Ms D Sosin v Albion Financial Advice Services Ltd and Albion Financial Advice Ltd: 1806037/2018
JUDGMENT
[1]The complaint of breach of contract (notice pay) succeeds as against the First Respondent.[2]The First Respondent is ordered to pay to the Claimant damages in the net sum of £1,083.31.[3]The complaint against the Second Respondent is dismissed on withdrawal by the Claimant. JUDGMENT having been sent to the parties on 9 August 2018 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]By her Claim Form the Claimant complained that the Respondent acted in breach of her contract of employment when dismissing her without notice or without making any payment in lieu of such notice. By its Response the Respondent contended that it dismissed the Claimant by reason of her gross misconduct. Issue[2]The Employment Judge identified that the following issue had to be determined:- was the Claimant’s conduct so serious that the Respondent was entitled to dismiss her without notice? Hearing[3]At the outset, Mr Wood confirmed that the Claimant withdrew her complaint against the Second Respondent and that Claim was dismissed on withdrawal by the Claimant. The Claimant gave evidence on her own behalf. Mr Dariusz Karpowicz, managing director, gave evidence on behalf of the first Respondent. The Employment Judge also considered a bundle of documents. Facts[4]The Employment Judge found the following facts proved on the balance of probabilities:-4.1 On 6 February 2017 the Claimant was employed by the Second Respondent. On 1 April 2007 her employment was transferred to the First Respondent. She worked as a mortgage administrator.4.2 Three other people worked on the premises with the Claimant:- Mr Karpowicz, another employee, and another person probably working in another capacity. The First Respondent provided financial advice on mortgages and insurance products.4.3 At about 9am on 6 February 2018 the Claimant telephoned and told Miss Baska, the Manager, that she wasn’t coming into work because she had an emergency dental appointment. Miss Baska did not raise any concerns about the absence. In particular, she did not say that the Claimant would need to make up her hours.4.4 On 7 February 2018 the Claimant returned to work. Miss Baska told her that she needed to make up the hours which she had lost the previous day. She told the Claimant that she had to work ten hours over the next four working days. The Claimant refused.4.5 By an email dated 7 February Mr Karpowicz informed the Claimant:- “Hi, yesterday’s day off slows down the company and it had not been authorised in advance. I therefore would like you to make up the hours by working 2 hours longer over the next 3 days and 1.5 on the 4th day”.4.6 By an email of the same date the Claimant informed Mr Karpowicz:- “It was not a day off to me., it was an emergency dentist appointment, unplanned and so I let the office know about the whole situation in the morning as soon as the office was opened”.4.7 By an email of the same date Mr Karpowicz informed the Claimant:- “I think that our cooperation has not been going so well especially recently and I simply want you to work the hours. If you are saying absolutely no then I have to think about taking other steps”.4.8 By an email of the same date the Claimant informed Mr Karpowicz:- “I cannot help the fact that I have such problems with my teeth and that I have to go the dentist’s a lot”.4.9 By an email of the same date Mr Karpowicz informed the Claimant:- “Of course not that’s why there is an option to make up the hours of absence. There is no other option anymore due to the fact that there has been a lot of such incidents over the last 3 months”.4.10 By an email of the same date the Claimant informed Mr Karpowicz:- “Well yes I was ill for a few days, you yourself told me not to come to work with a cough and now I am to work all these hours”.4.11 By an email of the same date Mr Karpowicz informed the Claimant:- “No yesterday’s day Only”.4.12 By an email of the same date the Claimant informed Mr Karpowicz:- “but yesterday I was “ill” too and that’s why I did not come, I chipped my tooth on Monday at 10pm and I was in pain, on Tuesday morning I called work and said that I would not come as I had an emergency appointment at the dentist’s and I explained what was going on. I do not know what this is about do you think that I did not go to the dentist at all?”