The claimant’s claims of unfair dismissal and wrongful dismissal are well founded and succeed.
REASONS
[1]The claimant brings claims of constructive unfair dismissal and wrongful dismissal against his former employer, Royal Mail Group Limited. The respondent contends that the claimant resigned, there was no dismissal, and in any event its actions were fair and reasonable.[2]The claimant’s ET1 also contains a claim for disability and age discrimination. This was dismissed on withdrawal on 12 February 2024.[3]The claimant was employed by the respondent from 30 May 2002 to 5 May 2023 as an operational postal grade.[4]The claimant started the ACAS early conciliation process on 3 July 2023. The ACAS certificate was issued on 14 August 2023. The ET1 was presented in time. No issue in relation to time was raised at the hearing.
The hearing
[5]The hearing took place by way of video hearing with both parties joining remotely. The claimant was represented by counsel, Mr Probert, and the respondent was represented by solicitor, Mr Brown.[6]I was assisted by a bundle of 131 pages. I was also provided with two witness statements. One from the claimant, and one from Ms HeatonProuse, the witness for the respondent. Further, I was provided with an agreed list of issues, a schedule of loss, and the claimants skeleton argument.
Facts
[7]Both the claimant and Ms Heaton-Prouse gave evidence and were cross examined.[8]In reaching my decision, I have carefully considered the oral and documentary evidence and the closing submissions. The fact that I may not have referred to a document in the bundle does not mean that I have not considered it.
Issues
[9]The parties provided an agreed statement of issues as follows, Unfair dismissal
Issues
[1]Did the Respondent do the following things:a. Accuse the Claimant of malingering while being absent from employment on the grounds of ill health.b. On 28th April, demand that the Claimant return to work the next day (29th April 2023) and threatened to not pay the Claimant sick pay if he did not do so.c. On 28th April, determining, without due process or medical evidence, that the Claimant was in breach of the Respondent’s sick pay rules and was not entitled to sick pay.[2]Did any one, or all of these, breach the implied term of trust and confidence? The Tribunal will need to decide:a. Whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; andb. Whether it had reasonable and proper cause for doing so.[3]Did the Claimant resign in response to the breach (or breaches)?[4]The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation. Remedy for Unfair Dismissal[5]If there is a Compensatory Award, how much should it be? The Tribunal will decide:a. What financial losses has the dismissal caused the Claimant?b. Was the Claimant taken reasonable steps to replace his lost earnings, for example by looking for another job?c. If not, for what period of loss should the Claimant be compensated?d. 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?e. If so, should the Claimant’s compensation be reduced? By how much?f. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?g. Did the respondent or the claimant unreasonably fail to comply with it?h. If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?i. If the Claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?j. If so, would it be just and equitable to reduce the claimant’s Compensatory Award? By what proportion?[6]What Basic Award is payable to the Claimant, if any? a. 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? Facts The following matters were not disputed.[8]It was not disputed that two categories of documentary evidence from the respondent were absent. Firstly, there were no notes taken of the meetings with the claimant. Secondly, Ms Heaton-Prouse accepted that having received a photograph of the claimant on Facebook Messenger, she emailed the photo to herself. She then deleted the original message and photograph from Facebook. She stated that she did not think the original message would be needed.[9]The claimant was employed by the respondent as an operational postal grade (postal worker) from 30 May 2002 until 5 May 2023. The claimants job included lifting, carrying, and driving as a postal worker.[10]In April 2021, July 2022, and January 2023, the respondent conducted absence reviews with the claimant. The claimant was subject to a stage two absence review (AR2) due to his previous absences.[11]On 17 April 2023, the claimant called in sick owing to an arm injury. This further period of absence would have triggered the third stage of the respondent’s absence policy (AR3). This stage of the policy could have led to the claimant being dismissed. The claimant self-certified his absence for the week from 17 April 2023. A sick note dated 24 April 2023 was provided by the claimants GP. This stated that the claimant was not fit for work for the period 24 April to 1 May 2023. The sick note stated, “arm injury.” Subsequent medical notes recorded the diagnosis as a rotary cuff injury.