Employment Judge RL BraceMr R Lassey (instructed by Counsel) for claimantMiss E Wheeler (instructed by Counsel) for respondentDate 23 August 2019
JUDGMENT
The claimant’s claim of unfair dismissal is well-founded. The matter will be listed for a remedy hearing. JUDGMENT having been sent to the parties on 23 June 2019 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]I have heard evidence over the last three days from five witnesses from the respondent and from the claimant and have before me a bundle of some 600 pages in length.[2]I am asked to consider a constructive dismissal claim arising from the imposition by the respondent of a change in the duties of the claimant and the subsequent management of the claimant in relation to, in particular, her concerns regarding the scale of the change.[3]The claimant’s refusal to accept change with effect from 25 March 2018 led to her suspension and during the period of suspension, which lasted nearly five months, the respondent considered three grievances and two grievance appeals, as well as investigated some disciplinary concerns held by the respondent regarding the claimant’s refusal to work to the new duties.[4]The outcome of the third grievance was the last straw for the claimant and led to her resigning. The claimant claims that the respondent committed a series of breaches which, when taken individually or together amounted to a fundamental breach of contract, in particular the breach of implied term of trust and confidence. The claimant relies on the following:a. The respondent forced a change of contract without her consent;b. The respondent claimed there were minor changes when this was not in fact the case;c. It was unreasonable to suspend the claimant;d. The respondent left the claimant on suspension for months without contact or care;e. The respondent failed to properly consider or answer concerns about the changes;f. The management of the grievance process; and finally,g. The respondent unreasonably rejected the grievance and appeal. This was the last straw which led to her resignation.[5]There has been no suggestion that the claimant has affirmed the contract when considering the course of conduct.
The Law
[6]I don’t intend to set out the law at length but Section 95 states that there is a dismissal when the employee terminates the contract with or without notice in circumstances that he or she is entitled to terminate by reason of the employer’s conduct. The leading case in this is Western Excavating v Sharp.[7]The conduct must involve a repudiatory breach of contract and it is for the employee to establish that there was a fundamental breach of contract on the part of the employer. The employer’s breach caused the employee to resign and the employee did not delay too long before resigning. A constructive dismissal is not necessarily an unfair one.[8]I put it no longer than that for the purposes of today due to the time.
Findings
[9]On 4 July 1989 the claimant was employed by the respondent and,as at the date of termination in August 2018, had been employed by the respondent in the role of Stock Manager at the Caerphilly branch. She had worked previously at other stores over her twenty-eight years at Tesco and had worked at some point for the respondent in a compliance role.[10]On 22 January 2018 Mr Jeffrey commenced his new role as Store Manager for Caerphilly having worked himself for the respondent since 2007. On the same date the respondent announced a ‘People Transformation Programme’ referred to in this hearing as ‘Project Avocado’.[11]By way of background to Project Avocado, work had been undertaken on the programme for some time and I heard evidence from Sally-Anne Marsh who was, prior to July 2018, engaged by the respondent as Organisation Design Account Manager. Her responsibilities were to review, scope and implement changes to management structures within large stores for Tesco.[12]From 2016 there had been a review within the respondent on the People Manager and Compliance Manager roles and a decision was made, in particular, to remove the Compliance Manager role from the respondent structure.[13]When changes were made to roles within the respondent organisation, changes were categorised as major or minor and the following are considered:a. whether role accountabilities, including head count and day-to-day tasks, changed; andb. if there are more similarities than differences;c. any key changes to terms such as location and salary. If not, the change was classed a minor.[15]The respondent undertook the change review with methodology that included stringent governance before implementation of any pilot scheme. In the case of Project Avocado, a conclusion was made that the removal of Compliance would lead to a change in the Stock Manager role. A conclusion was also reached by the respondent that the change was a minor change.[16]A pilot took place in forty-seven large stores and during the pilot concerns were raised regarding proposed changes to the Stock Manager role (now renamed Stock and Admin Manager), in particular for those stores that had night opening, a change which did not in fact impact on Caerphilly store which did not have night time opening hours.[17]The question of whether any change to the role, was a major or minor change, was a business decision at the Operational Design level within the respondent organisation. Whilst there was an ability for local managers to challenge that business decision by challenging the Operational Design team, this was outside the scope of individual grievance.[18]Further, if any individual manager was to consider an individual grievance, from any employee impacted by a change to their role in the grievance would be to clarify the concerns and to implement and deliver the aims of Project Avocado. Managers were to rely on the governance regime, that had been put in place as part of the project, to ensure that the changes were properly classed as major or minor. Managers did not have authority to alter the classification of whether the change was major or minor through the grievance process.[19]As indicated the announcement was made to the Caerphilly store on 22 January 2018. This announcement was made by the previous store manager, Nadine Clarke, who read at the form of announcement which had been documented in advance and was contained in the Bundle, with specific changes being made to the Stock Manager role and dependent on whether the store operated during night time hours.[20]In the claimant’s announcement, the claimant was advised the changes were minor and that the Stock Manager role would be renamed Stock and Admin manager.[21]At that meeting held with the claimant, Mr Jeffrey asked the claimant to accept the role. The claimant immediately expressed concerns that the changes did not feel minor to her and that she would want to understand how the changes were minor. Whilst a documentation known as a ‘My Role Pack’ had been prepared for the new role, a copy was not available for the claimant at this meeting. A My Role Pack had been provided within the Bundle at page 494, which summarises the main elements to the role. It does not allow for direct comparison between the new Stock and Admin role and the existing Stock Manager role.[22]Mr Jeffrey alleges that the claimant said she wanted redundancy and laughed (paragraph 8 of his witness statement). This is disputed by the respondent. I have reviewed a summary document of the discussion which took place on 22 January (and for the avoidance of doubt the summary document of the 23 January meeting,) and noted this had not been noted or referred to in either document.[23]I therefore find that the claimant did not make this comment based on her verbal testimony in cross examination, where she denied this, and following a review of both documents.