Ms H R Poveda v MAR Facilities Support Services Ltd: 2215789/2023

EMPLOYMENT TRIBUNALS

Case No 2215789/2023

Between

Ms H Rojas PovedaClaimant

MAR Facilities Support Services LtdRespondent

Before

Employment Judge Woodhead

Ms N Webber (instructed by Counsel) for respondent

Date 27 March 2025

JUDGMENT

[1]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.

[2]The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed.

[3]The complaint in respect of holiday pay is well-founded. The Respondent failed to pay the Claimant in accordance with regulation 14(2) and/or 16(1) of the Working Time Regulations 1998.

REASONS

[4]The Claimant brings claims of unfair/constructive dismissal (there is a dispute as to whether she resigned or was dismissed), protected disclosure detriment and Case Number: 2215789/2023 2 of 72 holiday pay (dependent on determination of the effective date of termination).

[5]I conducted the first preliminary hearing in the claim on 23 January 2024 and the List of Issues was concluded at a second preliminary hearing conducted by Employment Judge Elliott on 8 April 2024 (the “Second CMPH”). The agreed List of Issues appears in the appendix to this judgment.

THE HEARING

[6]This claim was listed for a hearing of six days (liability only) at the Second CMPH. It had been listed to be heard with non-legal members but because of the lack of availability of non-legal members, REJ Freer determined that it should proceed with a judge sitting alone.

[7]At the start of the hearing I was provided with:7.1 A hearing bundle of 556 pages [HB].

7.2 A supplementary bundle of 40 pages [SB]

7.3 A bundle of witness statements totalling 103 pages [WSB] and including witness statements for:7.3.1 The Claimant totalling 75 pages [CWS]

7.3.2 Ms Bruna Rojas (the Claimant’s daughter) totalling 14 pages [RBRWS]

7.3.3 Ms Carolyn Banks (HR Advisor at the Respondent) totalling 6 pages. [CBWS]

7.3.4 Ms Joanne Jupp (Head of Operations at the Respondent) totalling 8 pages [JJWS]

7.4 An introductory note prepared by the Respondent which included:7.4.1 Cast List – the Claimant agreed this but made clear that some secondary characters were missing from it [CL]

7.4.2 Chronology – the Claimant agreed this after some discussion about the calculation of the date before which claims might have been out of time (8 June 2023)

7.4.3 Proposed trial timetable.

[8]On the first morning (7 January 2025) an interpreter was not available but the Claimant, with the support of her daughter, was happy to have a discussion about preliminary matters without an interpreter. The Claimant’s daughter speaks English well. The Claimant confirmed that she understood what was being discussed and she asked if at any point she wanted to clarify a matter with her daughter. We discussed the tribunal process to make sure everyone was clear on what needed to happen. We had a detailed discussion and reached agreement Case Number: 2215789/2023 3 of 72 on the timetable (including time allowances for cross examination, my questions and re-examination). It was agreed in that discussion that the interpreter would be needed to translate the Claimant’s responses to questions but that for other parts of the hearing the interpreter would be needed only periodically. I made clear that it was important that the Claimant understood every part of the hearing. We allowed a full day for the Claimant’s evidence on this basis.

[9]We also discussed the tribunal day and the fact that due to a commitment on another claim I could not sit on the morning of Friday 10 January 2025. It was agreed that on that day we would sit from 13:30 to 17:30.

[10]We discussed the list of issues and the fact that the Claimant’s witness statement is long and Ms Webber did not propose to cross examine the Claimant on aspects of her witness statement that did not appear to relate to the List of Issues but that this should not be taken as the Respondent accepting that

evidence.

[11]The Claimant’s daughter said that during the process of preparing the bundle they had had to ask the Respondent to remove the redaction of names and when that request had been actioned it became apparent that the Claimant may have been dismissed because of her alleged protected disclosures. I explained that unless there was an application to amend and granted the claim would be determined on the issues set out in the LOI. I explained the balance of prejudice principle. No application to amend was made and the claim proceeded based on the LOI at [HB65-68] as agreed at the second CMPH.

[12]We discussed adjustments needed for the hearing to accommodate the fact that the Claimant’s first language is Spanish and needs of the Claimant’s daughter.

[13]We discussed the fact that hearing had been listed for liability only and what that means and I suggested that the Claimant’s daughter might use the time while I was reading to review the cross examination questions she had already prepared. I said that it is often useful to check that the questions are focused on the LOI as those are the matters I will be determining.

[14]I made clear that anyone could ask for breaks if they needed it.

[15]I reminded the parties that witnesses under oath are not permitted to communicate with others about the case during breaks or adjournments while they were giving evidence.

[16]The hearing adjourned at around 11:15 and I used the rest of the day for reading.

[17]On the second day (8 January 2025) we were not able to start to hear the Claimant’s evidence promptly. This was chiefly because the Respondent had not provided sufficient copies of the witness statement bundle and there was delay in getting them printed. The Claimant’s evidence started at 11:45. Under the agreed timetable we had been scheduled to conclude the Claimant’s evidence by the end of the day. I was prepared to sit late but it became clear at 16:30 that the Claimant was tired, I was concerned about her giving her best evidence and it was right to stop because there were still substantial elements of cross examination remaining. Before the end of the day I reiterated guidance to the Claimant’s daughter that: Case Number: 2215789/2023 4 of 7217.1 It would be helpful for her to check that her cross examination focused on the LOI:

17.2 It was important for her to challenge the Respondent’s witnesses’ on the evidence in their witness statement that is relevant to the LOI and which is disputed by the Claimant. The Tribunal is entitled to accept evidence (take it at face value) if it has not been challenged in cross examination and that could affect the Claimant’s ability to establish her case.

17.3 She did not need to get the witnesses to agree with the Claimant’s case, she just needed to challenge the witnesses and allow me to hear the answer.

[18]On the third day of the hearing (9 January 2025) there were delays because we were supplied with a new interpreter who could only participate via CVP and there were difficulties in getting the bundle and witness statements to her. We concluded the Claimant’s evidence and then heard the evidence of the Claimant’s daughter who is the Claimant’s lay representative. We heard just over an hour of the three hours of cross examination that the Claimant’s representative said she needed to undertake with Mrs Jupp.

[19]As referenced above, I was not able to sit on this claim on the morning of the fourth day of the hearing (10 January 2025) because of a Chambers commitment to another claim. We therefore resumed Ms Jupp’s evidence at 13:30 that afternoon.

[20]The Claimant’s mother was pursuing a line of questioning that I did not recall related to the LOI as regards an alleged failure by the Respondent to provide the Claimant with details of her holiday entitlement in advance of Christmas 2022 which the Claimant said led to her unnecessarily working over Christmas.

[21]The Claimant said that:21.1 this formed part of the LOI because it was what was meant by the words “or otherwise” in 2 (c) of the constructive dismissal claim; and

21.2 in response to my question as to whether it appeared in the ET1 or particulars of claim (together the “POC”), that it was referred to with the words “Subsequent to these concerns, and specifically following references to the claimant by name, a pattern of detrimental actions commenced” [HB15].

[22]Quite some time was taken with this issue. The Respondent disputed that it formed part of the LOI or POC. The Claimant said that it had been part of the LOI but had been taken out on the advice of the judge at the hearing in April 2024. The Respondent was able to provide the Claimant’s email of 2 April 2024 sending in her draft LOI to the Tribunal. The Claimant then conceded that this allegation was not in the draft LOI. However, she said that it nonetheless formed part of the claim because of the words “or otherwise” in the final LOI as referred to above. I gave the Claimant and her daughter time to discuss this and they then told me that the Claimant wanted the following allegation to be treated as part of the basis for her claim of constructive unfair dismissal and as a whistleblowing detriment: Case Number: 2215789/2023 5 of 72 “The Respondent did not support the Claimant by: A) failing to accurately confirm to her, her holiday entitlement for the holiday year 2022 by 15 December 2022 resulting in the Claimant losing her right to take her holiday entitlement for 2022 in that year; and B) unlawfully compensating her in breach of holiday pay regulations, despite being told that it was unlaw (HB302).” “the Holiday Allegation”.

