Mrs E Thompson v J & Y Webber Services Ltd: 1806784/2022
EMPLOYMENT TRIBUNALS
Case No 1806784/2022
Between
Mrs E ThompsonClaimantJ & Y Webber Services LtdRespondent
Before
Employment Judge MaidmentMr J Flaherty (instructed by Counsel) for claimantDate 26 April 2023
JUDGMENT
[1]The claimant was dismissed and her claim of unfair dismissal is well founded and succeeds.[2]As compensation for unfair dismissal, the respondent is ordered to pay to the claimant the total sum of £14,594.38 (comprised of a basic award of £3,977 and a compensatory award of £10,597.38).[3]The Recoupment Regulations do not apply to this award. JUDGMENT having been sent to the parties dated 26 April 2023 and written reasons having been requested by the respondent in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
Issues
[1]The claimant’s sole claim in these proceedings is of unfair dismissal, reliant on there having been a constructive dismissal. The claimant says, firstly, that she entered into a contract to work in the role of Yorkshire Manager, but that this role was removed from her without agreement or consultation on or around 30 May 2022. Secondly, it had been agreed that she would work in this role from home, but in fact she had to continue working from the Scarborough office. For these reasons, the claimant maintains that there was an express breach of her contract of employment.[2]She also says that the respondent’s conduct amounted to a breach of trust and confidence. In particular she relies upon her having been given a false impression that she could take up the Yorkshire Manager role in order to prevent the claimant’s initial resignation in October 2021 taking effect, that she was informed of the presence of team members of the introduction of a new role of operations manager in early May 2022 which caused the claimant embarrassment, that the claimant was not considered for that new role and that the respondent continued to attempt to mislead the claimant by making a vague promise of considering her for a training and compliance manager role in September 2022. She says that a last straw was her being told on 30 May 2022 that her Yorkshire Manager role would be removed from her and she would have to wait until at least September 2022 for confirmation of a potential new management role. Evidence[3]The tribunal had before it an agreed bundle of documents of 136 pages. Having privately read into relevant documentation and witness statements exchanged between the parties prior to the hearing, the tribunal was able to commence hearing live evidence after clarifying the issues between the parties.[4]The tribunal heard firstly from the claimant. Then, on behalf of the respondent, the tribunal heard from Mr Stephen Watters, head of HR and Victoria Webber, director.[5]Having considered all relevant evidence, the tribunal made the factual findings set out below. Facts[6]The claimant had continuous employment with the respondent from 15 June 2015. The respondent operates a domiciliary care business through a number of franchises it holds. By October 2021 the claimant worked as registered manager at its Scarborough branch. She was also the person registered with the CQC for the purpose of compliance with statutory regulations regarding the provision of care. Reporting to her were a care coordinator responsible for customer rotas and visits, a supervisor who acted as the point of contact for care staff and customers and an office manager. The claimant reported to the respondent’s directors Victoria and John Webber. However, John Webber stepped back from his involvement in the business. The claimant also regularly liaised with Mr Watters as head of HR. Becky Moore acted as training and compliance manager across the business following a period of employment as registered manager at the respondent’s Lincoln branch.[7]A separate branch was located in Harrogate, with its own registered manager Sam Mortimer. Further branches operated out of Lincoln, Cleethorpes and Grantham, with a single registered manager responsible for them.[8]The claimant raised at an appraisal in September 2021 with Mrs Webber and Mr Watters that she felt under significant pressure due to the number of care packages being fulfilled against the number of care workers available. The claimant expressed a feeling of failure despite everything she was doing to alleviate the situation and constant worry about how to overcome challenges when she said she was already giving everything. The respondent did not then raise with the claimant the possibility of reducing the number of care packages.[9]On 12 October claimant sent an email to the respondent resigning from her employment. She said that, following her appraisal, she felt that her values did not align with those of the business and that targets set were unachievable under the current circumstances. She expressed the need to achieve growth in a safe manner with the respondent’s reputation and registration with CQC paramount to her. She referred to working endless hours and constant pressure. The claimant had been carrying out a significant amount of care work directly herself to meet the demand on care services.