Ms Y and Ms Z v Mrs C and The Trustees of the AB Trust (Mrs C and Mr D): 1302641/2023 and 1303595/2023

EMPLOYMENT TRIBUNALS

Case No 1302641/2023, 1303595/2023

Between

Ms Y and Ms ZClaimant

Mrs C and The Trustees of the AB Trust (Mrs C and Mr D)Respondent

Before

Employment Judge Flood

In person for claimant

Date 20 May 2025

JUDGMENT

[1]The complaints of unauthorised deductions from wages are well-founded. The second respondent made an unauthorised deduction from:(a) the first claimant’s wages in the period 16 February 2023 to 30 June 2023; and

(b) the second claimants wages in the period 16 February 2023 to 6 July 2023.

[2]The second respondent shall pay:(a) the first claimant £11,647.20; and

(b) the second claimant £12,153.60. The above amounts are the gross sum deducted and will be subject to the payment/deduction of any income tax or National Insurance applicable to such sums.

[3]Under section 163 Employment Rights Act 1996 it is determined that the second claimant is entitled to a redundancy payment of £5,568.75.

[4]The complaint against the second respondent of unfair dismissal (contrary to section 94 Employment Rights Act 1996 (“ERA”)) is well founded. The claimant was unfairly dismissed by the respondent.

[5]The second respondent shall pay the claimant the following sums:(a) A compensatory award of £1,000 representing loss of statutory rights There is a 100% chance that the claimant would have been dismissed as at the date of dismissal in any event so no award for any loss of earnings is made.

(b) No basic award is due as this has been reduced by the amount of the redundancy payment awarded by the Tribunal.

[6]No increase or decrease to any award is made in respect of a failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015. No reduction is applied in respect of any contributory conduct.

[7]When the proceedings were begun the second respondent was in breach of its duty to provide the claimants with a written statement of employment particulars. There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. It just and equitable to make an award of an amount equal to four weeks’ gross pay. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay:(a) the first claimant £2,025.60

(b) the second claimant £2,025.60.

REASONS

[1]The claimants were employed by the second respondent from 17 November 2011 respectively as Team Leader Personal Educational Assistant and Personal Assistant to a disabled adult, AB. Early conciliation for both claimants started on 22 February 2023 and ended on 24 February 2023 and the claim form for the first claimant was presented on 27 February 2023 and the second claimant on 17 April 2023. Both claim forms made it clear that the claimants were claiming ongoing unlawful deductions of wages section 13 of the Employment Rights Act 1996 (‘ERA’);

[2]The second claimant's claim was further amended by applications sent to the tribunal dated 27 July 2023 to request her claim be amended to include a claim for unfair dismissal contrary to section 98 ERA, having been dismissed on 7 July 2023. On 18 October 2023, a further request was made to amend her claim include a redundancy payment under the provisions of section 163 ERA.

[3]There have been two preliminary hearing for case management. The first was before Employment Judge Dean on 12 March 2024 where issues relating to the correct identity of the respondent were discussed. A second preliminary hearing was held before Employment Judge Wright 13 June 2024 where the issues were identified and recorded (‘List of Issues’) and the applications by the second claimant to amend her claim to add complaints for a redundancy payment and unfair dismissal were granted. The second respondent was added as an additional respondent. The List of Issues recorded is also set out below as was referred to during the hearing. As the claimants contend that the respondent failed to issue them with a written statement of terms and conditions within 2 months of commencement of employment, the Tribunal also potentially had to consider the provisions of section 38 of the Employment Act 2002 in relation to whether an award should be made or an award increased because of any such failure. The List of Issues has been amended slightly to address this point.

[4]An agreed bundle of documents was produced for the hearing (‘Bundle’) and where page numbers are referred to below, these are references to page numbers in the bundle.

[5]At the start of the hearing the Tribunal heard an application for an anonymisation order to be made on behalf of the respondent which was granted and so the names of the disabled adult, the trust set up in his name, the claimants and the respondents be anonymised as set out above. Reasons for that decision haven been given in full orally at the hearing they are not set out here and will not be provided unless a request is made within 14 days of the sending on the written record of the decision.

[6]Mr Katz raised a question at the start which was whether the first claimant was in some way contending that there was not an employment relationship, as some of the content of her witness statement suggested this. The first claimant clarified and it was accepted by all parties that both claimants were employees of the respondent at the relevant time.

[7]Both parties made applications to introduce additional documents to which no objection was made by the other party so these were added to the Bundle.

The Issues

[8]The issues to be determined by the Tribunal were as follows: 1. Unauthorised deductions1.1 Were the wages paid to the first claimant from February 2023 until she retired on [6 July] 30 June 2023, and to the second claimant from 16 February 2023 until her dismissal on 7 July 2023 less than the wages they should have been paid?

1.2 Was any deduction required or authorised by statute?

1.3 Was any deduction required or authorised by a written term of the contract?

1.4 Did the claimants have a copy of the contract or written notice of the contract term before the deduction was made?

1.5 Did the claimants agree in writing to the deduction before it was made? 2. Unfair dismissal

2.1 The second claimant was dismissed on 7 July 2023.

2.2 What was the reason or principal reason for the dismissal? The claimant states the reason given by the Respondent for her dismissal were:2.2.1 revealing confidential information to a work colleague,

2.2.2 failing to attend a meeting.

2.2.3 failing to show up to work for 5-6 months.

2.3 The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.

2.4 If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:2.4.1 there were reasonable grounds for that belief;

2.4.2 at the time the belief was formed the respondent had carried out a reasonable investigation;

2.4.3 the respondent otherwise acted in a procedurally fair manner;

2.4.4 dismissal was within the range of reasonable responses. 3. Remedy for unfair dismissal

3.1 Does the claimant wish to be reinstated to their previous employment?

3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?

3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.

3.5 What should the terms of the re-engagement order be?

3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?

3.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

3.6.3 If not, for what period of loss should the claimant be compensated?

3.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

3.6.5 If so, should the claimant’s compensation be reduced? By how much?

3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

3.6.7 Did the respondent or the claimant unreasonably fail to comply with it by?

3.6.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

3.6.9 If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?

3.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?

3.7 What basic award is payable to the claimant, if any?

3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?

3.9 How much is the claimant owed? 4. Redundancy Payment

4.1 The second claimant's case is that if the respondent had wanted to cease using her services, it should have made her redundant and that the above allegations have been raised to avoid paying her a redundancy payment.

4.2 Is the second claimant entitled to be paid a redundancy payment equivalent to statutory redundancy? If so, what is the value of this? 5. Remedy 5.1 How much should the claimant be awarded? 6. Section 38 Employment Act 2022

6.1 Were the claimants issued with a written statement of terms and conditions of employment within 2 months of the commencement of their employment?