[23]There was insufficient time to determine this point before the end of the day. Over the weekend the Claimant sent in a six page document making submissions on the point.

[24]We lost further time on the fifth morning because we had a third interpreter for the hearing and needed to make documents available to her.

[25]Both parties confirmed at this point that they did not consider that any other points of dispute on the LOI might arise.

[26]I read the Claimant’s submission on the morning of the fifth day Monday 13 January 2025. I took it fully into account and noted amongst other things:26.1 The Claimant said that the Holiday Allegation was comprised in the word “support” in 2c of the constructive unfair dismissal section of the list of issues and was not incorporated by the words “or otherwise” in that same issue;

26.2 There had been a preliminary hearing listed to determine the relevance of documents relating to the Holiday Allegation which was vacated when the Respondent agreed to include the documents in the bundle voluntarily (without agreeing to inclusion of the Holiday Allegation in the list of issues). Threats of costs had been made in respect of this matter by the Respondent.

[27]The Claimant also brought to my attention an email of 18 November 2024 relating to agreeing the content of the bundle and inclusion of the documents relating to the Holiday Allegation. I was taken specifically to a comment by the Claimant “We will provide further detail in the witness statement outlining how this supports the claim” which the Claimant said made clear that the Holiday Allegation was in dispute. The Respondent took me to a reply which was: “Our client has reviewed their position and, whilst we maintain that it is not disclosable, in an attempt to agree the bundle, provide a complete copy of this email chain. We will insert this into the bundle.”. The Respondent said that this reply shows that the Holiday Allegation was not part of the LOI and it was not explained to them how or why it was relevant to the claim.

[28]I allowed the Respondent to comment on the submissions of the Claimant more generally. Case Number: 2215789/2023 6 of 72

[29]Having considered the Claimant’s and the Respondent’s submissions (including the case law I was referred to), I determined that neither the LOI nor the POC could be read as including this complaint:29.1 In the POC, the words “Subsequent to these concerns, and specifically following references to the claimant by name, a pattern of detrimental actions commenced” could not be read as incorporating the Holiday Allegation. This was not precise enough for the Respondent to understand the Holiday Allegation and the POC did not go on to describe anything that could have been understood as the Holiday Allegation.

29.2 Similarly, the words “or otherwise” in the LOI as part of 2 c which read: “c) Failed to provide adequate support for the claimant in terms of staffing or otherwise” could not reasonably have been understood to include the Holiday Allegation and were not precise enough for the Respondent to understand the Holiday Allegation (particularly as the Claimant conceded the allegation was not included in the draft LOI submitted by her on 2 April 2024). In addition, the Holiday Allegation could not reasonably be said to have amounted to a matter of support (the only other context given being a reference to “staffing”).

[30]I did not accept that the fact that the Claimant had requested disclosure of documents in relation to the Holiday Allegation and that they had been included in the bundle amounted to satisfactory notice to the Respondent of the issue or amounted to an incorporation of the Holiday Allegation into the Claim.

[31]The Claimant in her submissions indicated that the Respondent had challenged the documents’ relevance to the LOI and had made clear that they did not want to annoy the judge at the final hearing by including documents in the bundle which were not relevant. I do not consider that this was the Respondent unduly taking advantage of the Claimant having lay representation.

[32]It should have been clear to the Claimant, on her own account, that the Respondent disputed that the Holiday Allegation (insofar as it was understood by the Respondent) was part of the Claim and it was not for the Respondent to then tell the Claimant that she would need to make an amendment application in order to rely on it.

[33]The Claimant did not then seek to amend her claim to include the Holiday Allegation and the Respondent cannot be blamed for that. I have taken into account that the Claimant’s daughter is clearly intelligent and articulate and has spent some time with her mother in the months preceding the presentation of the claim and since. I considered the case law that the Claimant referred to but concluded that it did not support her contentions.

[34]As such the Holiday Allegation could only be part of the Claim if a successful amendment application were made. I heard submissions on this and then took into account the balance of prejudice, the overriding objective in Rule 3, and applied the principles set out in Selkent Bus Company v Moore

[1996] ICR 836

and Vaughan v Modality Partnership

UKEAT/0147/20/BA

. Case Number: 2215789/2023 7 of 72

[35]I concluded that the balance of prejudice was against allowing the amendment taking into account:35.1 The Claimant had had the benefit of advice from a Union before presenting her claim (albeit she was unsatisfied with the quality of that advice);

35.2 There had been two preliminary hearings for case management and the Holiday Allegation had not been referred to in any clear way in any of the historic drafts of the LOI’s that were presented to me;

35.3 The Holiday Allegation had only come to light when I queried the relevance of a line of cross examination been advanced by the Claimant.

35.4 The amendment application was being made significantly out of time as regards its status as an act of alleged whistleblowing detriment (the complaint relating to December 2022).

35.5 Although the complaint of constructive unfair dismissal had of course been brought (and was argued as out of time), the Claimant’s reliance on the Holiday Allegation was being made clear very late, at the hearing itself;

35.6 We had heard the Claimant’s evidence and Ms Jupp was under oath. If I were to allow the amendment Ms Jupp would have had to complete her evidence on the current LOI. Ms Webber would then have had to take instructions from her. The Claimant would then have had to be recalled to give evidence and be cross examined on the issue. Ms Jupp or another witness would have had to give evidence on the issue. This would all have led to substantial delay in the hearing.

35.7 The Respondent was entitled to know the full case against it before the start of this final hearing and the delay would be more prejudicial to the Respondent than the absence of the allegation from the Claimant’s claim given the opportunities she had had to particularise her claim.

[36]I made the decision not to allow the amendment application taking into account that, if I found that the Claimant had resigned and that her complaint was one of constructive unfair dismissal, then her inability to rely on Holiday Allegation might be important. It was not possible at that stage to evaluate the full extent to which it might undermine a claim of constructive unfair dismissal. The Claimant had other whistleblowing detriment claims on which she relied and therefore the prejudice to her in that respect was more limited.

[37]I then heard the rest of Ms Jupp’s evidence and heard the evidence of Ms Banks.

[38]Ms Bruna Rojas and Ms Webber exchanged written submissions on the morning of the sixth day (Tuesday 14 January 2025). The parties had agreed that an interpreter was not needed for submissions. I read the submissions and then heard lengthy oral submissions from both parties. The hearing concluded at 14:50 on the final day of the trial window. The Claimant indicated that she would want written reasons and so I did not list the claim for a further date to provide an oral judgment and I reserved my decision. Case Number: 2215789/2023 8 of 72

FINDINGS OF FACT

[39]Having considered all the evidence, I find the following facts on a balance of probabilities.

[40]The parties will note that not all the matters that they told me about are recorded in my findings of fact. That is because I have limited them to points that are relevant to the legal issues.

[41]References to “Hilda” are to the Claimant.

Background

[42]The Respondent provides cleaning and facilities management services to its clients.

[43]The Claimant started employment with the Respondent as a cleaner on 14 December 2018.

[44]The Claimant has a good understanding of English and can make herself understood but has more difficulty expressing more complicated matters in English. Managers

[45]The Claimant’s managers had a practice of communicating with the Claimant and other cleaners working at individual client’s sites using WhatsApp messaging groups.