[10]Mr and Mrs Webber hoped to retain the claimant and put to the claimant the possibility of her remaining in a newly created role of Yorkshire Manager. The intention was to take the claimant away from care work, day to day operational management and for her to undertake a more strategic role overseeing both the Scarborough and Harrogate areas, ensuring that common compliance, care and safety standards were met across the branches. The respondent was at this time hoping to acquire 2 further franchises in York and Hull which it was intended that the claimant would also oversee as part of this higher level role and where, prior to those acquisitions, a newly appointed registered manager at Scarborough as well as Mrs Mortimer would report into her. Certainly, it was not anticipated that the claimant would become involved herself in direct care work.[11]Mr Watters drew up a contract of employment for the new Yorkshire Manager role with a commencement date of 18 January 2022 as well as a job description describing the purpose of the role as to provide management and leadership on behalf of the directors to all units in the Yorkshire area. The role was said to include formulating business development plans, to set standards, optimise efficiency, ensure regulatory compliance, manage staff and assist in decisions for expansion or acquisition. The claimant’s salary was to increase by £2000 to £38000 per annum.[12]Following discussions, the claimant decided to accept this new role and rescind her resignation. Those discussions had included the preparation of a transition plan sent by Mr Webber to the claimant on 7 December 2021. This envisaged that there would be an internal appointment of a new registered manager for Scarborough and that by March 2022 the claimant would deregister as the legally registered manager and work from home.[13]Stephanie Walker was appointed as the new registered manager at Scarborough. She had been working as the branch’s care coordinator. It was envisaged that she would learn the role of registered manager under the claimant’s supervision prior to a formal transition of roles for both Mrs Walker and the claimant at the end of March 2022.[14]The reality of the situation was that the claimant did not undertake any material part of the role of Yorkshire Manager during the first 3 months of 2022 (or indeed thereafter). She was not involved in any setting of business development strategy. She did not visit or oversee the Harrogate branch. Mrs Mortimer on occasions called the claimant for advice, but that was no different to the situation when the claimant had been employed simply as another registered manager. The claimant had trained Mrs Mortimer when Mrs Mortimer had been new to the role in Harrogate. There was no criticism of the claimant in this period for her continuing involvement in effectively the registered manager duties in Scarborough. This was in circumstances indeed where Mrs Walker had not been replaced as care coordinator and there was a continuing requirement for those duties to be performed - at least to a substantial degree either by Mrs Walker or indeed the claimant. The claimant continued to carry out a significant number of caring services for customers and indeed this continued throughout her period of employment. She did this due to a lack of other available staff and in circumstances where she did not feel able to reduce the number of care packages provided by the Scarborough branch. The tribunal accepts that any decision in this regard would have had to have been taken to the directors, who themselves took no steps to reduce the care work serviced out of the Scarborough branch.[15]Unfortunately, Mrs Walker did not show the progress required for her to be able simply to take over the claimant’s registered manager duties. On 10 April Mrs Walker’s employment was terminated for gross misconduct.[16]Whilst the transition plan had envisaged the claimant being de-registered as manager by the end of March 2022, no steps were taken to do so. Whilst Mr Webber remained the nominated person with CQC and could have taken over the registration himself directly as an emergency measure, the claimant remained as the responsible person for the Scarborough branch. The respondent suggests that the claimant could have initiated the dual registration of Mrs Mortimer for both Scarborough and Harrogate. The claimant was not aware of any ability to take such steps and indeed it is clear from Mr Watters evidence that this would have involved the need to formulate a business plan to be presented to the directors, which would inevitably have involved an additional cost in compensating Mrs Mortimer for additional travel time and rewarding her for additional responsibilities. This would have been a director level decision. The directors themselves did not consider such a restructure at that time to potentially free up the claimant to perform her higher level duties as Yorkshire Manager.