6.2 If not, how much (either 2 or 4 weeks pay) should the Tribunal increase any award to be made to the claimants?

6.3 Are there exceptional circumstances which would make an award or increase unjust or inequitable?

Findings of Fact

[9]Both claimants attended to give evidence and Mrs C gave evidence for the respondent. We considered the evidence given both in written statements and oral evidence given in cross examination, re-examination and in answer to questioning from the Tribunal. We considered the ET1 and the ET3 together with relevant numbered documents referred to below that were pointed out to us in the Bundle. In order to determine the issues set out above, we have made findings not only on allegations made as specific complaints but on other relevant matters raised as background. We made the following findings of fact on the balance of probabilities: AB and the AB Trust 9.1. AB is Mrs C’s son. He is Autistic (neuro divergent). He is 33 years old, 6 foot tall, has an athletic build and is physically strong. AB can physically harm himself by biting his hands but can also be aggressive and physically violent to others. He can also damage the environment he is in. He requires constant care and supervision. AB lives with Mrs C (who has other adult children) at a rural location in Abergavenny, Monmouthshire. 9.2. The AB Trust was set up in December 2010 to provide a means for receipt of funds from Monmouthshire County Council (‘MCC’), the local authority within which AB lives, to provide for his care and support and the payment of such funds to providers of that care. There are two trustees, Mrs C and Mr D. Copies of the trust deed said to be the instrument setting up the AB Trust were shown at pages 86 to 97. The claimants raised issues around the authenticity of the trust deed on the basis that the original document submitted at the second preliminary hearing (pages 86 to 91) was not dated, did not contain bank details and was only executed by Mrs C and not Mr D. They submit that the second document submitted when preparing for this hearing is identical in all respects, save that the bank details appear, the signature of Mr D is shown and it has been dated 8 December 2010. This Tribunal is not asked to make findings in relation to whether the trust deed has been validly executed. However it is clear that the AB Trust has been in operation since at least November 2021 and was used as the vehicle to employ the claimants and as a portal for payments of wages to them. The Tribunal is satisfied that the employer of the claimants are Mrs C and Mr D on behalf of the AB Trust, referred to as either the AB Trust or ‘the respondent’ in the remainder of this judgment and reasons. Employment of the Claimants 9.3. The claimants were employed from 17 November 2011 by the respondent. Ms Y had been involved in the care of AB previously when working for a local authority and was familiar with his family and complex needs. In conjunction with Mrs C and AB’s social work team, an arrangement was set up in 2011 to provide continued support for AB for his needs once he had left full time education. At pages 80 to 85 the Tribunal were directed to a document prepared by Ms Y at this time describing the proposed provision of a service to AB via the AB Trust. It was envisaged that a bespoke service be provided to AB to meet his individual educational, development and social needs during the working week (‘the Provision’). This would require 2:1 support for AB which would be provided at Ms Y’s home, which at that time was at Green Farm (3 miles outside Hereford). This setting was to be known as Green Farm College and included the use of a study room and access to facilities inside and outside for AB’s use. 9.4. The financial arrangements for the Provision were that MCC made payments directly to the AB Trust under its Direct Payments scheme (whereby a budget is allocated and a sum awarded by a local authority directly to an individual to purchase care and support services rather than have the local authority provide the services itself). The AB Trust then paid for the Provision. It appears that there were two elements to this. Firstly a management and accommodation fee was paid to Ms Y to cover the costs involved in the running of the physical facility. At the time of the events this claim is about, this was paid at a rate of £1,565 per month. This was not paid as wages and was not subject to tax and National Insurance. Secondly the AB Trust employed staff to work on the Provision. Ms Y was employed as the Care Provision Manager and Ms X (who is Ms Y’s daughter) was employed as Personal Assistant at the time these events took place but the AB Trust had also employed at various times, two other people as Personal Assistants (the son and ex husband of Ms Y). The employees of AB Trust were paid wages for the hours they worked on the Provision. They were paid via the payroll and such payments were subject to the usual deductions for tax and National Insurance. In 2023, both Ms Y and Ms X were employed for 40 hours per week between 8:30am and 4:30pm. Transport to the Provision 9.5. In addition and separately to the employment arrangements, MCC at various times made a financial contribution towards transporting AB to the Provision. This appears to have been a relatively unusual arrangement as we accepted the evidence of Ms Y that in general it is the responsibility of the individual or the family of an individual to provide the transport (which was supported by our findings of fact at paragraphs 9.14-9.16 below). At the time that the Provision was set up in 2011, MCC agreed to provide and fund a lease car for AB’s use specifically to transport him to the Provision. A separate agreement was made between MCC and Ms Y that she would be paid to drive this lease car between the Provision at her home and AB’s home in Abergavenny. This lease car would also be used by Ms Y to transport AB to activities away from Green Farm College during the day. Ms Y was paid for the additional hours she spent driving AB at the start of the day collecting him from his home and at the end of the day bringing him home. These sums were paid via the payroll of the AB Trust and were subject to tax and National Insurance although it appears that the arrangement was in fact made between Ms Y and MCC, with the AB Trust simply being used as the mode of making payment. Mrs C also owned (and still owns) a private car which is also used for AB’s transport needs outside the hours of the Provision (e.g in the evenings and weekends). AB was in receipt of Disability Living Allowance and the mobility component of this benefit was used to partly fund Mrs C’s vehicle. There was much discussion during the hearing about the tax status of this vehicle and whether it was correct and lawful for Mrs C to utilise AB’s benefit and the tax status in this manner. However it is unnecessary for the purpose of these proceedings for the Tribunal to consider this further. Contracts of employment 9.6. During the hearing, the Tribunal were taken on a number of occasions to documents which were said to be the contracts of employment applicable to the claimants. At pages 209 to 220, a document purported to be the contract of employment issued to and signed by Ms Y was shown. This document bears the name of Ms Y and provides a job title as Personal Assistant. The usual place of work is left blank as are the hours of work. It goes on to contain various terms of employment in relation to benefits and obligations. It refers to a job description being attached (although none is shown). Of note is the following provision shown at page 209 and 212: “1.2 Your usual place of work will be at: [left blank] And when requested you will work away from the usual place of work either accompanying me or independently of me.” and “6.5 Owing to the nature of the work you have been employed to carry out, there may be times when I for some reason(s) do not require your full contracted hours of service. In such circumstances I can request any of the following courses of action at my sole discretion: 1. You take any unused annual leave. 2. A retainer for up to four weeks. None of the above actions will be treated as a breach of contract. If I do not require your services, it may be necessary to make your position redundant. This will be carried out in line with any statutory requirements. This action may be taken notwithstanding the above courses of action.” 9.7. At page 220, the signatures of Ms Y, Mrs C and Mr D are shown as well as the illegible signature of a witness. Next to all signatures is the date “8th Jan 2010” although it appears that the date was originally “8th Jan 2011” with the date altered to show the last digit as a ‘0’ rather than a ‘1’. At pages 221 to 232 a further document purported to be the contract of employment issued to and signed by Ms Y was shown. This again bears the name of Ms Y and provides for a job title of Personal Assistant. However on this document, the place of work is filled in and shown as “the employer’s address”. It is dated “8th Jan 2012” but again it looks as if this date has been altered in manuscript from an original date of “8th Jan 2011” with the last digit altered to show a ‘2’ rather than a ‘1’. In all other respects it looks as if it is the same or a very similar document to the document at pages 209-220. At pages 232, the signatures of Ms Y, Mrs C, Mr D and a witness are again shown with the dates next to such signatures being “8th Jan 2012” again with the last digit altered to a ‘2’ from a ‘1’. Mrs Y denied that this document was ever sent to her or signed by her in the manner shown. She cannot account for why her signature appears to be on the document and contends it may have been added by someone else. 9.8. We accepted that Ms Y was familiar with the form of the document as this is the template of a contract of employment that she held on her computer (based on the MCC standard terms for a carer) and had used to prepare contracts for employees that she had recruited in the past. Ms Y was solely responsible for recruitment (as she contended it was up to her who worked in her own home) and that Mrs C or the AB Trust were not involved at all. However upon making a job offer, Ms Y would prepare a contract to be issued which she sent to Mrs C to issue on behalf of the AB Trust. In practice Mrs C does not appear to have issued such contracts that were forwarded to her. Ms Y agreed that in general terms she was working in accordance with the provisions shown in the template contract. 9.9. At pages 233 to 244 a document purporting to be the contract of employment issued to and signed by Ms X was shown. On the first page where employer and employee details are entered, an original manuscript entry showing the name of Ms Y has been crossed out and the (previous) name of Ms X added. The date looks as if it is “8th Jan 2012” and it appears to have the same anomaly with the date change from an the originally added date of 2011. This documents is similar in form and content to those referred to above. It states that the job title is Personal Assistant and although the place of work is not shown as typed text, the words “employers address” have been added in manuscript. The signature of Ms X, Mrs C, Mr D and a witness are shown with the date of “8th Jan 2012” once again with the apparent change to the final digit from a ‘1’ to a ‘2’. Ms X denies ever being issued with or signing this contract and cannot explain why her signature appears on this document. 9.10. It is the position of both claimants that as they never signed or were issued with any of the contracts shown and that their signatures have been placed there by someone else. They contend that the signing pages are wholly unreliable as the signature of Mr D looks entirely different on each document and point to the fact that the date has been altered apparently after the event showing in effect 3 different dates of signing between 2010 and 2012. They contend that as they did not become employed until November 2011, the documents with dates earlier than this cannot be genuine. They point out that the witness name is illegible and say that the signature is similar in form to Mrs C’s. 9.11. Mrs C’s evidence is that one or all of these contracts were issued to the claimants. In support of this, the respondent relies on an e mail sent by Ms Y to the respondent on 9 May 2019 (pages 410 and 411). This e mail included the following message: “Just checked contract and it’s ‘paid at fulltime rate for up to one week in any financial year’ ….the bottom line in photo” It also attached a screenshot of a photograph of a page of document which looked similar to the contracts referred to above. This photograph showed extracts from clauses 8 and 9, being the dependent care leave and sickness provisions and showed that this was page 4 of a 12 page document. The respondent submits that this shows that Ms Y had a copy of a contract of employment that had been issued to her. 9.12. The situation around the contracts of employment was highly unsatisfactory and the Tribunal found it difficult to make sense of the various pieces of papers that its attention was drawn to. We find that none of the documents referred to at paragraphs 9.6 to 9.9 can be relied upon as genuine and accurate given the difficulties with dates, signatures and handwritten amendments. Mrs C was unable to provide any explanation at all as to the three different dates shown on the documents or how that had occurred. She had no recollection of when and where the contracts relied upon were signed. The page of the contract shown in the e mail that the respondent produced does not correspond and is different to both the documents referred to at paragraphs 9.6 to 9.9. Therefore on the issue of whether contracts were in fact sent to both claimants we preferred the evidence of the claimants that they were never sent. However it is clear that certainly in respect of Ms Y the broad terms contained in the documents shown were