[12]Ms Heaton-Prouse is an experienced manager who is aware of the policies and procedures of the respondent.[13]A face to face conversation took place between the claimant and Ms Heaton-Prouse on 27 April 2023. The claimant indicated that he did not think he would be able to return to work anytime soon. During this meeting, the claimant’s arm was in a sling.[14]Following this meeting the claimant went to the osteopath. He was advised that having his arm in a sling was not helping. This was not challenged by the respondent.[15]Later on 27 April 2023, Ms Heaton-Prouse received a photograph of the claimant in a pub without his arm in a sling. The photograph was sent by Facebook Messenger. The photograph showed the claimant holding his mobile phone in both hands. A message accompanying the photograph stated that the claimant had been playing darts.[16]Having received the photograph and the message, Ms Heaton-Prouse contacted her line manager Stuart Sugden. Mr Sugden told her to get the claimant in for a meeting as soon as possible. Mr Sugden told Ms Heaton-Prouse to tell the claimant that he had to return to work the next day, or his pay would be docked. This was the evidence of Ms HeatonProuse. It was not challenged by the respondent.[17]On 28 April 2023, the claimant attended a face to face meeting with Ms Heaton-Prouse. During the meeting, the claimant accepted that he had been in the pub on 27 April 2023. He said he had not been playing darts and had not played darts for years. He also accepted that he had not been wearing a sling as he was following advice given by the osteopath earlier that day.[18]Ms Heaton-Prouse told the claimant during the meeting that he would have to come back to work the next day and if he did not, then his sick pay would be stopped. The claimant immediately tendered his verbal resignation. He followed this with his written resignation on 29 April 2023. He gave one weeks’ notice to the respondent.[19]Ms Heaton-Prouse stated that she had followed the instructions of Mr Sugden. She agreed that she was aware of the relevant policies and procedures and the availability of the HR team. However, she did not refer to any of those resources prior to the meeting with the claimant on 28 April 2023. She relied on the decision made by Mr Sugden.[20]The claimant lodged a written grievance on 2 May 2023. The respondent did not address this grievance.[21]The claimant provided a further fit note that he remained unfit for work between 2 May 2023 and 9 May 2023.[22]Mr Sugden did not provide a witness statement and was not before the tribunal. His existence and involvement only became apparent during the cross examination of Ms Heaton-Prouse.
Findings of Fact
[23]I made the following findings of fact on the balance of probabilities.[24]By the 27 April 2023, the claimant had reached the threshold at which the next stage of the attendance policy would be triggered. I accept the evidence of the claimant that he was unaware of this at the time. The respondent had not informed him of this by the time of the final meeting with Ms Heaton-Prouse.[25]Ms Heaton-Prouse accepted in cross examination that she had told the claimant she did not believe his sickness was genuine and therefore he would not be getting sick pay. I find that the respondent did accuse the claimant of malingering, based on the evidence of Ms Heaton-Prouse. Malingering in the context of this claim is an accusation of dishonesty because the essence is that the sickness was not genuine.[26]Ms Heaton-Prouse accepted in cross examination that she had told the claimant that he must return to work, or he would not be paid sick pay. I find that the respondent did this, based on the evidence of Ms HeatonProuse. Ms Heaton-Prouse agreed that an injury to the claimant’s arm would affect his ability to do his job. She further accepted that being in pain at work would make it difficult to even undertake lighter duties. I find that there was no discussion about the claimant returning on lighter duties. Ms Heaton-Prouse had been told by her manager to tell the claimant to return to work or lose his sick pay. This is what she did. Ms Heaton-Prouse accepted that she did not have an opportunity to speak to the claimant about next steps or lighter duties.[27]The respondent had already decided, prior to the meeting on 28 April 2023 that the claimant’s sickness was not genuine. Ms Heaton-Prouse’s evidence was that she was acting on the instructions of her line manager Mr Sugden who had made a decision about the claimant’s absence not being genuine.[28]This decision was based on a deleted Facebook message and a photograph, with no other investigations or enquiries. The meeting on the 28 April 2023 was less than twenty four hours after the message and photograph had been received. I find that there was no due process and the available medical evidence clearly stated that the claimant was unfit for work. There was no medical evidence to the contrary.[29]It was reasonable for the respondent to have a conversation with the claimant based on the photograph. It was not reasonable for the respondent to have already determined how to proceed. The respondent had pre-determined that the claimant was in breach of the respondent’s sick pay rules. The Law Constructive dismissal
