Mrs L Kelly v Nandos Chickenland Ltd: 1600565/2017

EMPLOYMENT TRIBUNALS

Case No 1600565/2017

Between

Mrs L KellyClaimant

Nandos Chickenland LtdRespondent

Before

Employment Judge Mr M Emery

Date 11 April 2019

REASONS

[1]The claimant alleges constructive unfair dismissal and s.20 Equality Act 2010 discrimination - a failure by the respondent to make reasonable adjustments. The issues to be determined at this Preliminary Hearing are as follows:a. Whether all or any of the claimant’s claims are out of time, and if so whether time should be extended on any of them;

b. Whether all or any of the claims should be struck out has having no reasonable prospects of success, and/or a deposit ordered as a condition of being permitted to proceed with all or any of them on the ground that they have little reasonable prospects of success.

[2]The Hearing was held on an ‘ELIPs day’, and the parties were delayed while ELIPs representative Mr Woodhead dealt with other cases. The Hearing commenced early afternoon, and the Tribunal records its gratitude for the forbearance shown by the parties and their representatives, and for Mr Woodhead’s work on this matter.

[3]The respondent has conceded that the claimant was a disabled person by reason of depressive illness during the material period of this claim. During submissions Mr Difelice for the respondent conceded that two of the eight by the reasonable adjustments are ‘arguable’ and he did not pursue a strike-out or a deposit order in relation to these claims. During closing submissions, Mr Difelice further conceded that, in light of the respondent’s earlier concessions, he would not be pursuing strike-out or deposit order on the remainder of the disability discrimination claims. Witnesses

[4]I heard evidence from the claimant and her husband, Mr Dan Kelly. Prior to the hearing starting I read the papers and the bundle prepared by the respondent’s representatives. Were the claims brought in time?

[5]The parties agreed that there were two limitation periods to calculate as the claimant has brought claims for disability discrimination at work and unfair dismissal. The claimant contacted ACAS on 24 March 2017 to register a complaint under the ACAS early conciliation process. She resigned her employment on 3 April 2017, the primary limitation period for her claims expired on 2 July 2017. The claimant is arguing that the alleged failure to make reasonable adjustments continued to the date of her resignation. The ACAS Conciliation Certificate was issued on 24 April 2017. The claimant submitted her claim on 6 August 2017.

[6]The parties agreed that the whole of the ACAS Conciliation period could be used to calculate the limitation period for the in-work disability discrimination claims. The limitation period calculation is therefore: Day A – 24 March A+1 – 25 March Day B 24 April A+1 - B = 31 days Adding 31 days to the primary limitation period gives a claim deadline of 2 August 2017. The disability discrimination claim was therefore issued out of time.

[7]Given the cause of action for her claim of unfair dismissal did not commence until the day of her resignation, and taking into account the case of Tanveer, the limitation period is therefore: Day A – 24 March A+1 – 25 March Day B 24 April A+1 - B = 31 days less 9 days (25/3- 2/4 incl.) = 22 days The primary limitation period ended on 2 July 2017; plus 22 days gives an extended limitation period to 24 July 2017. The claim was issued on 6 August 2017 and is therefore out of time. Application to extend time

[8]On behalf of the claimant an application to extend time was made: in relation to her disability discrimination claims was an application for an extension of time on a “just and equitable” basis; on her unfair dismissal claim the claimant sought an extension of time on the basis that it was not reasonably practicable for her to submit her claim in time.

[9]Mr Kelly gave evidence as to his wife’s health, that following her dismissal he was “really struggling” between his work, looking after his three young children, and his worries for his wife’s safety; he was having to make sure she took her medication, he would have to prepare her pill-box and at times look after her, including preparing her meals. At times, she could not leave the house. He says his employer was understanding, he was also working overtime because of money issues.