the terms she (and perhaps others) were working to. When a query arose to what the terms were that employees worked to, Ms Y looked at the terms contained in the template document. Place of Work 9.13. A significant issue in this claim was the place of work of the two claimants. On the template contract this is left blank. Our findings of fact above were that the various documents said to be the signed contracts of Ms Y and Ms X could not be relied upon. We find that those documents which have inserted as place of work ‘employer’s address’ were not genuinely signed contracts of employment that applied to the claimants. Rather the Tribunal finds that the place of work of both Ms Y and Ms X was at all times the home of Ms Y. Indeed Mrs C confirms that this was always the case in her written witness statement. The claimants never worked at the home of AB or any other location and the suggestion that this was the agreed place of work is nonsensical and inconsistent with the other contentions made by the respondent (particularly in relation to transport). The position stated in the hearing of the respondent that arrangement was that if care could not be provided by the claimants at the home of Ms Y, that it reverted to being provided at AB’s home is not accepted. The whole basis of the Provision was that it was to provide continued support for AB for his needs once he had left full time education outside of his home at a setting akin to an educational establishment or college, hence Green Farm College. There is no evidence at all that there was any agreement that the Provision would default in any circumstances to AB’s home. Change to transport arrangements in 2017 9.14. We heard much evidence about a change in the arrangements for transport for AB in 2017. Ms Y contended that MCC became aware that Mrs C had a vehicle or her own funded by AB’s PIP mobility component and ultimately removed the transport provision it had put in place to transport AB to the Provision. Mrs C denied that there was any withholding of information on her part from MCC or that her arrangements had not been appropriate. Ultimately this Tribunal does not need to determine why the transport provision was changed. However it is common ground that the lease car was removed and returned to MCC in July 2017 following a period of debate and discussion about the arrangements. At page 166-167 we saw e mail correspondence between Ms Y and a member of care services at MCC in which it was stated to Ms Y: “I agree that providing a car is not your responsibility but equally it is not the responsibility of the LA to provide [AB] with a car. His assessed need is that he needs transport to get to and from his day service. As discussed [AB] has money from the public purse to cover his transport costs, we will supplement this with £50 per week DP to cover the cost of his transport to and from day services. Perhaps we jointly need to think creatively about how his mobility needs can be met?” At page 113 the Tribunal were shown a letter from MCC to Mrs C dated 23 June 2017 confirming that the lease car was being removed. It made reference to a transport policy which “places the onus on individuals to fund their own transport costs going forward”. It is also common ground that at all times Mrs C refused to transport AB to the Provision (she told us that she did not have the time or afford the expense of doing so as she had to work to support AB and herself). 9.15. The letter from MCC to Mrs C at page 113 also stated the following: “You suggested that [AB]’s Personal Assistant, [MsY] would be prepared to purchase/lease a vehicle which could be used by AB and he would be able to contribute half of his mobility allowance towards the mileage costs incurred. You asked if [MCC] would be able to pay an additional £104.00 per week into the direct payment to cover the remaining mileage costs. I have considered this arrangement and although it does fall outside of the transport policy, it would appear that at the present time this is the only solution that would enable [AB] to access the community which is very important to him. In view of this I attach revised costings at the current direct payment pay rates with the additional contribution of the £104.00 per week mileage as requested.” 9.16. It appears that this was then discussed with Ms Y and an arrangement was made. Mrs C contends that the agreement was that Ms Y would collect AB from his home every day and take him to her home and return him every evening (as she had been doing previously). However this would be done by Ms Y in her own vehicle and in return she would receive the sum of £104 per week (funded via MCC Direct Payments and paid via the AB Trust) plus an additional sum of £116 per month funded by Mrs C (also paid via the AB Trust). Mrs C contends that this was intended to replace the previous arrangement and amounted to the AB Trust paying Ms Y for transport as an additional term of her employment. She did not agree that this was just to cover the mileage costs. 9.17. Ms Y contends that she initially agreed to transport AB at the time as she was concerned that he would not be able to get to the Provision. She told the Tribunal that she agreed to do this on a temporary basis with the hope that Mrs C would be able to agree an alternative arrangement eventually with MCC or otherwise to provide for a long term solution. She referred us to an e mail exchange between her and Mr Logan, AB’s social worker at MCC at the time and in particular an e mail from Mr Logan on 9 October 2017 as follows: “Following our telephone conversation, just to confirm the misunderstanding of the fuel costs. I can confirm the amount of £104 per week will be paid into the Direct Payments account to help towards covering the fuel costs for [AB]. [Mrs C] will also need to pay a contribution as well. This is because it is expected that [AB] pays for his own fuel. This will be agreed for 3 months at which time it will be reviewed as it is only to cover a short term agreement while you are transporting. I hope this clears up the misunderstanding, I apologise for any confusion and I am grateful for your help through this period.” 9.18. Nothing was ever put in writing between the AB Trust and Ms Y about this transport arrangement. This continued well beyond what appears to have been the initial period of 3 months. Ms Y continued to transport AB to and from his home to hers whilst he was attending the Provision. The Provision did not operate at various points during the Covid lockdowns of 2020 and 2021 and transport was not provided then but at other times it was (albeit it appears that on a number of occasions, Mrs C did agree to meet Ms Y at a location between the two for AB to be handed over to her care). Ms Y gave unchallenged evidence that from receiving the sum of £532 per month was insufficient to cover the costs involved in transporting AB to the Provision. Ms Y continuously raised the issue of transport with Mrs C and MCC during this period and complained that she was not being compensated for the time and costs being incurred transporting AB. Mrs C accepted that Ms Y did “regularly complain” about the level of payment received and that apart from one occasion (addressed below) she informed Ms Y to take it up directly with MCC. During this time, Mrs C was in dispute with MCC about transport and other aspects of AB’s funding and care (which Ms Y described as feeling like “world war 3”). 9.19. The Tribunal accepted that Ms Y continued to provide the transport either to and from AB’s home address or to and from a different agreed location, with the hope that the issue of transport would be resolved on a more permanent basis between MCC and Mrs C. When challenged as to why she continued to transport AB despite these difficulties, Ms Y told the Tribunal that she was concerned about AB’s needs and about the members of staff working on the Provision whose jobs might be under threat. Increase in sums paid in 2022 9.20. Ms Y gave further unchallenged evidence that from September 2021 the costs of fuel ‘soared’ and she became further out of pocket running a deficit each month paying more on fuel than she received to cover fuel costs from the AB Trust. Ms Y raised it with Mrs C who initially told her to “take it out of staff wages” which Ms Y refused to do. After a dispute between the two, Mrs C agreed to increase the payment to £187.65 per month with effect from 17 March 2022. Again nothing was put in writing about this change between the AB Trust and Ms Y. Ms Y told us that this was still insufficient but was “better than nothing”. Ms Y estimated that over the period of 5 years that she was transporting AB she “lost in the region of £27,000” and felt that Mrs C had abused her offer of help and support for AB. No additional sums were reimbursed to Ms Y by the AB Trust for the upkeep of vehicles and wear and tear and she was not paid additional hourly sums for the time spent driving. Resignation/retirement of first claimant 9.21. At some point, it appears that Ms Y wrote to Mrs C to give notice of her intended retirement with effect from 30 June 2023. No copy of this letter was seen but we accepted Ms Y’s evidence that she gave 12 months’ notice, and later e mails (see below) suggested that this was a letter sent on 13 June 2022 and acknowledged on this same date. In any event a acknowledgment of resignation letter was sent on 7 June 2023 (see below). Following the notification of Ms Y’s resignation, Mrs C did not take steps to make alternative arrangements for AB from June 2023 onwards or consider what would happen to Ms X’s employment when Ms Y retired. Ms Y considered that the Provision had to continue nothwithstanding her retirement and she made provisional arrangements that Ms X would take over the management of the Provision. Ms Y also contacted her former husband, Mr Y (who had previously worked on the Provision) and asked him to return to work on the Provision to assist Ms X once Ms Y had retired. The claimants submitted a written but unsigned statement from Mr Y giving his account of the conversation he had with Ms Y on 8 May 2023 where he was asked to work on the Provision when she retired. This statement confirmed that Mr Y did not speak to Ms X about this but Ms Y only. Whilst Mr Y did not attend the hearing to give oral evidence, we had evidence from Ms Y and Ms X that this is what happened and that Ms X had not been involved in these discussions. We accepted this evidence and find that it was indeed Ms Y who contacted Mr Y and asked him to return to work, not Ms X. 9.22. Both Ms Y and Ms X contended that there had been discussions previously about what would happen if AB moved from the Provision involving Mrs C previously but the discussions stopped from January 2023 onwards (see below). Mrs C said she had never agreed that Ms X would take over as manager, nor that another employee, Mr Y, would be recruited. We preferred the evidence of Mrs C on this matter and find that although Ms Y had been taking steps to arrange for the handover of duties and the continuation of the Provision on her impending retirement, she was doing this independently and nothing was agreed with Mrs C or the AB Trust that this would in fact take place. Incident involving breakdown of first claimant’s car in January 2023 9.23. On 9 January 2023, Ms Y’s car broke down when she was on the way to collect AB. Ms Y informed Mrs C that she would be unable to collect AB that day and proposed that the following day, Mrs C drive AB 30 minutes from her home to a location where Ms Y could meet them and then take AB to the Provision in a car she had temporarily borrowed. This took place on 10 and 11 January 2023 but Mrs C informed Ms Y on 11 January 2023, that if she did not have a car for AB by the following day that he would not be attending the Provision. On 12 January 2023, Ms Y drove to the location advised and Mrs C and AB did not arrive as they had the previous 2 days and during a telephone conversation that day, Mrs C informed Ms Y that AB would not be coming. Ms Y told Mrs C that the Provision was still in place and that she and Ms X were at work as usual ready to work and sent messages to this effect in the working days following this incident where AB did not attend. 9.24. There was some discussion between Ms Y and Mrs C about how to resolve the situation with Ms Y contacting MCC to see if a solution could be found but to no avail. On 20 January 2023, having received an estimate for the cost of repair to her car at £5,000, Ms Y decided that she would not go ahead with the repair and informed Mrs C. Mrs C informed Ms Y on 21 January 2023 that her other son would be taking over AB’s care. Ms Y responded by an email on 23 January 2023 (page 176) that this proposal was an interesting opportunity going on to state: “I guess where we are at, is that the package no longer meet your needs She went on to state that she would be prepared to fight for transport but that this could take a long time and mentioned that there was a possibility that MCC could decide that it was reasonable for Mrs C to drop AB at a location closer to the provision. She suggested that Mrs C could, “decide to make it/us redundant as it’s no longer meeting your needs”. 