[17]After Mrs Walker’s departure, the claimant continued working as the Scarborough registered manager, with still no new care coordinator in place and no firm proposal for the appointment of a new registered manager. Again, the claimant was not criticised or questioned regarding not taking any further steps to free up her time to carry out the higher level Yorkshire Manager role.[18]The tribunal notes that the Scarborough branch was struggling financially during 2022 and failing to break even.[19]Mrs Webber spoke to the claimant in May asking her to continue to hold the registration for Scarborough until Mrs Webber had come up with a different plan. There was no one else they had in the business in a position to take over that role. Certainly, again, the respondent did not consider at this time giving Mrs Mortimer Scarborough as part of a dual registration. Mrs Webber agreed in cross examination that no one was actually fulfilling the role of registered manager at Scarborough, on her case, if not the claimant. Mrs Webber said that she appreciated that the claimant had not wanted to do this role any longer, hence the creation of the new Yorkshire Manager role to keep her in the respondent’s employment.[20]The respondent has been unable to give to the tribunal examples of tasks the claimant undertook as part of her Yorkshire Manager role as distinct from what she had done and continued to do as registered manager. All that could be said on behalf of the respondent was that there was degree of overlap between the two roles. Mrs Webber could simply point to the claimant discussing KPIs of both Harrogate and Scarborough prior to her leaving employment and after the appointment of an operations manager above her, as will be explained. She agreed that the claimant had not been involved in creating any strategic plan for Scarborough and Harrogate.[21]By this time, the prospect of acquiring the Hull and York franchises had disappeared. The respondent continued with the Lincoln and Grantham branches operating under a single registration and the Grimsby branch under a separate registration but with one single registered manager for the Lincolnshire branches and a number of deputies. There had never been any equivalent in Lincolnshire to the Yorkshire Manager position. The respondent, however, in April decided to create a new role of operations manager with oversight of all of the Yorkshire and Lincolnshire branches to whom the claimant as Yorkshire Manager would report, with the operations manager, not the claimant, having a direct reporting line to the directors. Mrs Webber told the tribunal that she recognised some overlap between the Yorkshire Manager and operations manager roles because the operations manager would oversee everyone. She rejected the proposition, however, that, with an operations manager in place, the position of Yorkshire Manager would be obsolete.[22]In early May 2022 Mrs Webber held a team KPI meeting at which it was announced that the new operations manager role had been created and that that person would be leading the weekly KPI meetings. The claimant believed, on hearing this, that the role was practically the same as her own with essentially an experienced care manager to operate above the registered managers and below director level. The only difference to her was that the Yorkshire Manager role was to oversee the Yorkshire branches only, whereas the operations manager would oversee all branches. The claimant felt humiliated given the implication of the restructuring as effectively a form of demotion for her.[23]The claimant met with Mrs Webber on 30 May. The claimant’s evidence is that Mrs Webber confirmed that the introduction of the new operations manager role would mean there was no longer a need for the Yorkshire Manager role. Her evidence was that Mrs Webber said that Rebecca Moore, previously the training and compliance manager, had been promoted to the role and the claimant said that she was told that Ms Moore took risks and got things done. The claimant said that she was told that her own strengths were in compliance and that she should consider taking the role of training and compliance manager. This role would be considered for the claimant in September 2022 as the business could not afford to pay another manager’s salary at this time and the claimant would be required to continue as registered manager for Scarborough until September 2022.[24]Mrs Webber denied telling the claimant that the operational manager would include the Yorkshire Manager’s responsibilities. She maintained that the Yorkshire Manager role was never taken away. The operational manager was intended to work above the claimant and would oversee all branches. She said that she did not offer the training position to the claimant, but rather mentioned that, in the long-term planning of her career, training and compliance were the claimant’s strengths.