[10]The claimant’s medical records show she has suffered from a long-term depressive illness including acute episodes of ill-health. The claimant said that her overriding concern following her resignation was her health and ensuring that her children were not taken away from her. For the purposes of this Hearing I considered the claimant’s disability impact statement, and I noted that its contents were consistent with the claimant and her husband’s evidence. I noted also the medical evidence and this was also consistent in the main with this evidence. There was one entry on her GPs noted dated 16 May 2017 which states the claimant “feels may be ready for work now husband disagrees.” t this time the records show that the claimant had also reduced her medication, while there is evidence that this was a temporary change; a month later she was experiencing several symptoms consistent, said her GP, with a quick withdrawal from medication and she was advised to increase her dose. It is apparent that throughout the period after dismissal and before she submitted her claim, the claimant was suffering from very significant ill-health.

[11]Mr Kelly says that on 28 July he posted a handwritten employment tribunal claim form to Cardiff Employment Tribunal, this was received at Cardiff ET on 1 August 2018. He was unaware that it should have been sent to Leicester; he called the tribunal and was told the claim could not be accepted and he completed the on-line form as soon as he could after this call. Mr Kelly and his wife sought advice at a pro-bono centre in Cardiff, the nearest free advice centre, and received two appointments with 20 minute appointments. He received some advice on the claim but he could not recall receiving any advice on time-limits. He could not afford to take advice from elsewhere. The claimant gave similar evidence.

[12]On being questioned why he did not find time to bring the claim after the ACAS Certificate, his evidence was “This is [the claimant’s] case. I can't pluck words from her mouth if she’s unable to speak. It causes a lot of distress with my wife as soon as it’s mentioned as an issue. He said that the “first opportunity” to put in the claim was the handwritten application as this was the “first time she is able to talk through it.”, and only a couple of days later he was, he said, chasing this application with the Cardiff ET. I accepted Mr Kelly’s account of the difficulty the claimant had even communicating about the case. Whether the claim unfair dismissal claim has any prospect, or any reasonable prospect of success

[13]At the time of her dismissal, the claimant was facing a disciplinary process relating to several incidents of inappropriate behaviour of a sexual nature towards staff members (mandocas) at events after work, leading them to feel uncomfortable in work, especially given her role and responsibilities. On 6 February 2017, she was told she was to attend an investigation meeting and she was written to on 7 February confirming her suspension. In the subsequent disciplinary invitation letter these incidents were stated to be incidents of alleged gross misconduct as the incidents could be deemed harassment of a sexual nature. On 5 March 2017, on the evening before the disciplinary hearing, the claimant resigned, citing “accusations made by other employees have made my position untenable”. She cites the length of the process and that 15 staff members were interviewed yet only 6 sets of interview notes were given to her. She says she considered herself constructively dismissed (page 56).

[14]The claimant’s medical records show she received repeat prescriptions for depression medication throughout 2016 and into 2017; she was prescribed sertraline 100mg tables twice a day. She was also prescribed diazepam and was receiving cognitive analytic therapy.

[15]In her evidence to tribunal, the claimant stated that the reasons for dismissal were not just those in her email of resignation, she said there was “… also massive health and safety issues - fabrication of dates, fridge stuff being left on dry stores. Buns placed under meat, no hairnets.” The claimant said that she had “organised a meeting with general manager. I asked for a meeting. I was due to start work at 4.00 - she said come in for meeting. She said I was suspended.” The claimant believes that she has retained details of these concerns in text messages. Submissions:

[16]For the respondent, Mr Difelice argued the claimant had time to submit her claim; she had been able to submit a detailed grievance and attend a grievance meeting; she was in a position to explain herself. When I asked whether her health had worsened post-dismissal, Mr Difelice argued that medical records (page 39) showed that there were periods she was feeling better; there were “windows of opportunities” for the claimant. Mr Difelice questioned how it became so “difficult for her to talk about the case”. She was able to visit the advice centre; if it’s possible to talk, and she could frame the basis of a claim form, he argued.

[17]On the issue of bad advice, Mr Difelice argued we did not know the advice given, but there was no good reason for the claim being out of time.

[18]Mr Difelice accepted that there was greater discretion on the tribunal on the reasonable adjustments extension of time application. The reason for the delay was not ill-health of the claimant, there was the possibility of taking action earlier, but the claimant delated issuing until August. While the claimant had taken some steps to get advice, the steps taken were not enough. A prudent claimant would take some steps to find out knowledge of the time limit.