[24]Had this been raised by the claimant I would have expected to see this reflected in either document, it was not. In any event even if the claimant had raised this at either the meeting on 22 and 23 January, this would have been at a time when the claimant would not have had any opportunity to consider the My Role Pack, as it had not been provided to her, but had been made in immediate reaction to the announcement.[25]On 23 January 2018, a formal 1-2-1 consultation took place again attended by Gareth Jeffrey and Nadine Clarke. The claimant was shown a copy of the Role Pack for the new role and asked if she accepted the role again. She asked for a copy of the My Role Pack but was told she could not retain that copy. A copy was not provided to her until a few days later.[26]The claimant indicated that she had questions about the new role and provided Ms Clarke and Mr Jeffrey with a copy of the questions that she had (page 66 – 68 in the Bundle). The very first question she asked was for clarity on the difference between ‘major’ and ‘minor’ change in the job role. This was repeated later in the document and the claimant highlighted concerns as to her mental health as a result of the process.[27]At that point, neither Mr Jeffrey nor Ms Clarke would answer her queries as they simply did not have the answers for her. Mr Jeffrey promised he would get those answers and he was tasked with getting them to the claimant. This was accepted by Mr Jeffrey on cross examination. The claimant was asked if she wanted to see a list of vacancies at that point but was told she could not apply for them until 7 March 2018 due to the ongoing redundancy consultation exercise.[28]At some point after that 23 January 2018 meeting the claimant was provided with a Role Pack to compare her old role with the altered role and she concluded following that exercise that 93% of the old compliance role was included in the new role, including compliance and legal checks as well as increased management.[29]On 31 January 2018 the claimant fell ill on the way to work and was hospitalised. The claimant was told by the hospital doctor that she was suffering from anxiety related symptoms and thereafter she was absent from work until 11 February 2018.[30]A return to work meeting took place on that day conducted by Mr Jeffrey following which Mr Jeffrey made an Occupational Health referral. At that meeting the claimant confirmed that it was the structured change that was causing her anxiety and repeated again her view which was this change was not a minor change.[31]On 13 February 2018 a second 1-2-1 meeting took place conducted again by Nadine Clarke and Gareth Jeffrey. Mr Jeffrey was still not in a position to answer the claimant’s questions but despite this the claimant was again asked if she accepted the Stock and Admin role. She reiterated that she still did not consider this was a minor change and without specific answers to her questions, specifically in relation to her role in Caerphilly, she could not make that decision.[32]Whilst on cross examination Mr Jeffrey could not recollect the following, he accepted that it was possible that he told the claimant that the Stock Manager role no longer existed and that the claimant had indicated that if the role did not exist anymore she should be under consultation. I therefore concluded in light of the claimant’s evidence and the equivocal evidence from Mr Jeffrey, that the claimant had raised both issues.[33]What is not in dispute is that the claimant was, at that meeting, given four options of stepping down, look for another vacancy or resign or she accepting the new role was still an option.[34]The claimant has given evidence that she felt under pressure as a result of the three meetings on 22 January, 23 January and indeed the following meeting on 30 January. As corroboration she relies on the interview given, as part of the Kirsty Powell investigation, on 22 May 2018 by her trade union representative, Alison Partridge, that there was a lot of pressure on the claimant to take the role.[35]On the basis that:a. it was accepted by Mr Jeffrey that he asked her on three separate occasions to accept the new role,b. that he accepted there were no answers to her questions at this stage,c. that she was only given four options, none of which included a status quo option;d. the claimant had indicated anxiety as a result of change which had resulted in sick leave and an Occupational Health referral and;e. there was some evidence, albeit hearsay evidence, from the trade union representative about the impact on the claimant I found that it could be reasonably concluded that the claimant would have felt pressured to accept the role of Stock and Admin manager.[36]In terms of the options available to the claimant at this time, the options listed above were the only four options on offer to her from the respondent. Alterations to the Stock and Admin role was not an option open to Mr Jeffrey. At that point in time Mr Jeffrey did not know why change was considered minor and had not undertaken a comparison of the two roles. He had no understanding or knowledge of the criteria for change but accepted that, as a matter of common sense, the changes were not minor. Despite this he took the change to be minor because of what he had been told by senior management.[37]There is a dispute as to whether after that meeting Mr Jeffrey asked the claimant whether she wanted to go through the Role Pack to discuss the changes. The evidence from Mr Jeffrey was that she declined this offer, as in doing so she would effectively be accepting changes. Mr Jeffrey was not cross examined on this. On cross examination the claimant maintained that Mr Jeffrey never offered to go through My Role Pack. On balance I accepted the unchallenged evidence from Mr Jeffrey.[38]However, notwithstanding this, I also found that Mr Jeffrey did not in fact at any point undertake a comparison of the two roles in order to facilitate a response to the questions from the claimant.[39]At the end of the meeting, the claimant provided a letter detailing her concerns and on 6 March 2018, sent an email to the Chief Executive of Tesco essentially reiterating those concerns. She received a response that an investigating manager would be in touch to update the claimant on their findings.[40]On 7 March 2018 a further 1-2-1 meeting took place again, attended by Nadine Clarke and Gareth Jeffrey. At that meeting she was told she would not be getting answers to her questions and again, the four options that had been articulated on previous occasions were reiterated. Ms Clarke advised the claimant the respondent would not be answering the questions raised by her and, as a result, the claimant submitted her grievance letter that day. I refer to this as Grievance 1.[41]From 8 March – 20 March, the claimant was on annual leave.[42]On 22 March 2018 a telephone occupational health referral took place with the claimant which, amongst other things, advised work related concerns were to be addressed as soon as possible. Whilst the written report from occupational health was dated 22 March 2018, I accepted that Mr Jeffrey did not receive this document until a few days later and, in any event, did not receive it until after the meeting which took place later that day.[43]On 22 March Mr Jeffrey asked to see the claimant again and asked if the claimant was willing to undertake her role as changes were to become effective on 25 March 2018. The claimant confirmed she would not. In response Mr Jeffrey told the claimant that he was suspending her as she was refusing to undertake the Stock and Admin role. The claimant became upset and asked for an adjournment to compose herself which Mr Jeffrey refused. Mr Jeffrey accepts that this was an error on his part.