[25]The tribunal, on balance, does not consider it likely that, in the situation that the respondent in Scarborough was not breaking even financially, it was proposed that an additional layer of management be added which, at the very least, would involve an amount of duplication of responsibilities in respect of the claimant’s Yorkshire Manager position, if that Yorkshire Manager role was to continue in respect of the Scarborough and Harrogate branches. Given that Ms Brookes had, by her promotion, left a substantive role of training and compliance manager vacant, the tribunal struggles to accept that training and compliance was raised only as additional duties which the claimant could perform as part of her continuing position. When put to Mrs Webber that she had said that the respondent would consider the claimant for the training compliance role in September 2022, Mrs Webber said that she didn’t say that “at that meeting”. On her account the role was mentioned only after the claimant, as will be described, notified the respondent of her resignation in an attempt to preserve the claimant in her employment. There does not appear to have been any attempt to convince the claimant that the Yorkshire Manager role remained.[26]The claimant emailed Mr and Mrs Webber on 11 June 2022 resigning with 6 weeks’ notice with an effective leaving date of 22 July 2022. She said that she had continued as registered manager for 8 months despite having resigned from that post and signed a new contract for the role of Yorkshire Manager on 24 January 2022. 6 months down the line, nothing had changed. She said that she had only remained with the respondent because of the offer of the new role commencing in April 2022 but this had now been filled by another employee with Mrs Webber’s position made clear during their meeting on 30 May. She said that she would not continue as registered manager for the next 4 months and beyond waiting for a decision to be made on her future employment. The tribunal notes that the respondent at no point responded contradicting this version of events.[27]In all such circumstances, the evidence of the claimant as to what she was told is preferred.[28]The claimant indeed worked out her period of notice. During that period Mrs Mortimer took up a dual registration as registered manager for both Harrogate and Scarborough from 26 June 2022. Since the claimant left the respondent, the head of operations position has continued with new appointments to a position of business development manager and another individual focusing on quality. Applicable law[29]In order to bring a claim of unfair dismissal an employee must have been dismissed. In this regard the claimant relies on Section 95(1)(c) of the Employment Rights Act 1996 which provides that an employee is dismissed if she terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate without notice by reason of the employer’s conduct. The burden is on the claimant to show that she was dismissed[30]The classic test for such a constructive dismissal is that proposed in Western Excavating (ECC) Ltd v Sharp 1978 IRLR 27CA where it was stated: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employer is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover he must make up his mind soon after the conduct of which he complains; or, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract”.[31]The claimant also asserts there to have been a breach of the implied duty of trust and confidence.[32]In terms of the duty of trust and confidence, the case of Mahmud v Bank of Credit and Commerce International 1997 IRLR 462 provides guidance clarifying that there is imposed on an employer a duty that he “will not without reasonable and proper cause conduct himself in a manner calculated [or] likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee”. The effect of the employer’s conduct must be looked at objectively.[33]The Court of Appeal in the case of London Borough of Waltham Forest v Omilaju 2004 EWCA Civ 1493 considered the situation where an employee resigns after a series of acts by the employer. The claimant brings her case, in the alternative, on such basis.[34]Essentially, it was held by the Court of Appeal that in an unfair constructive dismissal case, an employee is entitled to rely on a series of acts by the employer as evidence of a repudiatory breach of contract. For an employee to rely on a final act as repudiation of the contract by the employer, it should be an act in a series of acts whose cumulative effect is to amount to a breach of the implied term of trust and confidence. The last straw does not have to be of the same character as the earlier acts, but it has to be capable of contributing something to the series of earlier acts. There is, however, no requirement for the last straw to be unreasonable or blameworthy conduct of the employer, but it will be an unusual case where perfectly reasonable and justifiable conduct gives rise to a constructive dismissal.[35]If an employee was constructively dismissed, it remains open to an employer still to seek to advance a potentially fair reason for dismissal. None has been put forward by the respondent, in the alternative, in this case.[36]Applying the legal principles to the facts as found, the tribunal reaches the conclusions set out below.