[19]On the strike-out/deposit order applications: Mr Difelice argued that page 56 set out the reasons for resignation, and they were clearly not related to an allegation of breach of trust and confidence by the employer. On the claimant’s evidence today, she is adding layers. However, Mr Difelice accepted that the allegation that witness statements had been withheld, who were perhaps witnesses in her favour, was a “serious allegation”.

[20]On the reasonable adjustments strike out/deposit applications, Mr Difelice accepted that because some claims were potentially arguable, he would not pursue an application on this claim.

[21]For the claimant, Mr Woodhead (and on occasion Mr Kelly) argued that the fact is the claimant could not reasonably practicably submit a claim: the evidence was she had difficulty speaking, her health was poor. While she did seek advice, the claimant was not capable of putting claim in; for example after visiting the advice centre in Cardiff the claimant was unable to talk about her case. Mr Kelly referred to his dated laptop, that he could not fill the forms in on-line, he printed them off and filled them in.

[22]Mr Woodhead referred to University Hospitals Bristol NHS Foundation Trust v Williams

UKEAT/0291/12

, where the EAT accepted that serious mental health difficulties, overlaid with other difficulties in her life, meant it was not reasonably practicable for her to submit her claim in time.

[23]On the deposit and strike-out applications, Mr Woodhead argued that full evidence was clearly required for both claims. He accepted that the claimant’s letter of dismissal did not reference her claims on health and safety issues, but he argued that there was a possibility that the statements withheld may contain evidence; that in any event the claimant’s lack of confidence in her disciplinary was linked to her lack of confidence in her employer; that this in itself could be a repudiatory breach.

The Law

[24]Employment Rights Act s.111Complaints to employment tribunal.(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer

(2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. s. 123 Time limits (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

[25]Employment Tribunal Rules of Procedure 2013 Striking out 37.(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; Deposit orders 39. (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.

(3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.

(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.

(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. The Tribunal’s conclusions on the facts and law Extension of time Was it reasonably practicable for the claimant to present her unfair dismissal claim within the time limit?

[26]I accepted the following evidence: the claimant suffered from serious mental ill-health of the claimant throughout limitation period; she consequently had an inability to properly think about her dismissal, an issue which was causing her significant distress; the families difficulties with coping generally; Mr Kelly’s additional hours at work and his caring responsibilities; the fact that the claimant and her husband took steps, when the claimant was able, to find out about her rights; that she appears to have received at best sketchy advice at the advice centre in limited appointments. I considered that all these issues, taken together, meant it was not reasonably practicable for her to submit her claim in time. The claimant and her families were facing overwhelming difficulties, the family did what it could to progress issues, when she was able. Did the claimant submit her claim within a reasonable further period?

[27]I considered whether the claim was submitted with a reasonable period after the time limit expired. I determined yes; I accepted that the claimant’s husband was relying on at best very sketchy advice, that when being advised in very short appointments at an advice centre he had not received advice on time limits, that when he became aware of time limits he acted with due urgency to submit his claim (on old and inadequate computer equipment and with poor computer and internet skills) that he chased Cardiff ET about his claim with reasonable speed, and when he found out he had submitted it wrongly to Cardiff he made an on-line application immediately. Is it just and equitable to extend time for the discrimination claim?

[28]I considered that the length of the delay was short, four days, and that there were good reasons for the delay, set out above. I did not consider that this short delay would cause difficulties with the parties’ case, and that the claimant acted promptly when she realised what the time-limits were. Strike-out application

[29]I considered whether, on the arguments and evidence I heard, whether there were no reasonable prospects of the claim succeeding. I noted that the test for the respondent in this case was a high one and should only be exercised “very exceptionally” Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

[30]I considered whether the facts as alleged by the claimant disclosed no arguable case in law. I noted that the claimant was alleging witness statements had been withheld in the disciplinary process, which was one of her allegations on dismissal. I also noted that (while it was disputed this was a reason for her resignation) the clamant alleged she raised serious health and safety issues, and has evidence of this. For these reasons, I considered it could not be said that the allegations disclosed no arguable case in law, and for these reasons the respondent’s application fails. Deposit Order