.4.13 By an email of the same date Mr Karpowicz informed the Claimant:- “I do not think that. There is simply such a percent of absences that over the next 3 months we do not agree to it but they must be worked in exchange”.4.14 On 8 February 2018 the Claimant worked normally.4.15 On 9 February 2018 the Claimant attended a meeting which was conducted by Mr Karpowicz. Miss Baska was also present. Mr Karpowicz told the Claimant that she was dismissed because she hadn’t worked the additional hours or wasn’t prepared to work the additional hours. He gave her a letter of dismissal which stated:- “I am writing to confirm that, following the disciplinary hearing held on 09/02/2018, and in view of the seriousness of this matter, it has been decided that your employment with Albion Financial Advice Services Ltd should be terminated for gross misconduct without notice and without any warnings …”. The meeting ended shortly afterwards and the Claimant left the premises approximately twenty minutes later. She was paid for the whole of that day.4.16 By a letter dated 17 February 2018 the Claimant appealed. The First Respondent did not reply. Submissions[5]Mr Wood made submissions on behalf of the Claimant. Mr Karpowicz made submissions on behalf of the First Respondent. Where appropriate reference to those submissions will be made in the Discussion section of these Reasons.Discussion
[6]The First Respondent contended that the Claimant’s refusal to comply with a reasonable instruction constituted gross misconduct. Mr Karpowicz submitted that her refusal damaged the Company’s confidence in her, that there was, in his words, “Nowhere to go if the Claimant refused to carry out instruction. The Claimant failed to explain why she couldn’t work the extra hours and she also failed to even offer to make up those hours at some other time.”[7]The Employment Judge accepted the Claimant’s evidence in its entirety. He found that she was an entirely truthful witness. He found that Mr Karpowicz exaggerated his evidence, particularly when he was discussing the refusal’s effect on the First Respondent and the negative impact on the team. There was no evidence to corroborate his assertion as to the negative impact. The Employment Judge found that Mr Karpowicz was annoyed by the number of absences that the Claimant had in the period before 6 February 2017. He decided to tighten up processes to ensure that she attended on a more regular basis and he decided to ask her to make up the hours with very little notice. In the Employment Judge’s judgement, that was not a reasonable instruction. He had no contractual power to make the request. It was not a reasonable request to make because he had not previously requested her to do that. Her previous absences were entirely genuine and some were even encouraged by Mr Karpowicz so as to avoid the Claimant spreading any illness to other employees.[8]The Employment Judge decided that arguably the Claimant’s absence on 6 February 2018 could have caused some negative impact to the business. Clearly when somebody is away from work for a day, the work is not done and it is possible that on that day other colleagues had to take calls from the Claimant’s clients. However, on her return to work the Claimant continued her work for her clients. There was no evidence to suggest that there was any serious negative impact on the team. It was just one day’s absence. In my judgement if an employer makes an unreasonable request, an employee is entitled to refuse that request. That is what the Claimant did. She did so in a calm, normal way. Clearly she was upset that she had been asked to make up the hours but there was no evidence to support the contention that she shouted when she refused. There had been no previous problem with her work or her attitude. The Employment Judge found and decided that there was no proper cause for any adverse impact on her relationship with the First Respondent. The First Respondent could reasonably have managed these absences in another perfectly lawful way. For example it could have given her a warning or it could have given her a warning that, if there were further absences, attendance might have to be managed in a way which ultimately might lead to some disciplinary sanction. The Respondent did not take that course of action.[9]The Employment Judge found and decided that the Claimant was not guilty of gross misconduct. The First Respondent was not entitled to dismiss her without notice. It therefore acted in breach of her contract of employment when dismissing her and when failing to make any payment in lieu of such notice. Her complaint succeeded. The Claimant was entitled to be paid for the period of notice set out in her contract of employment, namely one month. If she had been given that notice, she would have been paid £984.83 as a net figure for that period.[10]The Employment Judge also considered the Respondent’s failure to hold an appeal hearing. In his judgement that failure was unreasonable. Another person could reasonably have been asked to conduct an appeal and that person might have taken a different view of the alleged misconduct. There was no wholesale disregard of the ACAS Code. The Claimant was called to a meeting and there was a meeting before the decision was given. She was given reasons in a 2 page letter. Some process was followed but the ACAS Code was not followed in its entirety. In those circumstances it was just and equitable to increase the award by 10 per cent, namely a further amount of £98.48. Accordingly the Employment Judge ordered the First Respondent to pay to the Claimant damages in the net sum of £1,083.31.