9.25. Mrs C responded with a suggestion that some of the 2:1 support hours be reduced or that days be reduced or that the work be done from AB’s home, going on to state, “If you feel you can no longer continue with the transport then either we can continue to progress the request with Mike or, of course, you could finish now instead of the June retirement if you prefer. The retainer only comes into play though if services aren’t required instead of unavailable but I can check for you if you like. I don't think redundancy is an option. The package provided is no longer able to meet needs, but nothing else has changed and it's certainly not a redundant position.” The conversation by e mail continued with Ms Y stating on 24 January 2023 that she felt that she was meeting “our agreed obligations, and supplying the package that was agreed” again stating that she was available and ready for work and could support Mrs C by meeting her temporarily in Ross whilst the situation was resolved. Ms Y reiterated that she felt that transport was not her responsibility. Mrs C stated that “in the absence of the provision of transport then [AB] is and remains unable to use” the Provision. An impasse was then reached with Mrs C confirming she was unable to provide transport and if Ms Y was no longer able to provide that transport that the Provision was “no longer viable”, going on to state that if Ms Y wanted to close it down it was up to her. Sending of AWOL notification letter 9.26. On 30 January 2023 Mrs C sent a letter to Ms Y by e mail (pages 178- 79) stating that Ms Y had been absent from work since 12 January 2023 and that although she had been informed that the car was off the road that there was “no good reason” for the absence. The letter described the absence as unacceptable and that if Ms Y failed to contact her to discuss reasons for absence or if the reasons were unacceptable that she may be subject to disciplinary action. Similar letters were sent to Ms X and Ms Y’s son, who was also employed in the Provision at the time. Response to AWOL notification letter from Ms Y 9.27. Ms Y replied on 1 February 2023 with a lengthy e mail (pages 180 to 187) disputing the contents of the letter and again stating that she and Ms X were available for work and would be “at work, from Monday to Friday 8:30am-4:30pm as per our contracts”. She also repeated the offer to meet Mrs C in Ross on Wye to pick up AB. Ms Y also informed Mrs C that one of the other employees, her son had resigned from his employment with immediate effect citing the contents of the AWOL letter and a “toxic environment”. The letter alleged that statutory employment rights were being interfered with and asked for evidence to support the contention that appears to have been made that Ms Y was responsible for transporting AB to the Provision. It reiterated the position of Ms Y that if Mrs C felt that the Provision was no longer meeting her needs that the roles of employees needed to be made redundant and that if AB was kept away from the Provision, the AB Trust was still liable to pay for the contractual hours of employees of 40 hours per week. 9.28. On 6 March 2023, Ms Y was in contact with MCC to update them of the situation (page 188-9). On 7 March 2023, Mrs C wrote to Ms Y (page 189) setting out her position stating that, “…there has always been an agreement that you would be paid to transport [AB] from his house and take him to his provision and bring him home.” It went on to suggest that Ms Y had unilaterally changed an agreement that had been in place for 20 years without consultation. It offered a period of 1 week’s unpaid leave for Ms Y to “sort out” her vehicle but that she would continue to be marked as absent. Ms Y again responded on 7 March 2023 on behalf of her and Ms X disputing the position (page 190-1) again stating that she and Ms X were at work every day and available for work. On 7 June 2023, Mrs C sent a letter to Ms Y confirming that she accepted her resignation letter of 13 June 2023 (page 192). This is a puzzling letter as it was dated after the date it was sent which suggests the date was a typo. Ms Y responded pointing out this out (page 193) referring to earlier correspondence sent by her on 13 June 2022 which was a notice of retirement, not resignation which had already been acknowledged. She also disputed the reference to her having worked for 20 years in earlier letters on the basis that she had only been employed since 2011. Notification to first claimant of non payment of wages 9.29. On 15 February 2023, Mrs C wrote to Ms Y (page 195) to inform her that she would be paid the management and accommodation fee for the current month but that as she had “remained absent since 12th January 2023” that she would not receive wages for the days she was absent. It also referenced the receipt of a grievance and that a hearing would be held and Ms Y notified of the arrangements. Ms Y and Ms X were not paid their wages from 12 January 2023 (which were due to be paid on 16 February 2023. Ms Y responded on 20 February 2023 (page 196-7) stating that she regarded her wages to be outstanding and making a demand for them to be paid. She stated that legal action would be taken and that if Mrs C no longer required the services of Ms Y and Ms X, that she must follow the correct procedure but remained liable for contractual hours until that was done. Ms X sent a similar e mail demanding unpaid wages within 5 days on 23 February 2023 (page 198). Invitation to grievance hearing and grievance report 9.30. On 22 February 2023, Ms Y was sent a letter from Mrs C inviting her to attend a meeting to discuss her grievances said to have been outlined in a letter of 28 January 2023 (page 246-7) (albeit that Ms Y maintained that she had never in fact intended to raise a grievance in that letter of 28 January). It summarised what Mrs C understood to be Ms Y’s concerns. It informed Ms Y that the meeting would be conducted by an “impartial Consultant from Peninsula Face2Face”. Ms Y informed Mrs C that she would not be attending the appointment and disputed that Peninsula Face2Face could be independent as they had been engaged by Mrs C to advise her and had a conflict of interest (page 252). 9.31. Ms Y did not attend and a meeting proceeded on 27 February 2023 in her absence conducted by Ms M Bowskill of Peninsula Face2 Face. A grievance report was subsequently produced (pages 256-257) by Mr A Leather of Peninsula Face2Face. Ms Y made submissions in writing on 10 March 2023 which were appended to the grievance report. The grievance was not upheld and Mr Leather concluded that a term that Ms Y had to provide transport to and from his home to the Provision had been implied into Ms Y’s contract of employment; that Ms Y had failed to perform these duties and that the AB Trust was right to withhold payment of wages. 9.32. A similar process was undertaken in respect of Ms X (who also disputed that her communications with the respondent amounted to a grievance). She was invited to attend a grievance hearing which was held on 1 March 2023 in her absence, conducted by Ms W Liddard, a Peninsula Face2Face consultant. A report was produced on 13 March 2023 (pages 278-283) which included written submissions from Ms X. The conclusion was that the grievance was not upheld making a finding that the place of work of Ms X was AB’s home and not Mrs Y’s home (largely on the basis of what the written contract that had been seen had provided). The outcome further was that Ms X was correctly treated as absent from work and correctly had her pay withheld. Disciplinary process Ms Y 9.33. On 19 April 2023, Ms Y was invited to attend a disciplinary hearing in respect of allegations of persistent and unexplained absence since 12 January 2023 and failing to respond to a request to contact Mrs C to discuss that absence. A disciplinary hearing was held on 24 April 2023 in Ms Y’s absence conducted by Mr G Pegg, a Peninsula Face2Face consultant. Following this a report was produced by Mr Pegg on 9 May 2023 (pages 268- 277) recommending that the allegations be upheld and Ms Y be issued with a final written warning. This report included a statement quoted from Mrs C about Ms Y’s statement that she was awaiting AB’s arrival at home, namely that Mrs C said “she may or may not have been”. Ms Y appealed against the decision and a letter was sent on 16 June 2023 from Mrs C refusing that appeal (pages 305-6). Disciplinary process and dismissal Ms X 9.34. On 6 April 2023, Ms X was invited to an investigation meeting in respect of absence from work since 12 January 2023 (page 300). She did not attend and was then invited to attend a disciplinary hearing on 19 April 2023 which was held on 21 April 2023 (in her absence as she did not attend). A report was produced on 10 May 2024 by Mr S Bowie (a Peninsula Face2Face consultant) shown at pages 284-294 which recommended that a final written warning be issued for serious misconduct for unauthorised absence. 9.35. On 28 June 2023, Mrs C wrote to Ms X asking her to confirm what her intentions regarding her employment were following Ms Y’s retirement on 30 June 2023 (page 321). Ms X replied the next day to state that she would be “in work as usual” as she had not retired and would be taking over the wage run, all fees and general running of the Provision. On 3 July 2023, Ms C wrote to Ms X (page 322) stating that she required her to attend for work at AB’s home and also was required to work along side a senior carer. It went on to state, “I also note that you have made the decision to make unilateral changes to your contract without any consultation with myself nor have you made any application to make any amendments. I do not agree to any changes to your contractual terms and I expect to see you back at work on Wednesday.” 9.36. Ms X responded on 3 July (pages 323-4), stating that she would be at her place of work (the home of Ms Y) as she had been for every other working day in the previous 12 years, pointing out that she had not attended AB’s home since 2013 for any reason. The letter went on to state Ms Y’s ex husband, Mr Y, had been engaged again to start his hours as a carer as soon as AB returned to the Provision. She went on to dispute that unilateral changes had been made and stated that she had taken over the management of the Provision from Ms Y and was responsible for all decisions around recruitment and planning and had been passed this role by Ms Y on her retirement as the “next experienced body in line”. She went on to state that if Mrs C did not wish to use the service, she had to follow the correct and lawful procedure. 9.37. On 4 July 2023, Ms X was sent a letter by Mrs C (page 325) stating that she was expected to attend work at AB’s residence, stating that it had been Ms X’s “place of work for 11 years”. Mrs C went on to state that Ms X did not have the authority to recruit staff and alleging that Ms X had unilaterally changed her place of work. She stated that she would mark her as absent if she was refusing to attend. It further raised the issue that as Ms X appeared to have discussed AB’s situation with a third party without Mr C’s permission (re the engagement of another employee) that she was required to attend an investigation meeting that next day on 5 July 2023 and that any failure to attend work or the meeting would be treated as misconduct and lead to disciplinary action. A further reply was sent by Ms X (pages 327-9) stating that AB’s home had never been her place of work. She also stated that it was Ms Y who had recruited her ex husband prior to retirement in her capacity as service manager to ensure a smooth handover. She went on to accuse Mrs C of “bullying, harassment, coercion and manipulation” and contended that she had been in work and willing to work on every day since 12 January 2023, at her usual place of work. Ms X stated that she did not feel able to attend any meetings at Mrs C’s home stating that due to the false allegations she felt that it was unsafe for her to attend. 9.38. On 5 July 2023, Mrs C sent a further letter inviting Ms X to a disciplinary hearing to be held on 7 July 2023 (page 330). This was to deal with allegations about persistent and unexplained absence and unauthorised disclosure of confidential information to a third party. Ms X responded on the same date refuting all the allegations (page 331-332) alleging that Mrs C was trying to secure her unlawful dismissal and went on to address the allegations made. Ms X contended that she had been at her place of work since 12 January 2023 awaiting for AB to attend. She also denied that any confidential information had been passed to a third party stating that it was Ms Y who had recruited the new employee before her retirement. Ms X contended that there was no disciplinary case to answer and went on to ask a series of questions about the validity of the purported contract of employment that Mrs C was relying on. She stated that she would be at her place of work as normal awaiting for AB on a daily basis. 9.39. On 7 July 2023 Mrs C wrote a letter to Ms X dismissing her with immediate effect (page 333-4). This letter stated that, “ You failed to attend the meeting on 5th July 2023 and you did not provide a valid reason for your non-attendance. In your letter of 5th July 2023 you have persisted in accusing me of falsifying your employment contract and denying that you have been absent from your place of work being [Mrs C’s home], even though by your own admittance you have been picking [AB] up from [AB’s home] for the last 11 years prior to January 2023. Despite the clear warnings in both letters, and the fact that you are on an active written warning for your non-attendance, I have also taken into consideration your on-going failure to obey my reasonable instructions to attend the meetings amounts to a further act of misconduct.” The letter confirmed that she was entitled to 11 week’s notice and that her employment would end on 7 July 2023. 9.40. The claimant appealed against her dismissal on 11 July 2023 (page 335) primarily alleging that the respondent had produced no evidence to support any of the allegations made. Mrs C wrote to Ms X on 12 July 2023 (page 338) dismissing her appeal confirming, that the original decision taken by Mrs C stands on the basis that Ms X’s employment contract stated her place of work and no further evidence had been provided to mitigate Ms X’s absence from work. 9.41. Following her dismissal, Ms X was out of work until she obtained alternative employment, not in the care sector on 7 January 2024. When challenged Ms X stated that she did not agree it would have been possible for her to find a job in the care sector in the location in which she lived out in the countryside. It does not appear that Ms X sought jobs in the care sector in any event.