[31]Does the unfair dismissal claim have little reasonable prospects of success? I accepted that the test is not as high as a strike-out application (Van Rensburg v Royal Borough of Kingston-Upon-Thames and others

UKEAT/0096/07

;

UKEAT/0095/07

), but, at the same time a deposit order may be a significant deterrent to bringing a claim, and I accepted that a careful and caution approach is required before ordering a deposit. I noted that the claimant’s evidence was that evidence had been withheld; also, that the process was unfair. I noted that the respondent was aware of the claimant’s medical issues and I noted that there may be arguments on the fairness of the process adopted which impacted on the claimant’s decision to resign.

[32]The claimant also says she raised serious health and safety issues and has evidence of this, and this was a factor in her dismissal. There was no evidence in front of me that the claimant had raised such issues, and less evidence that this was a factor in her dismissal. It may well be that this element of her constructive dismissal claim stands little reasonable prospects of success, however I felt I could not separate out this allegation from the other reasons she gives for her resignation, in particular withholding of evidence, and I could not say that the claim overall stands little prospects. I agreed with the respondent that an allegation of withholding evidence is serious, but if there were significant numbers of witnesses interviewed whose notes were not disclosed to the claimant, I considered that she may have an argument on this part of her claim. For these reasons, the respondent’s application for a deposit Order does not succeed. Judgment sent to the parties On ………11 September 2018………

The Law

[1]The claimant’s claim for unfair dismissal is dismissed.

[2]The claimant’s claims of disability discrimination in the failure to make reasonable adjustments pursuant to s20 Equality Act 2010 are dismissed. ---1---

The Law

[1]This is the decision of the tribunal in the case of Mrs L Kelly v Nando’s Chickenland Ltd. By this claim the claimant brings claims of constructive unfair dismissal and disability discrimination. All of the disability discrimination claims are claims of a failure to make reasonable adjustments contrary to s 20(3) Equality Act 2010. It is not in dispute that at all relevant times the claimant was a disabled person within the meaning of s6 Equality Act 2010 by reason of the condition of depression and anxiety.

[2]The respondent is a well-known chain of restaurants and the claimant was employed as a supervisor in the Swansea restaurant from 15 February 2013 until 3rd April 2017 when notice she had given on 5th March 2017 expired. The General Manager of the restaurant (known within Nando’s as the Patrao) was Tina Kelly, the claimant’s sister in law. She went on maternity leave on 28th August 2016 at which point Mr Matthew James became the Acting General Manager. There are no complaints of any events prior to this point either as acts of discrimination or as acts contributing to her resignation.

[3]The claimant has a number of complaints about Mr James conduct as Acting General Manager. She states that she was due to have monthly reviews but that these never took place; that she herself had concerns about a number of aspects of, in particular the health and safety regime; and that she had been approached by other members of staff who had concerns about lack of uniform and PPE, lack of cleaning products; and lack of training. She alleges she attempted to raise these with Matthew James but that when she did so she avoided or told he was not available. In her ET1 she alleges that this happened on several occasions, and so she decided to wait until Tina Kelly returned from maternity leave to raise these points.

[4]The rights and wrongs of these issues are not all strictly relevant for our decision. However they are disputed by Mr James and some are part of the reasonable adjustments claim so we will deal with them as they arise. Reasonable Adjustments

[5]It is convenient to deal first with the claimant’s allegations of failure to make reasonable adjustment as, if any or all of these are made out it will necessarily inform the decision as to whether she was constructively dismissed.

[6]Before considering the individual allegations we remind ourselves that the constituent elements of section 20 are that the employer has a provision, criterion or practice (PCP) which places the disabled person at a substantial disadvantage in comparison with persons who are not disabled and that there are steps which could remove that disadvantage which it is reasonable for the employer to be required take.