[46]Before the events most relevant to this claim the Claimant was managed by someone who I refer to as “Manager K” [CL2d]. Manager K was a supportive and warm manager that the Claimant liked. I was taken to messages from Manager K such as [HB113] “Hi Hilda, I was at [Client] today. The cafe floor looked wonderful, it was sparkling. Well done. A couple of deep cleaning things they would like us to do. Can the water bottles be cleaned tonight. And can we start polishing the steel on the furniture in the meeting rooms. If the team could start on 14th floor from the left as you enter from the lift lobby. If you spray some Vitapan on to a cloth and then buff off with a clean dry cloth.” and “also, the client at [SITE] emailed me to say you are doing a wonderful job. Well done.”

[47]Manager K ceased being the Claimant’s manager at the end of April 2022. The Claimant was sad that she left. Manager K, as well as being supportive (as reflected in the messages above) took concern over the Claimant’s welfare and the hours she was working. For example, in a sequence of messages that I was referred to Manager K said on 2 March 2022 [HB115]: Hi Hilda, I need to cover some of your work. As I can't allow someone to do 16.5 hours in 24 hours. Would you rather I covered the Old Street and [S]. I can put through as holiday so you won't lose any money

[48]The Claimant was then managed by Manager A [CL2e] who was a Regional Manager. A manager ‘D’ (Area Manager) [CL2c] then took over as the Claimant’s manager in October 2022. Manager A and Manager D had a more Case Number: 2215789/2023 9 of 72 abrupt and direct style of communication and there is evidence of this from before the point at which the Claimant made her alleged protected disclosures (e.g. [HB179]). For example, Manager A, following an audit at a client might send a list of things that needed to be addressed with photos.

[49]Ms Jupp interacted with the Claimant in her role as Regional Manager while she was a Supervisor for a client referred to below as OC. Ms Jupp was then promoted to Head of Operations. At the material times Manager D reported to Manager A who reported to Ms Jupp. Claimant’s terms and conditions

[50]The Claimant’s terms and conditions of employment provided (amongst other things) [HB103-105/HB92-94]: 2. Job Title You are employed as . You may be required to carry out other reasonable duties within your capabilities as required and instructed, should the needs of the business require it. You must follow all reasonable instructions and undertake any work reasonable required by the Company. 3. Place of Work Your normal place of work will be: [] in []. You may be required to work at other premises as necessitated by the needs of the business and directed by your Line Manager. You will not be required to work outside the United Kingdom. Please be advised that the Company does not provide transport to the workplace. You are responsible for making your own arrangements. 23. Notice Other than in cases of gross misconduct warranting summary dismissal, you are entitled to receive from the Company a minimum of 12hrs notice of termination of employment, if you were employed for up to 1 month. If you are employed for more than a month but less than 2 years, you are entitled to receive one week notice. This will increase to two weeks after 2 year’s continuous service. Thereafter you will be entitled to receive a further weeks’ notice for each additional year’s service up to a maximum of twelve weeks after twelve or more years’ service. You are required to give the company 2 weeks’ notice of your intention to terminate your employment. The notice should be confirmed in writing. If you terminate your employment without giving your contractual period of notice the Company reserves the right to make a deduction from your final pay equal to the amount which would have been paid in salary Case Number: 2215789/2023 10 of 72 during the appropriate notice period. (This includes any amount due from accrued holiday pay not yet taken). MAR reserve the contractual right to give pay in lieu of all or any part of the above notice by either party. Respondent’s employee handbook

[51]The applicable employee handbook [HB138-177] provided amongst other things: Job Flexibility It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties within our business. During holiday periods, etc. it may be necessary for you to take over some duties normally performed by colleagues. This flexibility is essential for operational efficiency as the type and volume of work is always subject to change. Mobility Although you are usually employed at one particular site, it is a condition of your employment that you are prepared, whenever applicable, to transfer to any other of our sites. This mobility is essential to the smooth running of our business. […] Paymenta. For fortnightly paid staff the pay week ends on the previous Sunday midnight. Wages and salaries are available every second Friday. Please note that the Management reserve the right to change the frequency of pay periods with adequate prior notice to you.

b. You will receive an electronic payslip showing how the total amount of your pay has been calculated. It will also show the deductions that have been made and the reasons for them, e.g. Income Tax, National Insurance, etc. Payslips are sent to you via your email address that you offer during your induction with the Company.

c. You might be required to use our telephone Time and Attendance system for signing in and out. Here you will be issued with a personal pin number identified only to yourself to use to sign in and out with. You will be required to sign in using a site specific telephone when you arrive for your shift and also to sign out when you leave site. It is not enough for you to sign into the signing in book. This is very important because the system records your hours worked which in turn calculates your wages at the end of every week. Please be informed that failure to comply with this signing in and out procedure will result in you not being paid for time worked. This policy applies to all operatives working on sites where there is access to the telephone Time and Attendance System. This is also applicable when you work as cover on sites that are not your usual place Case Number: 2215789/2023 11 of 72 of work and to all mobile Cleaning Operatives and Supervisors. Deliberate falsification of the signing in and out procedure will be regarded as a serious disciplinary offence. This may lead to your summary dismissal. Some sites do not have the Time and Attendance system in place and as such will be required to complete and submit timesheets as directed in order to ensure that you receive the correct payment. Incorrectly completed, or late submission of, timesheets may result in incorrect or delayed payment of wages. Deliberate falsification of timesheets will be regarded as a serious disciplinary offence. This may lead to your summary dismissal.

d. Any pay queries that you may have should be raised with your Line Manager […] Termination of Employment The following provision is an express written term of your contract of employment:- If you terminate your employment without giving or working the required period of notice, as indicated in your individual statement of main terms of employment, you will have an amount equal to any additional cost of covering your duties during the notice period not worked deducted from any termination pay due to you. For example; requiring an agency worker to cover a shift and the difference in salary/rate of pay per hour for the work carried out. This is an express written term of your contract of employment. You will also forfeit any contractual accrued holiday pay due to you over and above your statutory holiday pay, if you fail to give or work the required period of notice. […] Annual leave policy […] 3.5 MAR expects that within the annual leave year employees should be provided with the opportunity to take all their annual leave and believes that this is important to staff health and well-being. It is not permitted for holidays to be carried forward and no payment in lieu will be made in respect of untaken holidays other than in the event of termination of your employment. […] 4. The following rules should ensure that:- a. the correct procedure is used when requiring you to attend a Case Number: 2215789/2023 12 of 72 disciplinary hearing; b. you are fully aware of the standards of performance, remedial action and behaviour required of you; c. you will only be disciplined after careful investigation of the facts and the opportunity to present your side of the case. On some occasions temporary suspension on contractual pay may be necessary in order that an uninterrupted investigation can take place. This must not be regarded as disciplinary action or a penalty of any kind; d. disciplinary and remedial action, where necessary, is taken speedily and in a fair, uniform and consistent manner;

e. other than for an “off the record” informal reprimand, you have the right to be accompanied by a fellow employee at all stages of the formal disciplinary process;

f. you will not normally be dismissed for a first breach of discipline, except in the case of gross misconduct; and

g. if you are disciplined, you will receive an explanation of the penalty imposed and you will have the right to appeal against the finding and the penalty. 5. The following procedure should be followed: a. allegation received b. suspension (if appropriate) c. investigation conducted d. outcome of the investigation process e. disciplinary or capabilities process to be followed (if required) f. outcome of the process g. appeal