The Relevant Law

[10]The relevant sections of the ERA we considered were as follows: Section 1 states that where an employee begins employment, “the employer shall give to the employee a written statement of particulars of employment” and that this “shall be given not later than two months after the beginning of employment”.

[13]Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion. 94. The right (1) An employee has the right not to be unfairly dismissed by his employer. 95. Circumstances in which an employee is dismissed. (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)— (a) the contract under which he is employed is terminated by the employer (whether with or without notice), (b) he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, or] (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct. 98 General (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. 122 Basic award: reductions ….. (4) The amount of the basic award shall be reduced or further reduced by the amount of— (a) any redundancy payment awarded by the tribunal under Part XI in respect of the same dismissal, or (b) any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise). 135 The right. (1) An employer shall pay a redundancy payment to any employee of his if the employee— (a) is dismissed by the employer by reason of redundancy, or (b) is eligible for a redundancy payment by reason of being laid off or kept on short-time. 139 Redundancy (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish. 162 Amount of a redundancy payment. (1) The amount of a redundancy payment shall be calculated by— (a) determining the period, ending with the relevant date, during which the employee has been continuously employed, (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and (c) allowing the appropriate amount for each of those years of employment. (2) In subsection (1)(c) “the appropriate amount” means— (a) one and a half weeks’ pay for a year of employment in which the employee was not below the age of forty-one, (b) one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and (c) half a week’s pay for each year of employment not within paragraph (a) or (b). (3) Where twenty years of employment have been reckoned under subsection (1), no account shall be taken under that subsection of any year of employment earlier than those twenty years. 163 References to employment tribunals]. (1) Any question arising under this Part as to— (a) the right of an employee to a redundancy payment, or (b) the amount of a redundancy payment, shall be referred to and determined by an employment tribunal]. (2) For the purposes of any such reference, an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy. 11. Under section 38 of Employment Act 2002 if an Employment Tribunal makes a finding in favour of an employee in a number of specified claims specified in Schedule 5 to that Acy (including for unfair dismissal and unlawful deduction of wages) whether or not it make an award to the employee in respect of those claims, and in so doing finds that the employer was in breach of its section 1 or 4 ERA duty when the proceedings were begun “the tribunal must…increase the award by the minimum amount [2 week’s pay] and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount [4 week’s pay] instead”. This does not apply if there are “exceptional circumstances which would make an award or increase…..unjust or inequitable”. 12. In the combined appeals of Agarwal v Cardiff University and Tyne & Wear Passenger Transport Executive v Anderson

[2018] EWCA Civ 2084

[2019] IRLR 657

the Court of Appeal affirmed that the employment tribunal can, if necessary, construe and interpret the claimant's contract of employment including identifying any applicable implied terms in determining whether there had been an unlawful deduction from wages. 13. The Moorcock [1889] 14 PD 64 established that a proposed term will be implied if it is necessary to give business efficacy to the contract and Southern Foundries (1926) Ltd v Shirlaw

[1939] 2 KB 206

established the officious bystander test namely that a proposed term will be implied if it is so obvious that, if an officious bystander suggested to the parties that they include it in the contract, "they would testily suppress him with a common 'oh of course'". The Supreme Court held in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Anor

[2015] UKSC 72

that the two tests are not cumulative and only one of the tests needs to be satisfied.

[14]Scally & ors v Southern Health and Social Services Board

[1991] IRLR 522

(HL) - the business efficacy test cannot be used to imply a term which is not necessary to the contract as a whole, even if it is necessary in order to make a part of the contract workable.

[15]The EAT held in Jones v Associated Tunnelling

[1981] IRLR 477

, also stating the overlap between the business efficacy test and the officious bystander test where the contract failed to stipulate the employee's place of work: "it is essential to imply some term into the contract in order to give the contract business efficacy: there must be some term laying down the place of work. In such a case, it seems to us that there is no alternative but for the tribunal or court to imply a term which the parties, if reasonable, would probably have agreed if they had directed their minds to the problem" and "what would the parties have said had an officious bystander asked them 'At what sites can Mr Jones be asked to work?'". The appropriate implied term was the "lowest common denominator of what the parties would have agreed if asked".

[16]North Lanarkshire Council v MacDonald and another

UKEATS/0036/06

, - the officious bystander test cannot be used to imply a variation to a contract after it has been made. If there was no intention that an arrangement was contractual at the time it was entered into, the fact that it became habitual was not sufficient in itself to imply a term into a contract in fact or a variation into an existing contract.