[7]Secondly, we have taken the allegations below from the list set out by the claimant. The claimant’s witness statement is almost entirely silent as to any of the claims themselves and there is very little primary evidence before us from the claimant in ---2--- respect of them. This is not, and is not intended as a criticism of the claimant who has no legal representation, but in our view reflects the fact that the complaints are in reality a list of events with which she is unhappy, many of which are difficult to fit within the legal structure of a claim for reasonable adjustments, and some of which do not appear to engage the question of disability at all. Moreover a number of them rest on a legal fallacy. The claimant has throughout the hearing been described by her and her representative as a “vulnerable adult” who was owed a duty of care by the respondent and that any alleged failure in that duty of care is necessarily an act of discrimination. Whilst it is true that all employers owe their employees a duty of care a breach is not necessarily an act of discrimination; in deciding whether the claimant has made out any of her claims of discrimination we must apply the statutory tests.

[8]Allegation 1 – The first allegation is of the failure to hold regular review meetings. It is in truth difficult to analyse this as a failure to make reasonable adjustments. On the evidence before us, which was not disputed, during Mr James’ time as acting General Manager review meetings were scheduled on a monthly basis. It is not in dispute that these did not take place in the claimant’s case. Mr James explanation is that they got on very well and that she preferred to have informal chats to formal review meetings so that is what happened. Mr James evidence is that prior to becoming acting General Manager he had been told in a meeting with Tina Kelly and the claimant about the claimant’s condition and he had shared with her that he too suffered from significant issues around anxiety and depression.

[9]In effect the respondent’s submits that the reality is the exact opposite of the allegation. It had a PCP of holding formal monthly review meetings which it did not apply to the claimant. Thus the claim is bound to fail as the PCP was not in fact applied to her on her own evidence. Alternatively on the respondent’s evidence although this was not consciously an adjustment in respect of disability, the respondent had adjusted its usual practice to accommodate the claimant. Therefore the claim is equally bound to fail if we accept the respondent’s evidence. In our judgment this analysis is correct, but for completeness sake we do accept Mr James evidence and accordingly we cannot identify any PCP which placed the claimant at a substantial disadvantage nor any failure to make any adjustment however the PCP is constructed.

[10]Allegation 2- This relates to shift patterns. It is alleged that the claimant worked a Friday PM shift from late August 2016 and continued as part of her normal shifts to work weekend shifts. She could therefore find herself working a late shift followed by an early shift overnight on Friday/Saturday or Saturday/Sunday. The claimant alleges that as tiredness as a trigger for her depression that rotaing her in this way placed her at a substantial disadvantage.

[11]In this case the PCP is rotaing staff to do late followed by early shifts on consecutive days. The respondents point out that the possibility of doing late/early on Saturday/Sunday had always been part of her rota about which she had never complained. Prior to August 2016 she had worked Monday, Thursday and any weekend shifts. This was changed to Monday, Friday pm and any weekend shifts, at ---3--- her request as she was attending counselling on Thursdays. It follows submits the respondent, that the risk of working consecutive late and early shifts on Saturday/ Sunday had always been present as part of the claimant’s normal shift rota and was not something she had ever requested to change. The change to doing a Friday pm shift, thus creating the risk of doing consecutive late and early shifts on Friday/Saturday was made at her request. In addition it automatically follows that if she worked late/early shifts Friday/Saturday she could not do late/early on Saturday/Sunday; it could by definition happen only once in any given weekend and she could not therefore have been at any greater disadvantage on any given weekend after the shift change than she had been before it. There cannot, therefore, even on the claimant’s case be any greater disadvantage than had ever previously been the case. Fundamentally the practice about which the claimant complains was specifically requested by her to allow her to attend counselling. It was in fact an adjustment which she had asked for and which was agreed to by the respondent. Somewhat paradoxically it submits that the criticism is not of failing to make a reasonable adjustment but of having done so, and that in reality the claimant’s case is that the reasonable adjustment would have been to have refused her own request for a reasonable adjustment.

[12]Allegation 3 and 4 are allegations of refusals to accommodate the claimant’s requests to change shifts. It is not either the claimant or respondent’s case that it had a PCP of refusing to change shifts; indeed part of the claimant’s complaint is the specific refusal on these occasions when other request both for her and other members of staff had been accommodated. They are therefore specific individual decisions and are not in any event PCPs so are bound to fail as claims for a failure to make reasonable adjustments. In any event in both cases it is not in dispute that the request related to childcare issues. This point is explicit in allegation 4 “ Another reasonable request to change shifts over the half term period to allow Lauren to be at home with her children during the school holidays as there was no other childcare available” It follows that we are unable to identify a PCP, and certainly not one that related to the claimant’s disability in any way.