Conclusions
[37]The sole claim in these proceedings is of unfair dismissal in circumstances where the claimant resigned from her employment on 11 June 2022. For the claim to succeed, the claimant must prove that she resigned in response to a fundamental breach of contract. That is a high hurdle. The respondent’s actions must essentially evince an intention no longer to be bound by an essential term of the contract of employment.[38]The claimant relies on a breach of an express term reliant on her agreement with the respondent to work as Yorkshire Manager. The claimant was, however, at all material times employed under a contract of employment which conferred on her that job title and a commensurate increase in salary compared to her previous role as registered manager of Scarborough. While she was, on the tribunal’s findings, informed on 30 May that she would not effectively retain such role in the future, the claimant’s case is primarily based on a breach of the implied term of trust and confidence.[39]That term is breached when an employer, without reasonable or proper cause, acts in a way which is intended to or, viewed objectively, has the effect of destroying trust and confidence. The tribunal does not consider that the respondent deliberately set out to undermine the claimant. In fact, there is much evidence of the claimant being highly regarded and viewed by the respondent as an asset.[40]The situation is nevertheless one where the claimant was persuaded to retract her resignation on the basis of her assuming a new, more senior, position, which would reduce the pressures on her and where the claimant was significantly stressed by what she saw as a firefighting operation to service clients with quality care against a background of a difficulty in recruiting and retaining carers. The tribunal accepts that she could not remove herself from day to day hands on involvement in the Scarborough branch until a new registered manager was in place and to that end continued substantively performing the duties of registered manager during a transition period for the training of Mrs Walker up to the required standard to take over. Unfortunately, that plan did not work and Mrs Walker left the respondent’s employment. Had the plan worked, then the claimant may well have been able to start defining her Yorkshire Manager role and working more strategically including predominantly from home.[41]The claimant then, from April 2022, accepted that the respondent needed further time to find a new registered manager. It was only when that new appointment could be made that the claimant could perform the duties of Yorkshire Manager and find relief from the pressures she was seeking to escape. Otherwise, the Scarborough branch was left without a registered manager and a care coordinator, the position which Mrs Walker had previously held. Had the solution then been to give Mrs Mortimer a dual registration covering both the Harrogate and Scarborough branches, this would have been initiated by the respondent at director level. It is not a solution which reasonably lay within the claimant’s decision-making powers and is not one which, unsurprisingly, occurred to her. With the lack of management in place at the Scarborough branch at this point in time it is, in any event, unlikely to have freed the claimant up to allow her to perform the Yorkshire Manager role.[42]The claimant then was prepared to allow the respondent further time to come up with a plan. She continued to undertake the responsibilities of registered manager and again to provide direct care to customers in circumstances of a lack of available staff.[43]No plan emerged from the respondent in period from April 2022. The potential acquisitions of Hull and York, which might have assisted in creating a meaningful Yorkshire Manager role, fell through. It then became clear to the claimant, certainly on 30 May, that a meaningful role under the job title of Yorkshire Manager was unlikely to exist. Whilst such role indeed had a detailed job description attached to it, that job description had not been indicative of the claimant’s responsibilities and the evidence before the tribunal is of a still ill-defined position with unclear demarcations of responsibility. The role would have become more defined over time had the claimant being allowed to develop it, but there had been no opportunity for this to occur. The addition of an operations manager to oversee the claimant’s oversight of just 2 branches was a demotion of the claimant which would involve little change in the claimant’s responsibilities compared to when she operated under the job title of registered manager. She would no longer report directly to the directors.[44]In any event, the tribunal’s findings are that the claimant was told that the Yorkshire Manager position as it had been envisaged would not continue, prompting exploration of the claimant undertaking training and compliance responsibilities, indeed potentially that stand-alone role, as an effective alternative to the registered manager responsibilities she was, in reality, still undertaking for Scarborough. The respondent was seeking to retain the claimant. Whilst those attempts may well have been genuine, the situation had developed such that the claimant no longer had trust in the respondent relieving her from the onerous duties which had caused her initial resignation on 12 October 2021. The promise of the Yorkshire Manager role had come to nothing substantive.[45]Trust and confidence was indeed, viewed objectively, destroyed and the claimant resigned in response to the respondent’s failure to honour its promise that the claimant would undertake alternative duties. She did not delay in resigning so as to have affirmed the contract of employment. The claimant was, therefore, dismissed. In circumstances where the respondent has not sought to argue that the claimant was dismissed for a potentially fair reason, the claimant’s dismissal was unfair. The complaint of unfair dismissal succeeds.