[17]Henry v London General Transport Services Ltd

[2001] IRLR 132

) - to imply a term into an employment contract by ‘custom and practice, that term must be “reasonable, notorious and certain” and must be followed "because there is a sense of legal obligation to do so" - Solectron Scotland Ltd v Roper

[2004] IRLR 4

). In Patel v De Vere Group Ltd [2013] 4WLUK 621, the authorities were reviewed and the High Court confirmed that there must be sufficient evidence to infer that the employer and employee regarded themselves as bound by the practice where the practice is "notorious, certain and reasonable". The mere passage of time (in the context of discretionary benefits) is insufficient of itself to imply a contractual term by custom and practice and the question is whether it could properly be inferred from all the circumstances that it was the subjective intention of the parties that the term should form a term of the contract - Pellowe v Pendragon plc

UKEAT/804/98

[18]If a dismissal is asserted to be on the grounds of conduct, then the test laid down in British Home Stores –v- Burchell

[1978] IRLR 379

requires an employer to show that:-a. it believed the employee was guilty of misconduct;

b. had reasonable grounds to hold that belief;

c. it formed that belief having carried out a reasonable investigation, given the circumstances.

[19]In determining the question of reasonableness it was not for the Tribunal to impose its standards and decide whether the employer should have behaved differently. Instead it had to ask whether “the dismissal lay within the range of conduct which a reasonable employer could have adopted” as set out in the case of Iceland Frozen Foods v Jones

[1982] IRLR 439

[20]The “range of reasonable responses” test applies not only to the actual decision to dismiss, but also to the procedure adopted by the employer in putting the dismissal into effect - Sainsburys Supermarkets Ltd v Hitt

[2003] IRLR 23

[21]The circumstances relevant to assessing whether an employer acted reasonably in its investigations include the gravity of the allegations, and the potential effect on the employee: A v B

[2003] IRLR 405

[22]A fair investigation requires the employer to follow a reasonably fair procedure. Tribunals must take into account any relevant parts of the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and the appeal is to be treated as part and parcel of the dismissal process: Taylor v OCS Group Ltd

[2006] IRLR 613

[23]Tribunals must not put themselves in the position of the employer and consider what they themselves would have done in the circumstances. It must not decide what it would have done if it had been management, but whether the employer acted reasonably. A decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer. — Grundy (Teddington) Ltd v Willis

1976 ICR 323

, QBD; HSBC Bank plc (formerly Midland Bank plc) v Madden

2000 ICR 1283

, CA, .

[24]Impact Recruitment Services Ltd v Korpysa

[2025] EAT 22

, - an employer's genuine but mistaken belief that an employee had resigned can constitute some other substantial reason of a kind such as to justify the dismissal (SOSR).

[25]Polkey v A E Dayton Services Ltd

[1987] IRLR 503

HL, the chances of whether or not the employee would have been retained must be taken into account when calculating the compensation to be paid to the employee. Tribunals are required to take a common-sense approach when assessing whether a Polkey reduction is appropriate - Software 2000 Limited v Andrews

[2007] IRLR 568

; the nature of the exercise is necessarily “broad brush” - Croydon Healthcare Services v Beatt

[2017] IRLR 274

; and the assessment is of what the actual employer would have done had matters been dealt with fairly not how a hypothetical fair employer would have acted (Hill v Governing Body of Great Tey Primary School

[2013] IRLR 274

). Conclusions UNLAWFUL DEDUCTION FROM WAGES

Conclusions

[26]The issues to be determined in relation to the claim for unauthorised deduction from wages are set out at paragraph 1 of the List of Issues above. It is not in dispute that Ms Y and Ms X were not paid from 12 January 2023 (paragraph 9.29 above) until their employment terminated (Ms Y’s on 30 June 2023 and Ms X’s on 7 July 2023). The respondent submits that no pay was properly payable to either Ms Y or Ms X during that period and thus no unauthorised deductions were made. The claimants submit that they were entitled to be paid for the entirety of the period as they attended and were ready for work at all times during this period. Dealing with the position of each claimant in turn: Were wages properly payable to Ms Y from 12 January 2023 until 30 June 2023?

[27]In respect of Ms Y the respondent submits that there was an term implied into the contract of employment of Ms Y that required her to provide transport for AB to and from the Provision. It further submits that when Ms Y failed to provide that transport from 12 January 2023 onwards when her car broke down, she unilaterally breached that term and essentially failed to attend work and comply with the essential terms of her contract of employment. On this basis, it submits that the respondent was lawfully entitled to withhold payment of wages. The claimants contend that no such term was agreed between the parties nor should such a term be implied into the contract of employment. They point to the correspondence that took place around the time of the change to transport arrangements in 2017 (see our findings at paragraph 9.14 to 9.19 above) to evidence the fact that it was never intended that Ms Y be under any obligation to provide transport and this was an entirely separate arrangement to the employment relationship and obligations contained within it.

[28]On this point, we prefer the submissions of the claimants and firstly conclude that there was no express agreement that Ms Y be required to provide transport of AB from his home to the Provision and back as part of the obligations of her employment. The reference to Ms Y’s place of work in the written document purported to be her contract of employment which the respondent relies upon would rather suggest the opposite, albeit that have found that this written document is not the contract of employment issued to Ms Y (see paragraph 9.12 above). The place of work of Ms Y was clearly her home (see paragraph 9.13). We conclude that the provision of transport from AB’s home to Ms Y’s home was an informal arrangement made separately and outside the contract of employment. This was an arrangement made between Ms Y and MCC initially (see paragraph 9.5 above). The arrangement became much looser after July 2017 (see paragraphs 9.14 to paragraph 9.19) but we find that there was never any express agreement (orally or in writing) between Ms Y and the AB Trust that the provision of transport would be a term of her ongoing employment with the AB Trust or as the respondent submits an ‘essential’ term of her employment. The very little correspondence we do have evidencing discussions taking place at the time (paragraphs 9.14 to 9.17) supports this position. The Tribunal concludes that Ms Y agreed to provide transport from 2017 onwards in order to ensure that AB continued to receive the service she felt was in his best interest (and also to protect the ongoing employment of herself, Ms X and others). However we do not conclude that this was provided by virtue of any contractual obligation, rather a sense of duty to AB and the other employees. We accept the submission of the claimants that the arrangement lacked the required consideration to make in a legal and enforceable obligation, given that Ms Y was paid only a sum to go towards the costs of fuel actually incurred when she drove AB. She was not paid any wages for the time spent driving and did this voluntarily to assist AB and Mrs C and to make the Provision less likely to be terminated by Mrs C.

[29]We have considered whether it is possible to imply a term into the contract of employment of Ms Y in fact to reflect the intention of the parties at the time it was made. As set out in the established caselaw on contracts summarised above, a proposed term will be implied if it is necessary to give business efficacy to the contract or if it is so obvious that if an officious bystander suggested to the parties that they include it, it would be so obvious that it goes without saying. It is clear that given Mrs C’s refusal to provide transport to the Provision herself, in order for the Provision to work, some form of transport would need to be put in place. However we conclude that it is not necessary to give business efficacy to the employment of Ms Y, nor would an officious bystander conclude that she must be the one to provide that transport. The employment of Ms Y would still work perfectly well if some other arrangement was in place to transport AB to the Provision. The essential nature of her employment was to provide the care and educational services involved in the Provision at the location known as Green Farm college (her home). How AB arrived at the location where the Provision was carried out and she worked was an entirely separate matter. MCC initially took full responsibility for the transport (see paragraph 9.5 above). Although Mrs C was the one who actually drove AB, it would have made no difference whatsoever if someone else entirely unrelated to the Provision transported AB. It was entirely feasible for MCC and the AB Trust to have engaged a driver separately to drive AB to the Provision. Ms Y was under an obligation to provide transport between 2011 and 2017 not as a result of her contract of employment but as a result of the separate arrangement to provide transport for which she was fully compensated by MCC via the AB Trust.

[30]When the transport provision was removed by MCC, the expectation was that Mrs C would take over responsibility for this (see paragraph 9.15 and 9.17). This did not happen and so the initial arrangement of Ms Y transporting on a short term basis was put in place and this then continued on an informal basis. We have considered whether the fact that this continued for some years after 2017 in some form or another was sufficient to imply a term into the contract of employment of Ms Y by custom and practice, again taking note of the authorities sumarised above. We were satisfied that at no point from 2017 onwards did Ms Y provide transport as a result of an implied contractual obligation. Ms Y did not regard herself as bound by this as obligation and it was not ‘notorious, reasonable or certain’. Rather this was done because of a sense of moral responsibility towards AB and to make it more likely that Mrs C would carry on with the Provision (and thus she and the other employees of the AB Trust would retain their employment). Once again the essential nature of her employment was the work on the Provision with her home being the place of work. That remained the same whether or not she agreed to transport AB or indeed Mrs C made some other arrangements for transport.

[31]Therefore as transporting AB was not an obligation under Ms Y’s contract of employment, when she stopped doing this, it was not a breach of her employment contract. We were also satisfied that from 12 January 2023 onwards, Ms Y was ready and available for work at her place of employment (her home). We refer to our findings of fact at paragraph 9.23; 9.25; 9.27 and 9.28 in this regard. That being so, it was essentially the choice of Mrs C not to put some other arrangement in place to get AB to the Provision when the existing arrangements failed. Ms Y was ready and available to provide the work she agreed to provide under her contract of employment and accordingly wages were properly payable to her. Were wages properly payable to Ms X from 12 January 2023 until 7 July 2023?