[13]Allegation 5 - The claimant alleges that she was told that one staff party was compulsory. Again it is accepted that there was no PCP that staff parties were compulsory, so that if this was said and was intended to be taken seriously it was a one off decision taken by an individual manager and cannot amount to a PCP. Again in any event it is difficult to see how this placed the claimant at a substantial disadvantage because of her disability, as it is not in dispute that she did attend other staff parties which were not compulsory.

[14]Allegation 6 –This is an allegation that as a lone female supervisor the claimant should be accompanied by a male manager on New Year’s Eve and Beaujolais Nouveau day which are both very busy in Swansea. The claimant contended that as a lone female manager with no door security staff she would have to deal herself with drunken customers. The PCP appears to be the practice of randomly giving shifts to male or female managers without ensuring that there is a mixed complement, at least on potentially rowdy nights. This appears to relate directly to gender rather than ---4--- disability, and it is impossible to see how this PCP placed her at a disadvantage in comparison with non-disabled employees.

[15]Allegation 7 – This relates the denial of requests to be accompanied at disciplinary meetings. It is not in dispute that the claimant did request that she be accompanied by her husband at the grievance meeting, which was agreed by the respondent. The respondent’s evidence is that there was no equivalent request in relation to the disciplinary investigation meetings. Although the respondent does have a PCP of not allowing an individual to be accompanied at investigation meetings, as the employment handbook makes clear this can be relaxed in the case of disability or difficulty with the English language. If the claimant had made any such request it would have been considered and in all likelihood agreed given that it was in relation to the grievance meeting. Put simply in the absence of a request there was no failure to make reasonable adjustments. In our judgement this is correct. There is no evidence before us of any request in relation to the disciplinary investigation meetings.

[16]The second part of allegation 7 is of the failure to explain the reasons for her suspension. The respondent submits that this is factually incorrect. The claimant was given the reason in the suspension letter, in the investigatory meetings and in detail in the interview notes sent with the invitation to the disciplinary hearing. If the PCP is the failure to provide detail at an early stage this would not in any event be a reasonable adjustment as the whole purpose of an investigation is to establish the facts.

[17]The third is the continued use of Liam Reilly as a notetaker in investigatory meetings despite her request that he not do so. Again the respondent submits that a decision to use an individual as a notetaker at one meeting necessarily cannot be a PCP. In addition the reason the claimant initially gave was that he should participate as he knew those who were making the allegations, which is a complaint unrelated to disability.

[18]Allegation 8 – This relates to Mark Witherspoon’s conduct of the grievance meeting which made the claimant feel uncomfortable. Once again the respondent asserts that Mr Witherspoon’s conduct of an individual meeting cannot amount to a PCP, and that, although we have not heard directly from Mr Witherspoon, the claimant’s assertion is contradicted by the documentary evidence. Firstly there is the fact that he permitted the claimant to be accompanied by her husband, which is itself an adjustment to the usual procedure. Secondly at the outset of the meeting he specifically questioned whether the meeting should proceed in the light of the claimant’s health, and that it was she who wished to proceed; and that later on he specifically asked if she was strong enough to go through with it and how he could help her get through it. Moreover after she resigned he gave the opportunity to rethink and retract if she wished to. The respondent asserts that this entirely contradicts an assertion that he conducted himself in a manner that was unsympathetic to the claimant. ---5---

[19]We accept the respondent’s submissions in respect of all the allegations and accordingly dismiss the claims for the failure to make reasonable adjustments. Constructive Dismissal

[20]The events which led to the claimant’s resignation began on 6th February 2017. On that day she was due to have a meeting with Tina Kelly who had returned from maternity leave. During that day Ms Kelly was approached by Liam Reilly who told her that three members of staff had made allegations against the claimant. They took the advice of HR, and Ms Kelly and Mr Reilly interviewed Jon Maxwell who was one of those who had made allegations. During that meeting Mr Maxwell made allegations of what amounts to sexual harassment against the claimant. Somewhat curiously the claimant decided herself to call Mr Maxwell before this tribunal and he has confirmed that what he told Ms Kelly and Mr Reilly was true.