Remedy
[46]The claimant was recalled to give further evidence the question of remedy. The tribunal also allowed the respondent to rely on additional documentation, not previously disclosed, of positions available in the locality which it submitted the claimant ought reasonably to have applied for. These included roles as registered manager of care homes and other care providers.[47]The claimant confirmed the accuracy of her schedule of loss. There was no dispute regarding the information contained within it and the basis of the calculation of the claimant’s basic award and loss of earnings. The claimant had commenced alternative employment from 27 July 2022 which represented a net weekly loss of wages of £187.73 together with a loss of pension contributions. The claimant was seeking future loss of earnings beyond the date of the tribunal hearing for a period of 12.3 weeks. The agreed basis of calculation produced a total compensatory award of £10,597.38, including £400 for loss of statutory rights and a basic award entitlement of £3977, based on 7 years’ service under the age of 42 and a gross weekly salary capped at the applicable maximum for a week’s pay of £571.[48]The dispute between the parties was on the question of whether the claimant had taken reasonable steps to mitigate her loss. The claimant was indeed under a duty to take reasonable steps to mitigate her loss. If she had failed to take such steps the compensatory award should be reduced so as to cover only those losses that would have been incurred even if the employee had taken the appropriate steps. The tribunal’s focus must be on the claimant’s particular circumstances. The onus of showing a failure to mitigate lies on the employer.[49]The claimant’s new employment was as a full-time tutor/assessor for health and social care qualifications up to registered manager level. The claimant had not sought or applied for any registered manager vacancies of care homes or other care providers. She said that that was the exact role she had resigned from twice. Due to the impact of such a position on her physical and mental health it was not a role which she had wished to continue in with the respondent or go back into, hence her decision to remain with the respondent in the Yorkshire Manager position. She said that the care sector was in crisis in terms of recruitment difficulties and no new employer she believed was in a position to guarantee that she would not have to have become involved in care work, for instance, in circumstances of staff shortages. If the claimant had not been constructively dismissed by the respondent, she would have continued in the Yorkshire Manager role. She had considered a career in education for years but was not actively considering a career change when with the respondent.[50]The claimant said that when she had looked for work she had seen a number of available roles as registered manager and very many roles for care workers but none for a more senior manager in the type of role she had hoped she would have undertaken as Yorkshire Manager – her contracted role with the respondent. There was no evidence of vacancies of such roles before the tribunal. The claimant was of the view that she would have struggled in any application for such a role as she did not in fact, because of the respondent’s treatment of her, have any experience as a Yorkshire or regional manager. She had decided to use her many years of experience in the care sector in a relevant role as a tutor. The claimant hoped that she would be able to progress in this role. When she had started as a tutor, she did not have teaching qualifications but had now attained both those and relevant experience and might now be able to progress to assess other assessors and potentially a role in an organisation such as the CQC, although she had not as yet seen any CQC inspector roles or equivalent advertised.[51]The claimant’s evidence is accepted.[52]The tribunal concluded that there was no evidence of high-level management roles being available to the claimant of a similar or equivalent nature to her position with the respondent as Yorkshire Manager. The claimant might have failed to take reasonable steps to mitigate her loss had she not applied for such a role. However, it would not have been reasonable to expect the claimant to apply for any of the registered manager roles available in domiciliary care or in a care home. That is the type of role the claimant had still been required to undertake with the respondent in circumstances where she was desperate to relinquish hands-on day-to-day responsibility in a role where she might still have become involved in direct care. As a registered manager of any such business, in the context of a crisis of recruitment in social care, that was very likely and the need to work in a pressurised day-to-day environment almost inevitable. That was a type of role incompatible with the claimant’s good physical and mental health. Again, the need to do such duties, which she had been promised she would not have to do as Yorkshire Manager, was the reason for the claimant’s constructive dismissal.[53]The claimant had then not acted unreasonably in seeking a role of tutoring in the health and social care sector, a role which used her knowledge and which gave her prospects of progression. The respondent is fortunate indeed that the claimant achieved such position so quickly. The claimant’s losses up to the date of the hearing are therefore reasonable as is a period of continuing loss claimed of 12.3 weeks. The tribunal has no basis for concluding that the claimant could have fully mitigated her continuing loss in that brief period following today’s hearing. Compensation for loss of statutory rights is reasonably claimed in the sum of £400. Again, no dispute is raised as to the claimant’s calculations in the schedule of loss and the calculations, in particular, referred to above of the applicable basic and compensatory award if the claimant was found to have taken reasonable steps to mitigate her loss which the tribunal concludes she indeed had.