[32]In respect of Ms X, the respondent makes a slightly different submission and that is that Ms X was contractually obliged to care for AB at AB’s home address when it was not possible for this to be done at Ms Y’s home as part of the Provision. It also appears to have been the primary submission of course that Ms X’s place of work was in face AB’s address but as we found at paragraph 9.13 above this was not the case. We further concluded that there was no evidence at all to support the contention that the Provision would default in any circumstances to AB’s home which would mean that Ms X was required to travel there to carry out her duties. For very similar reasons as set out above, it is not possible to imply a term into Ms X’s contract of employment on the basis of business efficacy or on the basis of a reasonable bystander test.

[33]It is even more the case that it is not possible to imply such a term on the basis of custom and practice in Ms X’s case. She was not involved in transporting AB at all for the vast majority of the time she was employed. More significantly, she had not worked at AB’s home at all and had not been there since 2013 (see paragraph 9.36). There is nothing to suggest that there was any form of implied agreement that in the event that transport arrangements failed, that Ms X would work at AB’s home. We have considered whether the letters sent to Ms X by Mrs C on 28 June 2023 and 4 July 2023 (see paragraphs 9.35 and 9.37) requesting that she attend for work at AB’s home amounted to a reasonable instruction within the terms of Ms X’s contract of employment, but we were not satisfied that this was the case. Although we found that the contract of employment that the respondent alleged was signed by Ms X could not be relied upon (see paragraph 9.12), we also found that the terms of the template contract were those that the employees of the AB Trust worked to. At paragraph 1.2 of this template contract, which addresses place of work, there is some general wording to state that “when requested” an employee “will work away from the usual place of work either accompanying me or independently of me” (see paragraph 9.6). However on a reasonable construction and interpretation of those words, we conclude that this is largely designed at the requirement of AB’s personal assistants to accompany him on trips away from ‘college’ during the day, rather than giving flexibility to change the fundamental place of work of an employee. It is trite law that any clause that is purported to be a mobility clause is subject to an implied term that this must be exercised reasonable. To change a long standing place of work in that manner with no notice at is unreasonable, and a likely breach of the implied duty of trust and confidence inherent in every contract of employment.

[34]We were also satisfied that from 12 January 2023 onwards, Ms X was ready and available for work at her place of employment (Ms Y’s home home). We refer to our findings of fact at paragraph 9.23; 9.25; 9.27; 9.28 and 9.35-9.38 in this regard. That being so, it was essentially the choice of Mrs C not to put some other arrangement in place to get AB to the Provision when the existing arrangements failed. Ms X was ready and available to provide the work she agreed to provide under her contract of employment and accordingly wages were properly payable to her. How much such each claimant be awarded?

[35]It is not in dispute that neither of the claimants were paid from 12 January 2023 onwards, so on that basis the wages paid to them during this period were less than the wages they should have been paid (issue1.1 ). There was no deduction required or authorised by statute (issue

1.2 ) and no deduction was authorised by a written term of the contract or otherwise in writing (issues 1.3-1.5). The complaints of unauthorised deductions from wages are wellfounded. The respondent made an unauthorised deduction from: (c) the first claimant’s wages in the period 16 February 2023 to 30 June 2023; and (d) the second claimants wages in the period 16 February 2023 to 6 July 2023.

[36]The respondent shall therefore pay:(a) the first claimant £11,647.20; and

(b) the second claimant £12,153.60. The above amounts are the sums claimed by the claimants in their schedules of loss provided (at pages 395 and 396), the calculations within which were not challenged by the respondent. The sums represent the gross sum deducted from pay and will be subject to the payment/deduction of any income tax or National Insurance applicable to such sums. CLAIM FOR A REDUNDANCY PAYMENT

[37]In order to determine whether the second claimant is entitled to be paid a redundancy payment, the first question is to determine whether Ms X was dismissed by reason of redundancy as that term is defined in section 139 ERA as set out above. If there is a question arising as to whether an employee has a right to a redundancy payment, redundancy is presumed to be the reason for dismissal unless the contrary is proved (see section 163 ERA as set out above). Although the respondent contends that Ms X was dismissed by reason of conduct, for the reasons set out below, the Tribunal does not conclude that the respondent has shown that conduct was the reason for dismissal. In any event, we were satisfied that Ms X’s dismissal was wholly or mainly attributable to the fact that Mrs C decided that she would no longer send AB to the Provision on or around 21 January 2024 (see paragraph 9.23 above). Having informed Ms Y on that day that her other son would be taking over the care of AB at AB’s home, there was no longer need for care to be provided by Ms X at Ms Y’s home. In other words, the requirements of the AB Trust for employees to carry out the work of a Personal Assistant in the place where Ms X was employed ceased within the meaning of section 139 (1) (b) (ii) ERA. Ms X was employed as a personal assistant at the home of Ms Y. The requirements of Mrs C and the AB Trust changed with no requirement at all for a personal assistant at Ms Y’s home as AB was not in attendance. The fact that Mrs C and the AB Trust may have still required care and support for AB elsewhere (whether at AB’s home or otherwise) does not alter the fact that this was effectively a ‘place of work’ redundancy with respect to Ms X.

[38]The template contract of employment to which Ms X was working to, clearly also anticipated that if there was no longer a requirement for the services, that redundancy would ensue (see paragraph 9.6 above). Ms Y also notified Mrs C on 23 January 2023, that if the Provision was no longer meeting her needs, the AB Trust and Mrs C could decide to make her and Ms X redundant (see paragraph 9.24). Mrs C at this point suggested that the role carried out by Ms X (and Ms Y and the others) was not redundant but this entirely takes out of the discussion the question of the place of work of the employees. In our view it is the fact that the AB Trust decided it no longer needed employees to work on the Provision at Ms Y’s home (which was at all times their place of work) that triggered a redundancy situation.

[39]We are therefore satisfied that the dismissal of Ms X was in fact by reason of redundancy and she is accordingly entitled to a statutory redundancy payment in the sum of £5,568.75 calculated in accordance with the provisions of section 162 ERA (as set out above). UNFAIR DISMISSAL

[40]As the second claimant is an employee with over two years continuous employment and had the right not to be unfairly dismissed we have gone on to consider this complaint. The first question we must ask ourself was whether the Ms X’s dismissal was for a potentially fair reason within s. 98 ERA (as set out above). The respondent contends that she was dismissed for misconduct. We have firstly considered whether the respondent has shown that the claimant was dismissed for conduct reasons. The respondent relies upon three matters set out at issues 2.2.1 to 2.2.3 above, namely that Ms X revealed confidential information to a work colleague; that she failed to attend a meeting and that she failed to attend work for 5-6 months. The respondent must show that it had a genuine belief that the Ms X had committed misconduct (issue 2.3 above); that it had reasonable grounds for that belief (issue2.4.1 ) and it formed that belief having carried out a reasonable investigation (issue

2.4.2 ) above as per Burchell and other relevant authorities set out above).

[41]We have considered whether the person who implemented Ms X’s dismissal, Mrs C, held a genuine belief that the claimant had committed each of the acts of misconduct. Dealing first with the allegation of failing to attend work. The respondent submits that Mrs C believed that Ms X was contractually obliged to carry out her duties as Personal Assistant at AB’s home when AB was not in attendance at the Provision at Ms Y’s home. It is said that she formed this belief based on the place of work being shown as the ‘employer’s address’ on Ms X’s written contract of employment. This Tribunal’s findings of fact about the reliability of this document are set out at paragraph 9.12 above. However we remind ourselves that we are deciding what the respondent (or Mrs C) believed about the validity of that written contract of employment at the relevant time, not what the Tribunal has found and concluded. We conclude that Mrs C did not genuinely believe at the relevant time that Ms X was contractually obliged to carry out her duties as Personal Assistant at AB’s home and thus had failed to attend work from 12 January 2023 onwards. The discrepancies set out in the various versions of the contract of employment said to be that of Ms X (as set out at paragraph 9.9) in particular the apparent changes to dates shown and the additional of a handwritten comment ‘employer’s address’, together with the fact that Ms X had never worked for the AB trust at any location other than Ms Y’s home (and had not even visited AB’s home since 2013) lead us to conclude that Mrs C did not genuinely hold this belief. This appears to have been something that has arisen during the period when Mrs C was receiving advice and using the services of Peninsula Face2Face to carry out investigations, perhaps based on an external assessment of the position from what Mrs C had told them and documents she had sent them. However we simply do not accept that Mrs C ever believed this to be the true position. In light of this conclusion, the submissions of the respondent’s representative relying on the Korpysa case above that a genuine belief mistakenly held can amount to a fair reason or a dismissal do not assist. We did not accept that Mrs C genuinely believed at the time of dismissal that Ms X’s place of work was AB’s home, so the issue of whether it was held mistakenly does not arise.