h. outcome of the appeal […] Rules Covering Unsatisfactory Conduct and Misconduct You will be liable to disciplinary action if you are found to have acted in any of the following ways: […] e. unsatisfactory standards or output of work; Case Number: 2215789/2023 13 of 72 [...] Serious Misconduct 1. Where one of the unsatisfactory conduct or misconduct rules has been broken and if, upon investigation, it is shown to be due to your extreme carelessness or has a serious or substantial effect upon our operation or reputation, this may be deemed as gross misconduct. 2. If, in an alleged gross misconduct disciplinary matter, upon investigation, there is shown to be some level of mitigation, you may receive a final written warning. Rules Covering Gross Misconduct Occurrences of gross misconduct are very rare because the penalty is dismissal without notice and without any previous warning being issued. It is not possible to provide an exhaustive list of examples of gross misconduct. However, any behavior or negligence resulting in a fundamental breach of contractual terms that irrevocably destroys the trust and confidence necessary to continue the employment relationship will constitute gross misconduct. The following examples are illustrative and do not form an exhaustive list of offenses that will normally be deemed as gross misconduct include serious instances of: - […] c. if you commit any act of dishonesty, if you falsify records or documents; […] j. if you commit a serious breach of integrity, or any act likely to damage the Company’s reputation; [..] l. if you commit a breach of any of the Terms and Conditions of your Employment referred to in your Contract of Employment or in this Employee Handbook. […] Whistleblowing procedure The Procedure 1) In the first instance you should report any concerns you may have to your Line Manager who will treat the matter with complete confidence. If you are not satisfied with the explanation or reason given to you, you should raise the matter with the appropriate official organisation or regulatory body. Case Number: 2215789/2023 14 of 72 2) If you do not report your concerns to your Line Manager you should take them direct to the appropriate organisation or body September 2022 changes

The Procedure

[52]A letter dated 23 September 2022 set out details of an amendment to the Claimant’s contract of employment [HB256]. I accept the Claimant’s evidence [CWS80e] that she did not receive this letter and Ms Banks accepted that she could not evidence that it had been sent. I accept Ms Bank’s evidence that she created it on or about 23 September 2022 and not at some later date. It included the following details: RE: Amendment to Contract of Employment As discussed with your Line Manager, this letter is to confirm a recent change to your Terms & Conditions of Employment. You have agreed to the following: Contract: Permanent Hours: 4 hours per day, Mon-Fri Location: [Client that I refer to as OC] Pay Rate: £11.05 per hour Job Title: Cleaning Operative Contract: Permanent Hours: 2.5 hours per day, Mon-Fri Location: [Client I refer to as Old Street] Pay Rate: £11.05 per hour Job Title: Cleaning Operative Contract: Permanent Hours: 2.5 hours per day, Mon-Fri Location: [Client I refer to as “S”] Pay Rate: £10.85 per hour Job Title: Cleaning Operative These changes are in effect from 1st September 2022. All other terms and conditions of employment remain as per your original Contract and the Employee Handbook. Case Number: 2215789/2023 15 of 72 If you have any reason for not agreeing to the above, please notify within 7 days from the date of this letter. If I do not receive any communication from you, I will assume that you accept the amendment detailed above.

[53]From 30 September 2022 the Claimant in fact stopped working at Old Street.

[54]One of the central issues that arose between the parties as regards Client S was whether the Claimant:54.1 was required to work 2.5 hours per day Monday to Friday at S; or

54.2 was required to work a total of 12.5 hours at S but with the flexibility to do those hours during the week and/or at the weekend; or

54.3 was just required to make sure that she cleaned the necessary areas at S and could do fewer than 12.5 hours in a week if she got the job done more quickly (“the Job Not Hours Contention”).

[55]I accept Ms Jupp’s evidence [JJWS24] that:55.1 The Claimant knew that S expected their premises to be cleaned for 2.5 hours each week day.

55.2 The Claimant from 30 May 2022 until 28 October 2022 was completing a signing in book at S [HB134-137] for 2.5 hours of cleaning between 8 and 10:30pm (there was no telephone at S and therefore the Claimant could not use the telephone Time and Attendance system referred to in the Respondent’s policies).

[56]The Claimant accepted [CWS4] that on 20 January 2022 when she was offered the role at S it was explained to her that it was for 2.5 hours Monday to Friday. There was further evidence that she understood this:56.1 A message from Manager K of 25 January 2022 which said [HB113] “Do you want a 5pm-7:30pm vacancy in Old Street. Thought maybe you could do that. Then work 2.5 at [S] then do 11pm-3am in [OC]”.

56.2 The Claimant sent Manager K messages on 5 and 6 April 2022 [HB116 and 328] saying (the messages : [Manager K] i get my pay slip i think there is a mistake.in [S] i do 2.5 hours that is what you are paing to me,but this month you me just 40 hours. Can you check i [OC] because i cover Mirian for a week this month.You told me they were going to pay 11.35 an they pay 10.85.Please can you check again .Tk [Manager K] i just check last month pay slip and i notice you pay in [S] 10 hours.Normali i do not check.You told me itwas 2.5. Hours.Why this change. You star paing me 2.5 hours.Please [Manager K] can you check this.Tk [Manager K] they send me a new pay slip but this time they didnt Case Number: 2215789/2023 16 of 72 pay me [S] at all.I do not undetstand what is hapening.As you told me from the begining im doing 2.5 hours every day monday to friday.As i mention yesterday the last month thry pay me judt 40 hours.I do 2.5 hours every day.tk I refer to these as the “5/6 April WhatsApp Messages”.

56.3 The Claimant sent further messages on 6 December 2022 to Manager A saying “please i think is a mistake whith my hours at [S].Please can you check my pay slip again i do daily 2.5 hours”. Manager A replied to this “I didn’t do the [S] hours , it’s [Manager D’s] timesheet”

[57]I accept the Claimant’s evidence that the Respondent led her to believe that the work at S did not have to be done between Monday and Friday. For example Manager K, on 18 February 2022, told her that Old Street was closed and she could do S work over the weekend.

[58]I do not accept the Claimant’s Job Not Hours Contention as regards client S. I find, in particular from the correspondence above, that she knew she needed to complete 12.5 hours per week at S. However, as I will come on to explain, the Respondent is partly culpable for ambiguity that arose in this regard and was complicit in occasions when the Claimant did not work her full weekly hours.

[59]Before she stopped working at Old Street, I accept that the Claimant was working the following hours [CWS2]:59.1 [Old Street] 17:00 - 19:30

59.2 [S] 20:00 - 22:30. Somewhat confusingly Manager K had told the Claimant in April 2022 to reduce her hours there to 2 per day saying [HB117] “[…] regarding Sis TV. The hours are 2 per day. I only needed the extra time to make up for the poor cleaning from the last cleaner. Please only do 2 hours per day here. Also the dispenser keys will arrive by Thursday”. The Claimant replied “[Manager K] im sorry it wasnt clear for me.I ask again thid week and the srea manager told me 2.5 Anyway from today i do 2 hours.[Manager K] regarding a product they use to sanitaze who is coming to do it.We just go 4 hours.Please can you clarify this.Tk”. The Claimant’s hours were then increased again to 2.5 hrs per week day at S. The Claimant was the only cleaner at S.

59.3 [OC] 23:00 - 03:00am. The Claimant was one of a number of cleaners working at OC and she was the cleaning supervisor. As supervisor she had to let Manager A (or later Manager D) know about staffing issues. As supervisor at that client she was paid the higher rate of £11.50 per hour (the normal cleaning rate being £11.05 per hour).

[60]She was therefore working from 5pm until 3am (a total of 10 hours including travel time between clients).

[61]OC was a gold standard client which meant that they expected a particularly high level of service. Case Number: 2215789/2023 17 of 72 August to October

[62]In August staffing problems started to arise with the cleaners at OC and the Claimant notified Manager A [HB179]. The Claimant told Manager A that she had covered an absent cleaner and asked Manager A if she had anyone to cover the missing cleaner. Manager A said the Claimant could cover that person.