The Law
[30]The claimant claims he was constructively dismissed. He resigned following, he says, acts or omissions by the respondent which, he says, amounted to a breach of the implied term of trust and confidence.[31]Section 95(1) of the Employment Rights Act 1996 (ERA) states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct. This form of dismissal is generally referred to as ‘constructive dismissal’ and is in contractual terms, a discharge by breach.[32]The best known summary of the applicable test for a claim of constructive unfair dismissal was provided by Lord Denning MR in Western Excavating (ECC) Limited v Sharp [1978] IRLR 27.[33]There are four conditions that I must consider, 1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach. 2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify them leaving. 3) They must leave in response to the breach and not for some other, unconnected reason. 4) They must not delay too long in terminating the contract in response to the employer's breach, otherwise they may be deemed to have waived the breach and agreed to vary the contract.[34]In Tullett Prebon PLC and Ors v BGC Brokers LP and Ors Maurice Kay LJ endorsed the following legal test: “… whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”[35]I have reminded myself that the breach must be by the employer. This can include the conduct of a line manager as binding on the employer provided the supervisor is acting in the course of his or her employment (Hilton International Hotels (UK) Ltd v Protopapa [1990] IRLR 316.[36]It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see Malik v Bank of Credit and Commerce International SA [1998] AC 20.[37]Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, see Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 CA; the very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship.[38]The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik, the conduct relied on as constituting the breach must: “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.”[39]In addition, it is also clear from Hilton v Shiner Ltd that even where there is conduct which objectively could be said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties, if there is reasonable and proper cause for the same then there is no fundamental breach of contract. I have reminded myself that I need to consider both elements of reasonable and proper cause.[40]I was referred to the case of Rigby v Ferodo Limited [1987] IRLR 516, [1988] ICR 29, HL. I have reminded myself that this case is authority for the proposition that a decision to cut or reduce an employee’s wages will in most cases amount to a repudiatory breach. Wrongful dismissal[41]Wrongful dismissal is a common law contractual claim. The Tribunal has jurisdiction to consider complaints of wrongful dismissal, by virtue of articles 3 and 4 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, arising or outstanding on the termination of employment.[42]If an employee is dismissed without full notice or money in lieu of notice, he or she will have been wrongfully dismissed unless they are in repudiatory breach of contract.
Discussion
[43]I noted that the statement of Ms Heaton-Prouse was somewhat different from the evidence she gave orally at the hearing. My view was that the evidence she gave before me was her honest recollection of events. I also formed the view that she answered questions honestly, even if this was to the detriment of the respondent.[44]A key part of the postal workers job is that they are honest. They are entrusted to handle valuable and personal items every day. To accuse the claimant of not being genuine in his absence from work is clearly an assault on his honesty. Honesty is fundamental to the contract of employment and therefore the accusation is a repudiatory breach. I have found that the respondent accused the claimant of not being genuine in relation to his sickness. The respondent accepts that this accusation was made. This is an accusation of dishonesty.[45]The respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent. It is clear that the accusation that the claimant was off work sick when he should not have been, was likely to destroy or seriously damage the implied term of trust and confidence between the parties.[46]I also conclude that the decision to stop the claimant’s sick pay if he did not return to work the next day, was a repudiatory breach in the circumstances. There was no consideration of the circumstances beyond the receipt of the photograph. There was no consideration of the note from the doctor that confirmed the claimant was not fit for work.[47]There is no evidence that the respondent had reasonable and proper cause to act as it did, to destroy or seriously damage the trust and confidence between the parties.