[21]Following advice from HR when the claimant arrived she was informed by Ms Kelly that she was suspended which was confirmed by letter the following day. In the ordinary course of events as Ms Kelly was the General Manager she would have investigated the allegations, but as she was the claimant’s sister in law this was inappropriate and Genevieve Thomas was appointed to do so. The initial investigatory interviews had been conducted by Liam Reilly on 6th February 2017. Ms Thomas interviewed the claimant on 11th February and seven witnesses on 18th February. Following that investigation four areas of complaint emerged; the claimant’s conduct on a staff night out on 1st February 2017; her conduct on an evening in November 2016, her conduct at the Christmas party; and her conduct at a party in June 2016. Three of the allegations broadly alleged forms of sexual harassment. The allegation relating to the Christmas party did not, and was not considered on its own serious enough to merit disciplinary action. The other three did and the claimant was invited to a disciplinary hearing in respect of them. It was due to take place 6th March, but on 5th March 2017 the claimant tendered her resignation.

[22]In addition to the disciplinary process on 12th February 2017 the claimant submitted a formal grievance. The grievance meeting took place on 23rd February. The grievance outcome was sent on 15th March 2017 and did not therefore play any part in the claimant’s decision to resign. Her complaints about the conduct of the hearing have been dealt with above.

[23]In her resignation email the claimant stated that the accusations by other members of staff had made her situation untenable; that the investigation had been dragged out; that whilst 15 members of staff had been interviewed only six sets of interview notes had been supplied; and that members of staff had openly spoken of their lack of confidence in her. In addition in the hearing she has advanced two further bases. Firstly she contends that the allegations against her were made up as those who had made them believed that she was going to blow the whistle on their own misbehaviour such as drug taking; and that they were persuaded or encouraged to do so by managers within the respondent who knew that she was going to complain about the matters which became the subject matter of her grievance. ---6---

[24]There is no evidence that the allegations were invented and indeed the claimant has called evidence from Mr Maxwell that at least some are true. Moreover Mr Maxwell has explained the process by which he agreed to give a statement after initially not wanting to become involved which, he says, was entirely his own decision.

[25]In our judgment the investigation was conducted extremely promptly; and that the claimant was sent the only notes that were relevant for her disciplinary hearing and that it is not factually correct that she had not been supplied with any relevant documents. Moreover it is unsurprising that members of staff who alleged that they were the victims of or had witnessed sexual harassment should have concerns about her.

[26]In general terms once these allegations had been made they had to be investigated. Having been investigated and being at least plausible it was inevitable that they would have to proceed to a disciplinary hearing, not least because as the claimant herself accepted they amounted, if true, to gross misconduct which could justify dismissal. Similarly the grievance process was conducted promptly and obviously seriously and with thoroughness.

[27]It is not alleged that any express term of the claimant’s contract of employment had been broken and she must, therefore be relying on the implied term of mutual trust and confidence. This is implied into every contract and is fundamental, that is to say that breach of it will entitle the employee to resign as having been constructively dismissed. At the risk of stating the obvious it is not sufficient that an employee subjectively believes that he or she can no longer work for the employer, the test is whether objectively the implied term has been broken. Looked at both individually and cumulatively we are unable to identify any fundamental breach of contract on the part of the respondent in respect of any of the allegations outlined above entitling the claimant to resign.

[28]It follows that all the claimant’s claims must be dismissed. Polkey

[29]Although it is not strictly relevant given our decision on liability, had we concluded that the dismissal was in any way unfair we would have applied a 100% Polkey reduction to any compensation as we have no doubt that on the basis of the investigatory interviews the claimant would have be found to have committed the misconduct alleged and would have been summarily dismissed in any event on 6th March 2017. ---7--- Judgment entered into Register _______________________ And copies sent to the parties on