[63]On 15 August 2022 Manager A told the Claimant about the forthcoming absence of a cleaner called Nancy (for 3 weeks in September) and then following that a cleaner called Angela (for a month in October). Manager A said “I have been told as previously you covered them. Would you be interested to do it ? If not do you know who may be interested?”. The Claimant was willing to help and said she would do it “no problem”. Manager A asked if the Claimant was sure acknowledging that it involved a lot of hours. The Claimant reiterated that it was not a problem [HB180-181].

[64]While Nancy was away the Claimant worked the following shifts [CWS6]:64.1 OC - 7 hrs - 10:00 - 17:00

64.2 Old Street- 2.5 hrs - 17:30 - 20:00 (

64.3 S - 1.5-2 hrs 20:30 - 22:30

64.4 OC - 4 hrs - 23:00 - 03:00

[65]This totalled 17 hours of work per day and, with travel time, only allowed the Claimant about four hours of sleep per day. Ms Banks accepted in cross examination that it was not feasible for the Claimant to complete these hours. Ms Bruna Rojas set out in her witness statement the impact that she witnessed of the excessive hours on the Claimant (e.g. BRWS17) which I accept.

[66]I find that it would not have been possible for the Claimant to do all 2.5 hours of cleaning at S. I was not told of the travel times but find that the Claimant could at the most have done 2 hours at S and the Respondent, in particular Manager A, knew this. Ms Banks did not know the Claimant was committed to such long hours at the time. The Claimant in September and October was completing the signing in book at S to indicate that she was doing 2.5 each week day but she was not and Manager A knew this.

[67]At the end of September 2022 Manager A told the Claimant that Nancy was not returning and asked the Claimant to continue to cover her work as well as to cover for Angela who was going away in October. I accept the Claimant’s evidence [CWS7] that the Claimant told Manager A that she could not continue to work the hours she was having to work to cover for the shortage of staff at OC which had a busy cafeteria with more than 500 people passing through it each day. It was a cafeteria to which staff brought their own food and used cutlery and crockery provided by OC which then had to be cleaned by the Respondent’s staff under the supervision of a facilities management team comprising OC employees “ED”, “JC” and “AG”. Case Number: 2215789/2023 18 of 72

[68]In response the Respondent sent Manager D to help provide cover at OC and this was when the Claimant first met Manager D. However, Manager D had childcare responsibilities and had to leave OC at around 13:30 each day. During one of the busiest times of day the Claimant was then on her own. Manager D told the Claimant to do the best she could but the workload was overwhelming [CWS9]. The Claimant resented Manager D leaving at that time and on the balance of probabilities I consider that this soured the relationship between them. Practices for covering for other cleaners

[69]Ms Banks accepted in cross examination that the OC timesheet for October 2022 [HB249] evidenced that staff working on the OC contract during that month were being paid for their own hours and for the hours of staff who were absent without actually working additional hours for the staff who were absent. Ms Banks fairly accepted that an employee doing a cleaning job could not do eight hours work in the space of four hours, i.e. could not work at 200% efficiency. Ms Banks said that this would not be standard practice for the Respondent but it is what was happening over that period and that they put a stop to it (albeit she could not say when). It was clear on her evidence that at some point the Respondent became aware of it and stopped the practice. I call this the “Double Time Practice”. Ms Banks accepted that a manner of Double Time Practice continued into 2023 [HB252/253]. Alleged protected disclosures

[70]On 5 October 2022 the Claimant exchanged the following WhatsApp messages with Manager A [HB182-183]: 8:06 – Manager A: Hello Hilda [Manager D] will be at 9 8:07 - Claimant: Ok 9:02 – Manager A: [missed call] 9:03 – Manager A: Hilda Please pop in to the cafe [AG] is waiting for you there 20:57 – Manager A: Hi Hilda Please find the products what have been send as electrostatic cleaning but it’s was wrong one and left somewhere around reception. Someone from Source company will come to collect it and delivered the correct one. 20:57 – Manager A: Also please make sure desks of [JC], [AG] and [ED] are clean 20:58 – Manager A: I know one of your guy is on holiday but team can use his hours to stay longer to do the job. 21:25 - Claimant: The girl who does this office didnt fo prproperly y talk to her tonight.

[71]The message from Manager A at 20:58 might suggest that the Double Time Case Number: 2215789/2023 19 of 72 Practice was not used on this occasion but Ms Banks’ evidence was clear that it had been and that it had at some future point been stopped.

[72]I accept the Claimant’s evidence [CWS9f] that on 4 October 2022, because of the strain she was under and because she was not able to do all the work that needed to be done, she approached AG and asked her to speak. AG offered to meet the following day as reflected in the WhatsApp messages above. When the Claimant arrived in the café to speak with AG she was relieved that Manager A was not there. The Claimant’s evidence, as set out in her witness statement [CWS11] was: 11. I spoke verbally with [AG] and said:a. I was sorry to bring it up, but [MARFM] was not providing enough staff to support the cafeteria's work. Despite my best efforts, it was not enough.

b. I explained I was handling most of the day shift on my own because [Manager D] could only stay until 13:30, leaving me alone during the busiest lunch rush.

c. I mentioned that I was also returning at 23:00 to complete my night shift hours.

d. When [AG] asked if someone else was covering the night shift, I explained I was doing my usual night hours and had also been covering for a colleague on holiday the past two nights.

e. I told her I was making small mistakes due to exhaustion and explained the issue with dishes and cutlery, particularly the risk of cross- contamination for people with allergies or illness from dirty items. I admitted I couldn't keep an eye on everything in the cafeteria while managing the workload alone.

f. [AG] nodded, seeming angry but not at me, and said, "Thank you, Hilda, leave this with me."

g. Eager to avoid falling asleep, I got back to work. I don't know if [Manager D] saw me with [AG], but when I returned, she was at the counters working.

[73]This was the Claimant’s first alleged protected disclosure (“PID1”) and I accept that this reflects the nature of what the Claimant said to AG. I note here that the List of Issues agreed by the Claimant captures alleged PID1, as follows: “I’m sorry about the cafeteria, I’m doing my best I really try but I’m here on my own during lunch. I think [Manager D] is today to help me in the cafeteria during the day. But I know she can’t stay for the lunch as she has to pick up her children. Nancy was supposed to come back after 3 weeks but she’s not back, and now I’m also covering Angela”

[74]I accept the Claimant’s evidence [CWS12] that after meeting with AG the Case Number: 2215789/2023 20 of 72 Claimant continued her day as usual, with Manager D leaving at 13:30. The Claimant tried to keep up, but she made a mistake and forgot to empty the dishwashers before leaving.

[75]On 5 October 2022 at 17:28 [HB273] JC sent an email to Manager A saying: The dishwashers have not been emptied and as such staff are outing dirty glasses in with the clean ones. The "clean" dishwasher has finished washing but nobody emptied the clean dishes there either! Please ensure this is rectified this evening please.

[76]Manager A replied at 20:54 to say: Your email is at 5:30 but we don't have any staff after 5pm. They will come tonight and I'm sure they will do the correct job. I'm sorry for inconvenience.