[48]It is remarkable that the respondent acted as it did. The claimant had valid fit notes that set out the reason for his absence. If he was at risk of being dismissed due to a history of poor attendance, this was even more reason for the respondent to act in a measured way, observing due process, gathering evidence, and acting in a considered manner. Ms Heaton-Prouse knew that, before confirming that someone has committed a disciplinary offence, there has to be a fair and full investigation. There was no investigation here. The respondent decided that the claimant was not genuinely sick purely on the basis of a Facebook Message and photograph. Ms Heaton-Prouse accepted that the only available evidence against the claimant was the photograph. She had deleted the message without anyone else seeing it, she accepted that the claimant had not been playing darts, and she accepted that the osteopath had advised the claimant not to wear a sling.[49]The respondent acted in a cavalier manner. The original message was deleted, no notes were taken, the instructions given by Mr Sugden only came to light during the cross examination of Ms Heaton-Prouse. There was no evidence that Mr Sugden had seen the photograph, and in any event, the photograph does nothing to alter the existence of a valid sick note. Mr Sugden was not a witness for the respondent and his involvement was not known until Ms Heaton-Prouse mentioned it in cross examination. I accept Ms Heaton-Prouse’s evidence that she told the claimant she did not believe his sickness was genuine and therefore he would not be getting any sick pay. Ms Heaton-Prouse accepted that the statement about removal of the sick pay felt like a threat to the claimant, but that the decision had already been made by Mr Sugden.[50]Ms Heaton-Prouse did not take notes of the meetings she had with the claimant. The respondent was willing to act on the basis of one photograph while disregarding the medical evidence that was available in the fit notes.[51]The accusation of dishonesty in the form of malingering was levelled in circumstances that show that the respondent did not follow its own policies, investigate, or seek any further evidence. The lack of consideration by the respondent indicates that there was a failure to consider or follow the ACAS Code of Practice.[52]Having considered the respondent’s contention that there was reasonable and proper cause I have carefully weighed both elements and cannot find that this contention has any basis. Ms Heaton-Prouse accepted that when talking about a postal worker being dishonest, it goes to the very heart of the contract.[53]It is readily apparent from the evidence that the claimant resigned as a response to the breach by the respondent. His verbal resignation was immediate, and this was followed up the next day by his written resignation.[54]There was no evidence that the claimant was going to leave his employment for any other reason. He had worked for the respondent for twenty one years. There was no evidence that he resigned because he thought he may be dismissed on the grounds of his absence record. I find that his resignation was due to the breach by the respondent.[55]I found no evidence that the respondent intended to dismiss the claimant for another reason. The further period of absence that began on 17 April 2023 would have triggered the next stage of the attendance policy, nothing more. I do not find any evidence that the claimant anticipated being dismissed.[56]The claimant resigned promptly and there is no question of affirmation of the contract. The respondent does not assert that there was any affirmation.[57]I find that the breach of contract was a reason for the claimant’s resignation. The breach of contract by the respondent was not a minor one. To accuse a person in a position of trust, of not being truthful is a repudiatory breach of the implied term of trust and confidence. I find that the claimant was genuinely unfit for work. I make this finding based on the fit notes, the evidence of the claimant, and the absence of any evidence to the contrary. A single photograph of the claimant in a pub, and a Facebook message, is not sufficient evidence for the respondent to act as it did. Accordingly, I find that it was appropriate for the claimant to treat the actions of the respondent as repudiatory and to resign as he did.[58]The claim of wrongful dismissal is well founded and succeeds as the claimant was wrongfully dismissed and not paid the notice pay that he was entitled to.[59]The respondent has not shown any fundamental breach of the contract by the claimant such as would have allowed the respondent to treat the contract as terminated. The respondent predetermined the outcome of the meeting between the claimant and Ms Heaton-Prouse. There was no fair process.[60]The claimant was entitled to payment in lieu of notice (PILON) upon termination of his contract by the respondent.[61]The claims are successful.[62]The case will be listed for a remedy hearing. The parties must contact the tribunal to vacate that hearing if they reach a settlement. A separate case management order will be sent to the parties.