The Law
[44]The letter confirming suspension dated 22 March 2018 stated the claimant was suspended pending an outcome into the investigation into allegations of not carrying out a reasonable management request to fulfil her role as Stock and Admin manager at Caerphilly.[45]The suspension was not carried out in a manner that was sensitive. As accepted by Mr Jeffrey, and as I found from my review of the suspension checklist (page 102 – 2014 Bundle) Mr Jeffrey did not carry out the suspension in accordance with company policy, not least as no notetaker was present.[46]At that point in timea. the respondent had not answered any of the claimant’s questions, despite having committed to do so; andb. had not dealt with the claimant’s grievance of 7 March 2018 beyond communicating to her that they would arrange for a grievance to take place.[47]I also found, following consideration of the evidence given by Mr Jeffrey on cross examination, at that point the claimant should not have been asked to start a role without clarification on her questions posed on 23 January. This was also accepted in principle by other respondent witnesses including Mr Jackson.[48]I therefore found that as at 22 March 2018, at the point of suspension it was not a reasonable management request to ask the claimant to fulfil her role as Stock and Admin manager of Caerphilly with effect from 25 March 2018.
Conclusions
[49]The claimant immediately brought a second grievance regarding suspension which was dealt with and I have referred to as Grievance 2.[50]On 3 April 2018, a grievance meeting was held by Nicola McGuiness to consider Grievance 1 and grievance 2 and, following interviews with various personnel, the grievances were not upheld.[51]On 22 April 2018, the claimant appealed and submitted a further grievance which I will refer to as Grievance 3 against the role change being classed as ‘minor’.[52]On 4 May 2018, the claimant was told this grievance would not be investigated and she challenged this on 10 May 2018.[53]On 9 May 2018 the claimant attended an investigation meeting regarding her suspension.[54]On 18 May 2018 the claimant attended a grievance appeal meeting on Grievance 1 and Grievance 2 before Ms Powell.[55]A hearing was arranged on 5 June 2018 for the grievance appeal outcome decision which concluded, amongst other issues (as set out at page 304 – 306 Bundle,) that answers to the claimant’s questions would have helped her make an informed decision about the role.[56]Despite this finding no action was taken by the respondent to lift suspension. The claimant says that at that point the suspension should have been lifted, but nothing came of it.[57]Despite Ms Powell’s findings that answers to her questions would have helped the claimant make an informed decision, I found nothing came of that grievance appeal decision and the claimant remained on suspension without review or further review by Mr Jeffrey.[58]On 13 June 2018 the claimant attended a grievance meeting with Mr McDougal (in relation to grievance 3) and, following that meeting, Mr McDougal interviewed a number of individuals including Mrs Marsh, where she explained to him the differential between ‘major’ and ‘minor’ changes.[59]It is accepted by Mr McDougal that he did not record the conversation and we have not seen his notes. Mrs marsh gave him an overview of Project Apple and the pilot scheme.[60]That Grievance 3 outcome was delivered on 2 July 2018 and concluded the following:a. that there were only fifteen additional checks,b. that it was feasible to manage a head count of eleven,c. there were duplicated checks; andd. on call would be managed within a rota that would be fair.[61]This is in essence of what is contained at page 372. Despite those findings there was no conclusion on the essential complaint from the claimant that the changes were ‘major’ as opposed to ‘minor’.[62]The claimant appealed this decision. This was considered by Mr Nick Jackson. At that point the claimant still had no clear conclusion on whether the changes were considered, or why the changes were ‘major’, not minor. This is accepted by Mr Jackson.[63]As part of the appeal Mr Jackson interviewed Mrs Marsh on the impact of the change, as addressed and articulated by her in the investigation meeting note at page 419. However, there was still no assessment of how the ‘major’ versus ‘minor’ distinction applied to the particular Store Manager role at Caerphilly.[64]Having considered evidence from Mrs Marsh I found that the purpose of the grievance procedure was not to challenge the business decision and that managers had no power to alter the definition of ‘major’ or ‘minor’ or the application of those definitions to a particular role within a grievance procedure as that was a business decision.[65]I found that Mr Jackson did not consider this was a decision he could make and that such I find that the claimant could not succeed on her grievance, as on a case by case basis, managers would have no power to change the definition within a particular role.[66]Further, that even though there was a process outside of the grievance procedure to challenge, no manager did challenge this business decision, leaving the claimant with no recourse or redress.[67]The claimant felt this was the final straw and resigned in response to the outcome from Mr Jackson.[68]Finally, for the sake of completeness, I found that save for two phone calls from Mrs Macavaney, in May and either June or July, and some contact via management of the grievance and disciplinary process, no other contact was made with the claimant during her five months’ suspension.[69]There is a dispute as to whether the phone call from Mrs Macavaney was made in June or July. The claimant was emphatic that it was July as she related it to her meeting.[70]I found on balance that as a result this was more likely than not to have taken place in July but in any event, I found that the exact date of the call was of no significance.
