termination of her employmenttermination of her employment (i.e. on 8 October 2022). Consequently, the(i.e. on 8 October 2022). Consequently, the contractualcontractual jurisdiction of the Tribunal isjurisdiction of the Tribunal is not engagednot engaged because her claim did not arise because her claim did not arise or waswas not outstanding on termination of not outstanding on termination of her employment.employment. FurthermoreFurthermore on a close on a close reading of Mrs Talbot’s particulars of claim [96] there is nothing to suggest that she reading of Mrs Talbot’s particulars of claim [96] there is nothing to suggest that she had resigned in response to an alleged materresigned in response to an alleged material breach of contract on the part of the ial breach of contract on the part of the Charity sCharity such as in response to the breakdown of the implied term of mutual trustuch as in response to the breakdown of the implied term of mutual trust and and confidenceconfidence thereby triggering a constructive unfair dismissal claim (which she has thereby triggering a constructive unfair dismissal claim (which she has not claimed)not claimed). She simply states that if she wa. She simply states that if she was to be suspendeds to be suspended, her position of coher position of co-founder and Cfounder and CEO would be untenable and she would be forced to resignEO would be untenable and she would be forced to resign. The wholewhole thrust of her claim is thrust of her claim is the Charity’s the Charity’s failure to pay herfailure to pay her in lieu ofin lieu of noticenotice.[16]If I am incorrect If I am incorrect in my conclusion that the Tribunal’s contracin my conclusion that the Tribunal’s contractual jurisdiction is not tual jurisdiction is not engaged, I do not engaged, I do not accept that Mrs Talbot has established that she had a contractual accept that Mrs Talbot has established that she had a contractual right to payment in lieu of noticeright to payment in lieu of notice. When she resigned on 7 October 2023. When she resigned on 7 October 2023, she she requested that she should be paid in lieu of notice as part of a settlrequested that she should be paid in lieu of notice as part of a settlement agreement ement agreement saving the Charity the liabsaving the Charity the liability of a ility of a Tribunalribunal claimclaim and the cost of a lengthy and the cost of a lengthy investigation. investigation. Whilst the email dated 8 October 2022 indicates that the Charity would Whilst the email dated 8 October 2022 indicates that the Charity would pay Mrs Talbot in lieu of noticepay Mrs Talbot in lieu of notice this has to be read in the context of whatthis has to be read in the context of what else was else was saidsaid in that emailin that email. Mrs Talbot ha. Mrs Talbot had offered to compromise claimsd offered to compromise claims that she might be that she might be able to pursue under a settlement agreement in return for being paid in lieu of notice.able to pursue under a settlement agreement in return for being paid in lieu of notice. That was the proposedThat was the proposed offer.offer. The Charity rejected that offer and simply indiThe Charity rejected that offer and simply indicated that cated that it mightit might reconsider itreconsider its positionposition if certain conditions were met. At its highest, the if certain conditions were met. At its highest, the correspondence passing between the parties on the 7 October 2023 and 8 October correspondence passing between the parties on the 7 October 2023 and 8 October 2023 is simply evidence of negotiations and not is simply evidence of negotiations and not of of a settled agreement to pay Mrsa settled agreement to pay Mrs Talbot in lieu of notice.Talbot in lieu of notice. Nothing was agreNothing was agreed .[17]In view of my findings, the remaining issues do not fall to be considered.In view of my findings, the remaining issues do not fall to be considered.