[77]The next morning (6 October 2022) JC approached the Claimant and asked her about the fact that the dishwashers had not been unloaded the previous evening. The Claimant says that she then made her second protected disclosure (“PID2”) to JC. In her witness statement she describes what she said as follows [CWS14-15]: I then disclosed to [JC] verbally, repeating much of what I had told [AG] the previous day:a. [MARFM] was not providing enough staff to manage the cafeteria properly.

b. I was covering both the 9am-5pm day shift and the llpm-3am night shift to help out due to staff shortages.

c. Angela and Nancy were both gone this week, leaving me alone for the day shift.

d. [Manager D] assisted only until 13:30, as she needed to pick up her children. 15. I also apologised for the mixing of the cutlery and explained that I was doing my best, but despite [MARFM]'s assurances that help would arrive, no one had come. 77.1 I note here that the List of Issues agreed by the Claimant captures alleged PID2, as follows: “I’m sorry about the dishwasher Jon, I’m so sorry, I know how serious that can be, it won’t happen again, I’m trying my best Jon, I was alone during the lunch and I must have forgotten, and today [Manager D] is Case Number: 2215789/2023 21 of 72 also helping but she can’t stay for lunch, she has to pick up her children. I did tell Amanda that Nancy was supposed to come back after 3 weeks but she’s not back, and now I’m also covering Angela. I do my best, but they usually never send people when I ask”.

[78]I find on the balance of probabilities that the Claimant, when speaking to JC, did not explain “the risk of cross-contamination for people with allergies or illness from dirty items.”. Taking into account the wording of her witness statement and the LOI I think it is more probable that she focused on explaining the reasons for the mistake that JC had asked her about, rather than the potential consequences of her mistake (which on the Claimant’s evidence would have made her mistake more serious).

[79]I accept the Claimant’s evidence [CWS15a-b] that:79.1 JC said he would speak to AG and to Manager A and the Claimant later saw him approach Manager A (but did not hear their conversation).

79.2 After JC left, Manager D barely contributed to the workload and when the Claimant asked her to help with a specific task, she refused, saying she was the manager and did not need to do those things.

79.3 Manager D ignored the Claimant for the remainder of her time on site and left without saying goodbye at around 13:30.

[80]Soon after the conversation between the Claimant and JC, at 9:19am, JC sent the following email to Manager A [HB272]: Thank you, I just tried to call you. We had no place to put the dirty wares as both dishwashers were full with clean dishes and glasses. Staff started to put the dirty in with the clean by the end of the day! Also there was no clean glasses in the cupboards, as they was all in the dishwashers. Can you also confirm who will be covering [Manager D] today ? [Manager D] has just advised she will be leaving at 1.30pm are you aware of this? If so , who will be replacing here, as she is leaving during the lunch time, which will be very busy and unfair on Hilda. Please advise.

[81]At 9:29 Manager A replied [HB271]: Yes I'm aware as [Manager D] is leaving at l:30today. We don't have anyone who can cover her. We hope new person will Case Number: 2215789/2023 22 of 72 come tomorrow for training and will work together with [Manager D] and Hilda. Hilda is aware as [Manager D] is going early today and she will be on site till 5pm. I'm sorry for a small hiccups currently in your office but I'm sure in next few days all will back to normal.

[82]At 9:38 JC replied [HB271]: We cannot have only Hilda as the only cleaner during lunchtime. It was due to [Manager D] leaving early yesterday that Hilda was overwhelmed , and was unable to finish cleaning properly before she left. We cannot have only one cleaner this afternoon [Manager A], our service levels to the business will be drop dramatically as it has already started to show. If you cannot find a replacement for [Manager D], [Manager D] will have to remain on site on until after lunch around, 2.30-3pm. This last minute change to the service without a solution, although not ideal, it is not acceptable unfortunately.

[83]Also that morning and then on 10, 11 and 12 October 2022 the Claimant exchanged the following messages via WhatsApp with Manager A [HB184-185]: [photos sent] 6/10/22, 9:30 – [Manager A]: Hi Hilda Did your staff remove all cups from dishwashers in the night? 6/10/22, 9:46 - Hilda: Yes.which floor they talk abouth [photos sent] 10/10/22, 17:34 - [Manager A]: Did you clean the fridges on Friday ? 10/10/22, 17:36 - [Manager A]: Do we clean on Friday every fridges ? Or just the big ones? 10/10/22, 18:18 - Hilda: We cleaned but she said on of them has some milk in one of the floors.She compleint as weel for 2 disches that were dirty in a plastic bag.I cant mo open whst they keeped.What we hsve to do on fridsy is trow away the food and clean the fridges.I think should work until friday and carrion doing the night.She mention thst Nancy is coming in november that she just went for a dental treatment.I try to do the bedt i can 10/10/22, 18:55 - [Manager A]: Hilda Currently please don’t worry about Nancy and who said what about. She is our employee not [OC] Case Number: 2215789/2023 23 of 72 We just have to do our job [photos sent] 11/10/22, 23:03 - Hilda: We didnt found the paper to log at the recepcion.Were you left [photos sent] 12/10/22, 17:12 – [Manager A]: Hi Hilda 12/10/22, 17:13 - [Manager A]: How many people were last night? And how many will be tonight at [OC]? 12/10/22, 17:17 - Hilda: Ladt night 3 and today 3.I will csrrion covering Carlos he is coming monday 12/10/22, 17:21 - [Manager A]: Ok thank you Hilda

[84]On 11 October 2022 there was a meeting between Manager A, Ms Jupp, AG and ED from the client OC and the notes of that meeting record the following (amongst other things) [HB274]: Dishwashers must all be empty when last day cleaner leaves [...] Night team not fully attending and cover not being provided. If there is an unforeseen issue then communication to FM is essential [...] Need to review how support is provided to day team as Hilda cannot keep working day and night. JJ advised that recruitment is taking place for a permanent cover cleaner for the London area and that they will spend time with the day team and night team when they are on board to ensure smooth cover process for the future. We are also looking for short term cover still to cover Nancy’s absence and then Hilda’s absence if Nancy has not returned from her absence. [...] Fridge cleaning has not taken place properly. Any items that are off or out of date should be photographed and then disposed of with photos sent to FM team.

[85]I accept the Claimant’s evidence [CWS22d] that the same day, 11 October 2022, Ms Jupp, Manager A and ED were with her and ED approached the Claimant looking very angry and took the Claimant by the wrist to stand in front of Ms Jupp and Manager A and pointed at the Claimant telling them to look at the Claimant’s face and saying the Claimant looked exhausted. I accept that the Case Number: 2215789/2023 24 of 72 Claimant did not know what to say and felt worried that she might get into trouble. ED continued to ‘scold’ Ms Jupp and Manager A and then turned to the Claimant and said "Hilda, you are going to have the next week off. It will not come from your annual leave. [OC] will pay for it.”. Ms Jupp and Manager A agreed without any argument. The Claimant said that she thought that this likely confirmed to Ms Jupp and Manager A that it had been the Claimant who had told the client about the lack of staff.

[86]I accept the Claimant’s evidence that she asked JC and AG to keep the details of the conversation she had had with them on 5 and 6 October 2022 confidential as she was worried that OC would name her to Manager A. I conclude on the balance of probabilities that Ms Jupp, Manager A and Manager D suspected that the Claimant had explained that she was short staffed. However, I consider that Ms Jupp, Manager A and Manager D knew that OC had realised this for themselves – they themselves had seen that the Claimant was often working alone at the busiest time of day. I do not consider that JC or AG told Ms Jupp, Manager A or Manager D of the Claimant’s concerns about risks to the health and safety of people with allergies or of illness from dirty crockery or cutlery. I think that had they been significantly concerned about that then they would have mentioned it in the emails to the Respondent referred to above and below as it might have added strength to their complaints about the seriousness of the substandard service they were receiving from the Respondent and might also have helped demonstrate that they were trying to manage any such health and safety risk with their underperforming contractor. There is no evidence that the Claimant raised any similar concerns about health and safety with the Respondent.