Conclusions
[71]In terms of the contract, I accepted that the respondent by reason of the terms of the claimant’s contract was entitled to make changes on notice and that there would be a minimum of four weeks’ notice before that change was put into effect. However, even where the contract accommodates changes that can have a detrimental effect on the claimant or employees generally, such a discretion is fettered by the obligation to maintain trust and confidence.[72]In this case I concluded there was a contractual term allowing for variations and that the claimant accepted that the time frames within which the change could be put into effect had been complied with.[73]In isolation I did not consider that the respondent had breached the contract by seeking to oppose a change through the mechanism set out in the contract.[74]However, I did consider that the methodology that the respondent had undertaken, in light of the claimant’s concerns about the scale of the change as they related to her role in Caerphilly, was a matter which could give rise to a breach of the implied term of trust and confidence.[75]In terms of the breach of the implied duty of trust and confidence, I am asked to consider a number of instances.[76]The first is the pressure that the claimant would have felt after the three consultation meetings of 22 and 23 February and 7 March 2018. I found that this would have reasonably resulted in pressure on the claimant to accept the change. I accept that it would have been obvious that this would have had that effect on her, particularly in the context of her concerns and what she had clearly stated were major changes, which were unpalatable to her.[77]At no time was there any granular or detailed review of her new role to understand if the concerns held by the claimant were viable.[78]At no time was it explained to the claimant what the changes meant to her specifically.[79]At no time was there any consideration of the queries raised by the claimant.[80]These failings in local management would have started to erode the trust and confidence although at that point in time, was insufficient to amount to a complete breakdown in the trust and confidence in isolation.[81]It is possible that had Mr Jeffrey spoken to Mrs Marsh, or anyone in the Organisational Design team at that stage, the analysis undertaken by that team following their governance review and pilot work, could have been communicated to the claimant and could have reassured her.[82]It was not. Coupled with a lack of any analysis by Mr Jeffrey of the role change, the claimant was effectively left in the dark. This was a case where the information held by the Organisational Design team, which could have clarified the position and could have been communicated to the claimant, was not. This would have avoided a lengthy grievance hearing from the respondent in relation to an employee with a considerable period of service.[83]This is despite Mr Jeffrey agreeing on cross examination that the changes were not ‘minor’ changes. No thought was given to Mr Jeffrey at that point as to how the changes would impact on that role in Caerphilly, in that store.[84]I concluded that no one at local management seriously engaged with the claimant at that stage regarding her concerns. I found that the failure by her line manager, both by Ms Clarke and Mr Jeffrey, to respond to her concerns raised at each meeting, as Mr Lassey put it formed a slow erosion on the claimant’s trust and confidence.[85]Turning now to the meeting of 22 March and the suspension. As I have found and concluded that it was not a reasonable management request to ask the claimant to fulfil her role as a stock admin manager on 22 March the claimant’s suspension by Mr Jeffrey on that date was neither an appropriate nor a reasonable response.[86]Whilst suspension is not a disciplinary sanction, in the context of the conclusion that there was no reasonable management request for her to commence her amended role, I have to consider whether there was a reasonable and proper cause for the respondent’s action in suspending the claimant.[87]The claimant had been asking since the day of the announcement for information on the new role because of concerns she had. It was accepted by Mr Jeffrey that it was not unreasonable for the claimant to expect answers to her questions before accepting. No one did provide those answers. Had someone done this prior to 22 March, the respondent may have found itself with a different conclusion from me today. However, no one did or had provided those answers to the claimant by 22 March 2018.[88]No evidence was presented by or on behalf of the respondent that they considered options as alternatives to suspension. The claimant has suggested that she could have been placed on alternative duties in another store pending outcome of her grievances.[89]The rational from the respondent for suspension is unclear and none have been offered in the context of the respondent’s own suspension policy. Notwithstanding that, the claimant’s representative has indicated that if there had been a reasonable management instruction, he would have difficulty in challenging that the suspension was not warranted.[90]However, in the context of my findings, that it was not a reasonable management request, I considered that it was a gross oversimplification to conclude that simply because the claimant had concerns regarding the changes to the role and wanted answers to her questions before she accepted that change, that she inevitably had to be suspended.[91]I concluded that the respondent’s reaction to the claimant’s position was an immediate reaction and it is difficult to believe that an employer the size of the respondent, particularly when dealing with an employee of twenty-eight years’ service, should have considered that suspension was an appropriate response.[92]In the context of trust and confidence, there was no reasonable or proper cause to suspend and I concluded that suspending the claimant in March, at a time when she still had no answers to her queries, and additionally no attempt by management to answer her queries, was conduct likely to destroy the trust and confidence in the relationship.[93]Furthermore, despite Ms Powell’s finding on her grievance investigation, no action was taken on lifting the suspension despite Ms Powell reassuring the claimant she would ‘feed back’. Mr Lassey, on behalf of the claimant, puts that grievance appeal outcome as ‘meaningless’, as nothing happens in practice. I agree in the context of suspension.[94]I consider that failure to review the suspension at that stage, and/or give proper consideration to lifting it, to be in breach of the terms of trust and confidence. Mr Jeffrey did not even consider the continuation or otherwise of the suspension and that is a fundamental breach of trust and confidence.[95]Whilst the claimant did have some contact with the respondent during her suspension, through the internal management process and the two phone calls made by Ms Macavaney, there was little or no pastoral support for the claimant throughout her suspension.[96]I heard evidence from Ms Macavaney that she contacted her only twice during suspension. Having concluded that there was little or no other contact with the claimant regarding her welfare, taking into account the rationale for the suspension, the length of suspension, the claimant’s state of health brought on by the change, the management of the suspension and the delay throughout the suspension, this all amounted to a breach of trust and confidence entitling the claimant to resign and complain of constructive unfair dismissal.