[42]Moving on to the alleged breach of confidentiality, we were satisfied that Mrs C genuinely believed that Ms X had discussed personal matters relating to the ongoing care of AB with Mr Y. We refer to our findings of fact at paragraphs 9.36 and 9.37 and conclude that Mrs C reached this belief when she was informed on 3 July 2023 by Ms X that Mr Y “had been engaged” to start his hours as a carer. We accepted that Mrs C concluded that it was Ms X that had re-engaged Mr Y and in order to do so must have discussed the details of AB’s care with Mr Y. Mrs C did not change this belief when Ms X denied that she had done this and indicated that it was Ms Y (not her) who had reengaged Mr Y. However going on to consider whether Mrs C had reasonable grounds for that belief (issue2.4.1 ) and had formed that belief having carried out a reasonable investigation (issue

2.4.2 ), we conclude that in both cases she did not. Mrs C effectively ‘jumped to a conclusion’ that Ms X had both reengaged Mr Y and in doing so had disclosed confidential information about AB to him. The only basis for this was a comment in a letter that Mr Y had been re-engaged. We conclude that no reasonable employer would have concluded from this information that Ms X had breached her obligations of confidentiality. It is also clear that a reasonable employer would have carried out some form of investigation about whether or not what was alleged was correct before reaching such a conclusion. It does not appear that Mrs C took any account at all of Ms X’s denial sent very promptly that she had reengaged Mr Y or her contention that it was Ms Y who had done so. A reasonable employer would have taken further steps to investigate this serious allegation, at least by seeking the view of Ms Y and Mr Y. Mrs C’s failure to do so was in our view outside the range of reasonable responses and the decision that this was an act of misconduct was therefore not something that the respondent had reasonable grounds to believe having followed a reasonable investigation.

[43]In relation to the alleged failure to attend a meeting. This appears to relate to the invitation sent by Mrs C to Ms X on 4 July to attend the investigation meeting scheduled for 5 July 2023 and/or the failure to attend the disciplinary hearing itself on 7 July 2023 (to which Ms X was invited on 5 July 2023) as referenced in our findings at paragraphs 9.37 and 9.38 above. It is clear that Ms X did not attend these meetings and so were satisfied that Mrs C held a genuine belief that this was the case. However, we were not satisfied that that the Mrs C had reasonable grounds for believing that non-attendance to be an act of misconduct having carried out a reasonable investigation. Ms X notified Mrs C on both occasions that she was not planning to attend saying on 4 July 2023 that she did not feel able to attend any meetings due to false allegations making it unsafe (see paragraph 9.37) and due to the fact that AB’s home was not her place of work. We conclude that a reasonable employer would not have concluded that this failure to attend, together with the explanations given gave it reasonable grounds for reaching the conclusion that Ms X had committed an act of misconduct by not attending.

[44]We have gone on to consider whether the respondent acted reasonably in treating the reasons relied upon as a sufficient reason for dismissing Ms X in all the circumstances pursuant to s. 98(4) ERA. We were not satisfied that the respondent had reached the conclusions it did following a reasonable investigation. It does not appear that any alternatives to dismissal were considered. Therefore the dismissal in these circumstances lay outside the range of conduct which a reasonable employer could have adopted in response to the second claimant’s actions.

[45]We have also considered whether the respondent followed a fair procedure taking into account the size of the respondent’s undertaking. This is a small employer and is essentially a vehicle formed to provide for the care and development of an adult son with complex needs by his mother. A form of disciplinary process was followed, as set out in our findings at paragraphs 9.34 to 9.40 above. Ms X was invited to meetings to discuss the allegations, an investigation was carried out externally into the initial allegations of misconduct and Ms X was offered the right to appeal and the ability to bring a colleague or trade union representations. Nonetheless there were procedural failings that put it outside the range of reasonable responses, specifically the failures to properly investigate the later allegations of a breach of confidentiality; the failure to consider any explanations for non attendance and the fundamentally flawed assumption that Ms X’s place of work was AB’s home underpinning the process.

[46]We find, therefore, that the claimant was unfairly dismissed by the respondent within section 98 of the Employment Rights Act 1996.

[47]The respondent does not contend that the claimant’s actions caused or contributed to her dismissal such that no compensation should be awarded, or alternatively that any compensation awarded should be reduced by contributory fault. We do not believe in the circumstances we have outlined above that this is applicable in any event, given that the reason ultimately that led to Ms X’s dismissal was redundancy.

[48]We have however considered whether the claimant would have been fairly dismissed in any event in the very near future such that no compensation should be awarded, alternatively that any compensation awarded should be reduced in accordance with Polkey (see above). On this point we accept the secondary submissions of the respondent that Ms X could have been fairly dismissed on the grounds of redundancy and conclude that had the respondent followed a fair process this could have occurred on or around 30 June 2023 when Ms Y retired. The Provision was run and operated via Ms Y who was responsible for employing staff to work for the AB Trust to carry out the work. On receiving Ms Y’s notice of retirement on or around 13 June 2022 (see paragraph 9.21) that would have been an opportunity for Mrs C and the AB Trust to consider whether they wanted the Provision to continue in the form it did and if not (because the transport was becoming a problem) to have put in place alternative arrangements. Had Ms Y’s car not broken down in January 2023, that process of discussion may have in fact taken place (and we consider is likely to have taken place).

[49]Indeed once Ms Y was unable to continue to transport AB to the Provision in January 2023, Mrs C again had the opportunity to conclude that the Provision was no longer suitable for her and AB’s needs (as she was unable to transport AB to it). This would have meant that the requirement for the respondent to employ Ms Y, Ms X and others at their place of work (Ms Y’s home) had ceased triggering a redundancy situation. Allowing for consultation, working of notice and time to make alternative arrangements, Ms X could have been fairly dismissed within a relatively short period of time. We therefore conclude that the respondent could have fairly dismissed Ms X certainly no later than 30 June 2025 and indeed may have been able to do this sooner. REMEDY FOR UNFAIR DISMISSAL

[50]Ms X does not seek reinstatement or reengagement so we did not need to consider issues 3.1 to 3.5 above. We have firstly considered whether there should be a compensatory award and how much this should be (issue 3.6). In light of our conclusions above that Ms X could have been fairly dismissed by 30 June 2025 i.e earlier than the date she was actually dismissed and in light of the fact that she was also paid a sum in relation to 11 week’s notice pay following her dismissal on 7 July 2025, we have determined that Ms X should not be awarded anything in relation to loss of earnings following her dismissal on 7 July 2025. We make an award of £1,000 in respect of the loss of statutory rights of Ms X as a result of her dismissal (the calculation of such sum was not disputed).

[51]We have considered whether the ACAS Code of Practice on Disciplinary and Grievance Procedures applied, whether the respondent or the claimant unreasonably fail to comply with it and whether it was just and equitable to increase or decrease any award payable to the claimant, up to 25% (issues 3.6.6 to 3.6.8). The ACAS Code clearly applied to the dismissal of Ms X which was purported to be on the grounds of misconduct and to the various investigations that the respondent carried out. The claimants do not point out any particular breaches of the ACAS Code that would require consideration of an uplift. The respondent submits that it complied in all material respects with the requirements of the ACAS Code in the way in conducting thorough investigations into the matters arising with Ms X and points to the numerous steps it took between April and July 2023 before Ms X was dismissed (see paragraphs 9.34 to 9.40). It does not contend any failure on the part of the claimants to comply with the ACAS Code. We conclude that the flaws highlighted above particularly around Ms X’s dismissal relate rather to the substance of what the various investigations concluded and the conclusions reached by the respondent which led to Ms X’s dismissal, rather than inherent procedural flaws relating to a failure to follow the structure of the ACAS Code or its basic tenets. We therefore do not find any unreasonable failures and conclude that it is therefore not just and equitable to increased or decrease any award payable to the claimant.

[52]We have gone on to consider whether any basic award is payable to the claimant. However as we have awarded Ms X a statutory redundancy payment above, section 122 (4) (a) ERA applies and the amount of any basic award is reduced to nil.

[53]Finally we have had to consider whether when the proceedings were begun the respondent was in breach of its duty to provide the claimants with a written statement of employment particulars. We refer to our findings of fact at paragraph 9.12 above that the claimants were not issued with contracts of employment as alleged. The respondent was therefore in breach of its duty under section 1 ERA. There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. The respondent submits that given that it is a trust set up to provide care for AB and not a commercial enterprise, a lower award of only 2 weeks pay would be appropriate. However we conclude that it just and equitable to make an award of an amount equal to four weeks’ gross pay. In accordance with section 38 Employment Act 2002 the respondent shall therefore pay the first claimant £2,025.60 and the second claimant £2,025.60, representing four weeks gross pay. We conclude this because it is clear that the respondent had access to template contracts and the ability to produce such contracts and send them to employees (see paragraph 9.8) but for some reason that remains unexplained, this was not done on a regular basis. We were not satisfied that this was done in respect of the two claimants. The respondent clearly understood the need for contracts of employment and cannot really explain what happened in relation to the issuing of contracts to these employees. On this basis we make the higher award of four weeks’ pay to each of the claimants.