[87]On 18 October 2022 ED sent an email to Ms Jupp and Manager A which she also copied to a direct of OC saying (amongst other things) [HB283b]: [..] I can see that following my recommendation, Hilda has been given time off from working the night shift. However, my security team has advised that cover has not been provided for her and as a result, we are noticing that the works are not being completed or completed to a satisfactory standard. So far this week, there have been a number of bins that although emptied, bin bags were not replaced – including mine. the Reception area is looking less than ideal - we’ve been sweeping up hairs from the floor the café floor has not been moped so far this week – and it shows although the team cleaned the fridge in the café, they did not dispose of expired food the client kitchen fridge although cleaned, they accidentally switched it off for days and the items in it went off Authorising Hilda’s annual leave with no plan to provide cover is not what I would expect and as I didn’t receive the plan of action from you, I have Case Number: 2215789/2023 25 of 72 no way of knowing whether cover was arranged and simply didn’t arrive. If for the benefit of doubt, that that was the case, at the very least, I would expect to be notified by you or [Manager A]. It is very disappointing that despite the numerous conversations where I have flagged the poor supervision of the night team, MAR not provide cover for the supervisor’s annual leave. Thank you for arranging Irina to cover during the day. However, when [Manager D] advised me that after one day, she expected Irina to be able to work without supervision, I was shocked; particularly as Irina was not told to come with a note book to take notes (I asked) or provided with the task list that I shared with you last week. [Manager D] seemed very blasé about it when I asked; this was a cause for concern for me as it was clear that she didn’t understand the complexity of the role. After providing Irina with a note book and pen, I had to explain to [Manager D] the importance of note taking in the role in order to set Irina up for success. Just so you are aware, I have not authorised October’s invoice for payment as by my calculations, there are at least 20 hours where staff cover was not provided and as such, the invoice needs to reflect this. Additionally, you were going to let me know the arrangements for Angela going forward – as I would like to have it in place ahead of her return (speaking of which, what is her return date?).

[88]The Respondent only gave the Claimant paid time off from her OC duties (17 October 2022 to 21 October 2022). She continued to be required to work at Client S during that week. While the Claimant was on paid time off from her OC duties Manager A sent messages to Respondent staff OC WhatsApp group seeking cover for the Claimant’s night time hours [HB275]. In those messages Manager A said “What about if whole team will help and I would add money to everyone? Will it work?”. In the messages that followed the team reiterated to Manager A how much work there was to get done at OC, even for two people.

[89]On 31 October 2022, rather than contacting Manager D, Manager A asked the Claimant for details of who had been on holiday and who had been covering on the OC contract in October. On 1 November 2022, the first day of her holiday referred to below, the Claimant replied [HB186]: “Carlos went to holiday from 3 october till 14 october,i cover him.Extra 4 hours every day. From 17 till 21 i been off you told me.Gena cover me 2 extra 2 hours and Juan cover me extra 2 hours. Them on 24 october Geena didnt come to work i cover her 4 extra hours and on25 Carlos didnt come to work i cover him extra 4 hours. I start holiday on 31 of november. [...] During the day time i cover nancy and Angela.3 days i start 8am till 5 pm.The rest start 10 till 5pm.tk”.

[90]On 4 November 2022 OC had to send a further email to Ms Jupp and Manger A saying [HB285]: Following on from our numerous meetings and calls where it is apparent that the service we receive has deteriorated further from the gold Case Number: 2215789/2023 26 of 72 standard we expect. In the last 2 months alone, we have experienced the following issues:- […]• not providing a cover for Hilda's annual leave from the night team but neglecting to notify us - awaiting a credit note for over 30 hours where cover was not provided

• poor management of the evening team that is constantly resulting in poor standard ofcleaning

[91]OC ultimately terminated their contract with the Respondent and the parties’ agreed position was that the Claimant’s employment with the Respondent in respect of work at OC then transferred on 28 February 2023 under TUPE from the Respondent to a third party [CBWS6]. Reduced pay for October 2022 for the hours the Claimant covered for others

[92]One of the complaints that the Claimant raises in support of her claim of constructive unfair dismissal and which she says was a detriment to which she was subjected on the grounds that she had made alleged PID1 and PID2 is that the Respondent reduced the Claimant’s pay for October 2022 for hours she covered for others [LOI 2b and CWS32d-f]. I accept Ms Bank’s evidence that what in fact happened was that the Claimant was paid more than she should have been paid in September 2022 because she was paid her supervisor rate for both her supervisor hours and the hours she was paid for covering non- supervisor cleaners. I accept Ms Bank’s evidence in cross examination that, on the balance of probabilities, the discrepancies in this respect were errors that benefited the Claimant rather than were to her detriment [HB248/249 and HB517-518] and that the normal practice would have been to pay the Claimant the lower rate of pay (£11.05 per hour) for time spent covering a cleaner’s shift. It is logical that an employee would be paid at the rate payable to the staff member whose hours they were covering. Holiday

[93]Starting on 1 November 2022 the Claimant took a three week break from all sites and on her return at the end of November she queried with Manager A what her entitlement to annual leave was (this is the subject of the Holiday Allegation referred to in the Hearing section of this judgment). This was a more complicated question than it might have been in other employment contexts because of the accrual of holiday in respect of hours worked for different clients which varied over the year and, in the case of the Old Street client, terminated during the year. The Claimant did not take leave she had accrued in 2022 in 2022 (she says because the Respondent neglected to tell her but it is not for me to determine this question) [CWS37, 41, 41c-f, 45, 46].

[94]The Respondent’s Head of HR advised Ms Jupp and Ms Banks via email on 9 January 2023 that [HB302]: “Holiday is accrued against each site but only cost-wise. We cannot pay Case Number: 2215789/2023 27 of 72 out when someone changes sites - it is illegal to pay for unused holiday unless someone is leaving employment entirely. Therefore, any unused holiday should form part of the total allowance for that year and EE can use it at their new site. We don’t look at their entitlement “per site” but as a whole. It’s a pain from the allocation point of view for accounts, but unfortunately this is the correct way.”.

[95]On 10 January 2023, having had a conversation with Ms Banks, Ms Jupp decided to pay the Claimant in lieu of her accrued but untaken holiday from 2022 rather than allow her to carry it into 2023, notwithstanding the advice that she had received that it was illegal to do so. Under cross examination she explained that she thought this was nonetheless the right course of action because it was holiday accrued in respect of a client for which the Claimant no longer worked on behalf of the Respondent (i.e. Old Street).

[96]Prior to taking her November holiday the Claimant had, on Saturday 22 October 2022, taken another cleaner, Irina, to client S to show her how to cover the Claimant’s duties at that client while the Claimant was on leave. I accept the Claimant’s evidence [CWS29] that she worked with Irina that day (rather than just showing Irina around) and that Manager D did not record any hours for the Claimant or Irina on that Saturday. Instead, Manager D assigned 2.5 hours to another employee and logged it under Friday, 28 October 2022 [HB257]. It was suggested that this was because client S did not pay weekend rates and so the hours needed to be logged in the timesheet for a week day. I accept the Claimant’s evidence that this demonstrates that Manager D followed the same practice that the Claimant says management instructed the Claimant to follow i.e. timesheets should reflect weekday hours for simplicity, regardless of when the work was actually undertaken.

[97]When the Claimant returned from her holiday the book at client S into which she had recorded her hours had gone and so she could not complete it [CWS36d]. The Claimant mentioned this to Manager A during one of their conversations, and she responded calmly, saying she would inform Manager D. The Claimant did not hear anything further about it, and Manager D did not ask the Claimant about the book or speak to the Claimant much during this period. Manager D completed the timesheets that formed the basis for the charges made to Client S. December 2022 – March 2023 client S audits

[98]On 6 December 2022 [HB112K-112L] Manager D conducted an audit at Client S and scored the Claimant for the stairs: 93.33% and for the toilets: 92.5%. The areas that required improvement in October (cubicles, sinks/taps, and mirrors) were scored at an acceptable standard [CWS38].