[97]Despite three grievances, two grievance investigations and two appeals, no one, at any stage, did a granular or indeed any analysis of the two roles in order to answer the claimant’s concern that the changes represented a minor change to the role.[98]Rather what arose was an acceptance of Organisational Design’s position, which was that the change was ‘minor’. This may very well be right, but at no stage did anyone feed that back to the claimant with a review of how it applied to the claimant in her role at Caerphilly.[99]It has not been my task to understand whether the changes to the role were major or minor, rather it was to review whether the respondent’s management of the claimant, and the concerns she raised were said to amount to breach of the implied term of trust and confidence.[100]In terms of the length of the time for the grievance procedure to conclude, particularly in light of the final findings made by Mr Jackson, which effectively reiterated which Organisational Design had put in place, which failed to analyse how the project impacted on the claimant’s specific role, despite Mr Jackson’s best efforts was also a breach of the implied term of trust and confidence.[101]The final conclusion of the second appeal, which still did not address the claimant’s queries was the final straw. I accepted that as the final straw and I also accepted that it entitled the claimant to resign and claim constructive dismissal. I therefore found that the claimant’s claim of constructive unfair dismissal has been well founded.[102]Further and finally, I did not conclude that the respondent has demonstrated that, in the alternative, there has been any fair reason for dismissal.[1]The claimant succeeded in a claim of constructive unfair dismissal. This hearing is set down to deal with the appropriate remedy in that claim. I have heard oral evidence from the claimant, who has also provided a bundle of documents (“Remedy Bundle”). I have also heard submissions from both parties. This judgment is to be read in conjunction with the liability judgment of 20 June 2019.[2]The issues between the parties are solely related to the correct quantum of compensation, the claimant not seeking re-instatement or re-engagement.[3]The claimant seeks a basic award, which the respondent concedes in principle, but there is a dispute between the parties on the calculation of a week’s pay for the purposes of the basic award and therefore no agreement on the actual sum calculated by the claimant in the schedule of losses within the Remedy Bundle.[4]The claimant claims a compensatory award from the date of her dismissal on 17 August 2018 to the date of her new employment with Rhondda Cynon Taf Council on 1 April 2019 (33 weeks,) together with a further 26 weeks’ future loss of earnings. The respondent argues that compensation for loss of earnings must be limited to losses to 17 February 2019, being a period of 26 weeks/6 months from the termination of employment on 17 August 2018.[5]Again, there is no agreement on the amount of week’s pay for the purposes of a compensatory award.[6]The claimant contends that the basic award (and any compensatory award) should be based on contractual pay of £27,779.44 per annum (gross), the respondent’s case is that the basic award (and any compensatory award) should be calculated on a ‘week’s pay’ calculated in accordance with s.220 and s.221(3) Employment Rights Act 1996.[7]In relation to the compensatory award, there is an additional dispute between the parties as to: 7.1. what percentage pension loss is claimable, with the claimant seeking to recover contributions at 7.5%, and the respondent claiming that pension losses should be based at 7%; 7.2. what additional or ‘fringe’ benefits’ can be claimed by the claimant as: 7.2.1. The respondent contends that the claimant has had returned to her all contributions made (and so no losses have been sustained) and in any event disputes that the claimant has demonstrated losses in respect of the ‘Save as you Earn’ share scheme (“Share Scheme”) and as a result the tribunal is required to speculate on the losses suffered by the claimant; 7.2.2. The parties do agree that the claimant can recover an amount in respect of the Colleague Clubcard/staff discount at the rate of £6 per week.[8]Despite over two months elapsing since the liability hearing, the claimant and respondent have not been able to agree losses and, in addition to the failure to agree the calculation of a ‘week’s pay’ for the purposes of the calculation of the basic award or assessment of the compensatory award, they have also been unable to agree what the set employer pension contribution rates were and/or the position in relation to the Share Scheme. No application was made by either party for an adjournment to address and/or seek to resolve the issues.[9]In addition to financial losses, the claimant also seeks an award for loss of statutory rights in the sum of £350, and an additional sum for ‘loss of long notice rights’ at £2,455.38 (being 6 weeks’ net pay at a net week pay rate of £409.23). The respondent has indicated that a sum of £250 is more appropriate for loss of statutory rights and contests that the claimant can recover any further amount in respect of loss of long notice rights’.[10]The respondent asks the tribunal to reduce the overall award to find that the claimant would not have found the changes proposed by the respondent to have been acceptable had they followed a correct procedure and/or provided her with the information she sought, and claim that she would have left their employment in any event in March 2018 when the changes took effect (or at the latest in April 2018,) as they maintain she clearly had no appetite for continuing in her old role at the respondent. On that basis, a Polkey approach would mean that the claimant would not be entitled to compensation.[11]If the respondent fails in that submission, Miss Wheeler argues that the claimant has failed to properly mitigate her losses, in that whilst the claimant did undertake a job search, the searches focussed on HR roles which was more congenial to her and took her longer to obtain alternative work, than forms of employment akin to her most up to date retail experience.[12]Finally, with regard to the ACAS uplift, the claimant seeks an uplift on the basis of: 12.1. unfairly suspending the claimant for 5 months with no review or duty of care; 12.2. failure to hear the grievances in line with policy which resulted in unreasonable delays to meetings; 12.3. unreasonable delays in conducting investigatory meetings into suspension; 12.4. not being permitted representation at suspension meeting; 12.5. investigations into suspension were not conducted thoroughly; 12.6. investigations into grievances were not conduct thoroughly; and 12.7. grievance meetings were rescheduled when representative was unavailable[13]Whilst the respondent accepts the tribunal’s finding that the claimant was suspended unfairly, it does not consider that this finding merits the full 25% uplift. Further, the additional grounds relied upon to seek an uplift, are not merited and/or do not form part of the liability judgment.
The Relevant Facts
[14]The claimant gave a very brief statement at the liability hearing, supported by documentary evidence contained in the Remedy Bundle. The facts of the case are set out in the liability judgment and I do not intend to repeat them here.[15]In relation to the calculation of a ‘week’s pay’, the claimant’s gross annual salary was £27,779.44 and she was paid on a 4-week basis the gross amount of £2,136.88 (see Doc 24 and 25 Remedy Bundle). This equates to a contracted gross week’s pay of £534.22. It is the contracted pay that the claimant has utilised for the calculation of both the basic (reduced to the capped £508) and compensatory award.[16]The respondent’s calculation of the claimant’s gross ‘week’s pay’ under s.221 ERA 1996 for the purposes of the basic award is £496.35.[17]The law is clear that it is the calculation of ‘week’s pay’ under the provisions of s.220-229 ERA 1996 that is to be used for the purposes of calculating any basic award.[18]However, I had no evidence before me that the calculation of the claimant’s ‘week’s pay’ under the provisions of s.220-229 ERA 1996 would alter from the amount payable under the contract of employment (s.221(2) ERA 1996). This amount has been capped by the claimant in her schedule of loss to £508 due to the statutory cap for the purposes of the Basic Award and it is this amount that I found should be used.[19]The claimant’s contracted net weekly pay is £409.23 as claimed in the claimant’s schedule of loss. The respondent did not challenge this calculation of the contractual net weekly contracted pay. Rather the respondent included a calculation based on s.221 ERA 1996.[20]Unlike the basic award, there is no obligation to use the statutory calculation of ‘week’s pay’ for the purposes of the compensatory award and it is the net contractual amount for weekly pay that is claimed by the claimant, that I found should be used for the calculation of any compensatory award.[21]In relation to the pension losses, whilst the respondent challenged that the employer contribution rate was 7.5%, Miss Wheeler was not able to assist on why the rate was stated to be 7% and had no evidence to support that rate. On that basis, Miss Wheeler conceded that rate. In any event, on the basis of the evidence before me, I found that the employer pension contribution rate was 7.5% as claimed, not 7% following a review of the Payroll Reports disclosed (page 24 and[25]Remedy bundle,) the amount for employer pension contribution was shown to be £160.27, which I calculated to be a 7.5% employer contribution rate.22. In relation to the loss of benefit of Colleague Clubcard/staff discount, on the basis of agreement between the parties, I found that the claimant had suffered a loss in the sum of £6 per week in respect of this benefit.23. In relation to the loss of the benefit of the Share Scheme, as I made clear to the representatives at the hearing, the evidence before me on this issue was confused in terms of the oral evidence from Mrs Escott, and scant in terms of documentary evidence. The statement submitted by Mrs Escott (para 18 of the witness statement) simply stated that the Share Scheme gave her a 60% profit on savings, and she had suffered a loss in the sum of £4,425.24. The schedule of loss submitted on behalf of the claimant and contained in the Remedy Bundle showed this to be calculated at the rate of 60% of £125 per week (£500 per 4-week period). At the hearing this was recalculated and reduced by Mr Lassey, Mrs Escott’s representative, to £2,696.25. 25. Whilst I accepted that the claimant had saved £500 per month into the Share Scheme, and that she had purchased and sold a percentage of the shares within the Share Scheme account, there was no evidence before me (whether verbal or in documentary form) to support her contention that she had suffered losses, whether 25.1. in the sum of £4,425 as originally claimed in the claimant’s schedule of loss; 25.2. £2,696.25 as amended and claimed at the hearing by Mr Lassey, 25.3. or indeed at all.[26]Whilst it is possible that the claimant has suffered a loss as a result of the loss of this benefit, I had no evidence before me to make a finding in the claimant’s favour and do not find as a result, on balance of probabilities, that the claimant has suffered a loss in respect to this element of her claim. Mitigation[27]In relation to mitigation, the respondent submits that the claimant would have found alternative employment, at equivalent level of salary that she had enjoyed with the respondent, within 6 months i.e. to 17 February 2019.[28]The respondent has challenged that the claimant’s attempts to find alternative work, limited to roles in HR, was not reasonable. Mr Lassey on behalf of the claimant has submitted that the claimant wanted a stable future, did not see retail as that stable future and that she was forced to explore entry level roles in HR.[29]The claimant had applied for 88 positions since the termination of her employment. Copies of those applications, together with a schedule of those applications, were contained in the Remedy Bundle. Most of the applications i.e. all save for around 4- 5 applications, were for entry-level roles within HR. None were in retail management.[30]The claimant restricted her job search, from the outset of her unemployment in August 2018, to roles within Human Resources (“HR”). She did not attempt to find alternative employment within the area of her considerable experience in retail management. She restricted her search in this way throughout the time she was looking for employment, up until she obtained alternative employment within HR at Rhondda Cynon Taf Council. I have no evidence of additional job searches beyond March 2019.[31]The claimant self-funded and completed CIPD Level 5 in Diploma Human Resource Management in October 2018 but I had no evidence before me that the claimant had any other HR qualification.[32]Within the roles undertaken by the claimant at the respondent over the previous 15 years, including that of Stock Manager, the claimant had undertaken human resource responsibilities. The claimant had not however carried out a role which included within the job title ‘HR’ and whilst she had also deputised for the respondent’s HR officers, she had never been employed by the respondent within its Human Resource department or within an HR role.[33]I have no evidence before me on the job market currently within retail management and no evidence has been adduced by the respondents on what, if any, available roles within retail existed since the termination of the claimant’s employment, that the claimant could have and/or the respondent says that claimant should have applied for.[34]Whilst the claimant did refer to the fact that the respondents have announced 4,500 job cuts, there was no evidence to demonstrate the lack of general stability in supermarket retail or retail more generally.[35]The claimant did not apply for roles within retail, similar to those she had previously held with the respondent, as she wanted stable future employment and considered that retail was a failing business and not a ‘safe option’. She was encouraged by recruitment agencies as a result to focus on HR due to her knowledge and experience. I found this evidence to be at odds with her other evidence, which I deal with below in relation to Polkey, and which I had accepted, that she would have remained at the respondent had she been provided the information she had requested.[36]I was not persuaded by the claimant that there was evidence to demonstrate why she could not longer continue in a career in retail, management or indeed retail management which may have enabled her to obtain alternative employment either earlier or at a similar level to that enjoyed by her at the respondent or which justified the change sought by the claimant from retail management to HR. There was no evidence from the claimant that the effect of the dismissal made her unwilling or unable to look for other retail management roles.[37]I found that the claimant chose to take the opportunity to explore other career opportunities in HR. I do not find, as was submitted by Mr Lassey that the claimant was forced to explore roles in HR. Polkey[38]In relation to issue of whether the claimant would have resigned/had her employment terminated in any event, the claimant still maintains that the changes to the Stock Manager role were ‘major’ as opposed to ‘minor’ changes. In light of this, the claimant was cross-examined on whether, had she been given the information she had requested at the time on the changes i.e. in the run up to March 2018, she would have resigned in March 2018 in any event. The claimant did not accept that this was the case, as had the information been given to her, she would have ‘given it a go’.[39]I accept the claimant’s account given today as accurate; it does fit with her earlier evidence. I cannot say with certainty that she would not have left in any event, but I can say that remaining at the respondent was more probable than not, and certainly at a very high level of probability, despite her misgivings on the retail sector more generally now that she is out of it.[40]Rather than find that her employment would have terminated in March/April 2018, I found that the claimant would, in respect of the new role, have ‘given it a go’, as she put it. ACAS Code[41]In relation to the arguments on failure to comply with the ACAS code, in light of my liability decision (in particular, but not limited to, that set out at paragraphs 45-48 and 85—95) in relation to the suspension, I further find that the respondent’s failure to comply with its own policy on suspension and in turn failure to review the suspension to be an unreasonable breach of the ACAS Code.[42]Whilst I found that the claimant’s first and second grievances were dealt with within a month of submission, a period that is in excess of the 7 / 14 day’ period indicated in the respondent’s grievance policy, I did not find that this was an unreasonable time period. I therefore did not consider that there had an unreasonable failure to follow the ACAS Code in relation to delays in grievance meetings.[43]I had no evidence before me to find that grievance meetings were rescheduled and did not find that there had been a failure to follow any aspect of the ACAS Code in this regard. The Law[44]I am required to consider the question of the claimant’s loss, under section 123 of the employment Rights Act 1996 which provides:(1) Subject to the provisions of this section and sections 124 and 124A, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.(2) The loss referred to in subsection (1) shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. 1. In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.[45]In Scope v. Thornett [2007] IRLR 155 the Court of Appeal guides me as to my need to engage in a certain amount of speculation in the appropriate circumstances in the words of Pill LJ at paragraph 34: “The employment tribunal's task, when deciding what compensation is just and equitable for future loss of earnings will almost inevitably involve a consideration of uncertainties. There may be cases in which evidence to the contrary is so sparse that a tribunal should approach the question on the basis that loss of earnings in the employment would have continued indefinitely but, where there is evidence that it may not have been so, that evidence must be taken into account.” And at paragraph 36 “The EAT appear to regard the presence of a need to speculate as disqualifying an employment tribunal from carrying out its statutory duty to assess what is just and equitable by way of compensatory award. Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and tribunals are very familiar with making predictions based on the evidence they have heard. The tribunal's statutory duty may involve making such predictions and tribunals cannot be expected, or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation.”[46]The guidance on consideration of chance in the context of an unfair dismissal claim is summarised in and principles emerge from Software 2000 Ltd v Andrews & Ors [2007] ICR 895 in that in assessing compensation ‘the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal’.[47]That requires the tribunal to assess for how long the employee would have been employed but for dismissal. If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively, would not have continued in employment indefinitely, it is for them to adduce any relevant evidence that they wish to rely on. However, we must have regard to all the evidence when making that assessment, including any evidence from the employee herself. There will be circumstances where the nature of the evidence which the employer wishes to adduce is so unreliable that the Tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made. Whether that is the position is a matter of impression and judgment for the Tribunal but in reaching that decision we must direct ourselves properly and need to recognise and have regard to any material and reliable evidence which might assist us in fixing just compensation, even if there are limits to the extent to which we can confidently predict what might have been. We must appreciate that there is a degree of uncertainty with that exercise.[48]The claimant must prove loss; the respondent must establish a failure to mitigate loss. In Wilding v British Telecom PLC [2002] EWCA Civ 349 Potter LJ said that five elements were to be considered in respect of the reasonableness of mitigation:(i) It was the duty of Mr Wilding to act in mitigation of his loss as a reasonable man unaffected by the hope of compensation from BT as his former employer;(ii) the onus was on BT as the wrongdoer to show that Mr Wilding had failed in his duty to mitigate his loss by unreasonably refusing the offer of re-employment;(iii) the test of unreasonableness is an objective one based on the totality of the evidence;(iv) in applying that test, the circumstances in which the offer was made and refused, the attitude of BT, the way in which Mr Wilding had been treated and all the surrounding circumstances should be taken into account; and(v) the court or tribunal deciding the issue must not be too stringent in its expectations of the injured party. I would add under (iv) that the circumstances to be taken into account included the state of mind of Mr Wilding. Conclusions Basic
Award
[49]The Basic Award will be based on calculation of gross week’s pay as defined in s.220 to s.229 Employment Rights Act 1996 capped at £508 and a multiplier of 22 will be applied (which was also agreed between the parties to be the appropriate multiplier) taking into account the claimant’s age at termination (45) and length of service (20 years).[50]The Basic Award is therefore calculated at £11,176.00. Compensatory Award Financial Losses[51]I concluded that it was just and equitable to award the claimant a compensatory award based on: 51.1. loss of earnings calculated at the rate of net pay of £496.35 per week (as claimed by the claimant); 51.2. loss of employer pension contributions at the rate of 7.5% in the sum of £38.10 per week; and 51.3. loss of Colleague Clubcard / Staff discount in the sum of £6.00 per week.[52]As a result of my findings in relation to the Share Scheme, I do not consider that the claimant is entitled to any compensation in respect of any losses suffered arising out of the Share Scheme. Mitigation49. I am of the view that I should restrict the claimant’s losses to a period of 33 weeks i.e. losses to the 1 April 2019 being the date that she commenced employment in HR with Rhondda Cynon Taf. I do not conclude that the losses should be limited to 17 February 2019 as has been submitted by the respondent. I have no evidence from the respondent to support the submission that the claimant would have obtained suitable alternative employment at that date.50. I did not conclude that the claimant had acted reasonably in taking the lower-paid HR work and further concluded that this was a failure by the claimant to take reasonable steps to mitigate or minimise her losses. There was no evidence of high level of unemployment in the retail sector or that the claimant was forced to look in HR, that justified acceptance of lower paid employment at entry level HR.[53]Having found and concluded that the claimant’s decision to embark on a new career in HR was not a reasonable act of mitigation, I have concluded that the claimant is not entitled to compensation from 1 April 2019, being the date that she commenced employment at Rhondda Cynon Taf and/or ceased looking for other alternative work. The claimant’s acceptance and commencement in employment in this role broke the chain of causation.[54]In any event, the commencement of this employment was an intervening act relieving the respondent of any further liability for the claimant’s losses. Polkey[55]As I have found that I it was not likely that the claimant would have resigned in any event in March/April 2018. I conclude, that having been given the information she sought on the new Stock and Compliance role, the claimant would have tried out the role and would not have readily left a job she had loved in an organisation that she had worked in since 1989.[56]In my judgment, there was no real evidence which could lead me to conclude that the claimant would have resigned in any event in March/April 2018 from a job she stated that she loved, and from an organisation that she had worked in for 29 years.[57]I therefore do not accept that there was any reduction for the percentage chance that the claimant would have resigned or been dismissed in any event had the respondent’s acted fairly ACAS Uplift[58]In relation to the ACAS uplift, as the Code makes clear in cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action. In light of my liability findings, I concluded that there should be an uplift in respect of the respondent’s breach of the ACAS Code in relation to suspension.[59]I considered this to be a significant breach of the Code and for that element alone considered that an uplift of 25% was appropriate.[60]I therefore award the claimant losses from the date of termination to 1 April 2019 (33 weeks) in the sum of 60.1. £13,504.59 for loss of salary, 60.2. £1,257.30 for loss of employer pension contributions and 60.3. £198.00 for loss of Colleague Clubcard/ Staff discount.[61]Further I concluded that the claimant was entitled to compensation for loss of statutory rights and I awarded the sum of £500.00. I did not consider it just and equitable to award an element in respect of loss of notice rights.[62]Due to the failure by the respondent to comply with the ACAS Code in relation to the suspension I increase the compensatory award by 25% which amounts to a further £3,864.97[63]In total therefore with the basic award I order the respondent to pay to the claimant the sum of £30,481.56.