[99]On 10 January 2023 Manager D carried out an audit of client S [CWS46 and HB112M]. She scored the office space at 75% which was the trigger point for failing the audit.

[100]On 15 February 2023 Manager D sent the Claimant images criticising the cleaning standards at Client S [CWS50 and HB119]. The Claimant took the view that the majority of the images did not show genuine problems and said that this Case Number: 2215789/2023 28 of 72 scrutiny was unfair [LOI 2a].

[101]Two hours after Manager D had performed an audit at client S, Manager A carried out an audit of three areas of the client [CWS51 and HB112N-P]. Manager A scored three areas as follows: Meeting Room 83.3%, Offices 80%, Stairs 80%. The next day Manager D carried out an audit of the client S office space and scored the Claimant 75% [CWS 51f, HB112Q]. These are marginal differences and there must be a degree of subjectivity to the scoring. The Claimant’s evidence was that [CWS52g] this was a pattern that suggested that Manager D was attempting to use failed audits to engineer the Claimant’s dismissal and were not genuine assessments of the Claimant’s performance. I do not accept that to be the case and do not accept that the Claimant was inappropriately subject to increased scrutiny in her work. It is clear that audits are a normal part of the Respondent’s process for checking standards and that, as was borne out by Client S’ subsequent complaint, the standard of cleaning being done by the Claimant for Client S was slipping. The Claimant was referred to [HB335] in cross examination and accepted that it was Client S that had prompted what scrutiny there was of the Claimant’s work.

[102]On 21 February 2023 Manager A sent the following message to the Claimant: “Hi Hilda Can I meet all of you tonight around 10pm on site at [OC]? It’s important Or you can call me” [HB190].

[103]I accept the Claimant’s evidence [CWS53a] that this indicates that there was flexibility as to when the Claimant worked at Client S (because Manager A would have know that this would interrupt her hours there (albeit this was an important meeting about TUPE)) and I find that it also demonstrates that the Respondent took a relaxed approach as to whether Client S received all the cleaning hours it was paying for.

[104]On 1 March 2023 Manager D submitted the client S time sheet to Manager A and Ms Jupp [HB265].

[105]On the balance of probabilities I find that the relationship between Manager D and the Claimant was strained because:105.1 of the lack of staffing on the OC contract and the fact that Manager D had had to leave the Claimant to cope on her own at that client during the busy lunch period;

105.2 Manager D had an abrupt style of communication that was in contrast to that of Manager K.

[106]The WhatsApp messages between Manager D and Ms Jupp of 27 March 2023, which I will come on to set out, clearly suggest that Manager D thought that the Claimant would be dismissed [HB342-343].

[107]On the balance of probabilities I do not consider that either Manager A or Manager D blamed the Claimant for the loss of the contract with OC. It was plain to OC itself that it was not receiving the services that it had contracted for and OC’s awareness of that was not because of anything that the Claimant had Case Number: 2215789/2023 29 of 72 said to them. The difficulties with allocating OC the staff it needed (and the consequent shortfall in cleaning standards) were not in any way the fault of the Claimant. I do not consider that Manager D therefore marked down the standard of the Claimant’s work at client S. In December 2022, after the issues had started to arise at OC, the Claimant acknowledged that Manager D gave her good scores for her cleaning at client S. I do not consider it probable that Manager D would have wanted a further problem to arise with Client S because that would have created more difficulties for Manager D herself. I consider that her actions with respect to cleaning standards at Client S were to draw to the Claimant’s attention things that needed to be addressed to avoid a complaint by Client S. I also do not consider it probable that Manager D would have drawn to Client S’s attention problems with the Claimant’s work or have prompted Client S to scrutinise its CCTV (as they later did) to check the Claimant’s arrival and departure times (this is corroborated by Manager A’s email of 28 March 2023 HB346]). I find that it is more probable that Client S realised itself that its premises were not being cleaned to appropriate standards during audits with Manager D and took the initiative itself to check its CCTV to see if the Claimant was attending its site for the time that it was paying for. The Respondent then asked for screen shots of the CCTV. I note the content of email sent by Client S to the Respondent on or about 29 March 2023 [HB357] and before that on 13 March 2023 [SB10] which said: 13 March 2023 This is very disappointing to hear. This has been going on for months whereby the contract hasn’t been fulfilled. [NAME] raised the issues with yourselves in January and I personally did with [Manager A] on last month’s review. We now already have 3 visits for 2023 at 75%. I hope there isn’t an expectation that I need to provide evidence for every day since the 1st of January when are trust with MAR is in question over this incident? 29 March 2023 As previous advised to [Manager D] and [Manager A], we do not have a phone available for your cleaners to use as a log in and log out system. This has been going on for months whereby the contract hasn’t been fulfilled because of Hilda’s actions. Whatever the outcome maybe from your internal process, she certainly will NOT be returning to our London office. The fact that this has even been suggested, shows that my concerns and comments raised on our last service review have been ignored. We have lost all faith and trust in MAR and the 3 site audits for 2023 that have been conducted so far have been marked at 75%, which is completely unacceptable and shows no improvement has been made. I have included our head of facilities into the email chain if any further Case Number: 2215789/2023 30 of 72 discussion is required on this

[108]Client S was reasonable and categorical in refusing to accept the Claimant back as the cleaner providing the services for which it contracted with the Respondent. Client S, entirely reasonably, would not have been concerned as to what mitigation the Claimant might point to in:108.1 not doing the hours which Client S had paid the Respondent for; or

108.2 not doing those hours at the times it had paid the Respondent for them to be carried out.

[109]Any such mitigation would have been a matter between the Respondent and the Claimant and Client S would entirely reasonably want to be kept out of such matters. Complaint by client S

[110]On 9 March 2023 there was the follow exchange on WhatsApp between Manager A and the Claimant [HB191]: 11:47 – [Manager A]: Hi Hilda How are you? 11:48 - [Manager A]: At what time you start and finish [Client S] yesterday? 12:11 - Hilda: Abouth 8 why 12:16 - Hilda: I finish 10.30 12:16 - [Manager A]: Could you please more specific at what time you started ? 8:00 or 8:30 ? 12:24 - Hilda: Was any problem 12:25 - [Manager A]: I just Need to know more specific time 13:24 - Hilda: Well exacrly and mnts i do not remember.thetr is anu problem 14:04 - [Manager A]: [Missed call] 14:20 - [Manager A]: [Missed call]

[111]I do not agree with the Claimant’s suggestion that this was an unusual question. I find that Manager A asked the question because she knew there were concerns about the Claimant not completing her hours and she wanted to gauge whether the Claimant understood what hours she should be doing. I consider that it was at this time that Client S had become unhappy with the standards of cleaning in their premises, had checked their CCTV recordings and had identified that the Claimant was spending substantially less time cleaning than they had contracted for. They sent Manager D an email on 10 March 2023 [HB317] with evidence of the Claimant’s recent attendance times saying: Case Number: 2215789/2023 31 of 72 “Please find attached required evidence for IN / OUT times.”.

[112]Manager D on 13 March 2023 then asked for CCTV screen shots for 16-22 January 2023. Claimant’s suspension and investigation

[113]On 9 March 2023 Manager D verbally suspended the Claimant and on the balance of probabilities I find that she knew the allegations that were to be put to the Claimant the following day.

[114]On 10 March 2023 Ms Banks issued a letter to the Claimant explaining her suspension on pay and inviting her to an investigation meeting. The letter read as follows [HB333]: RE: SUSPENSION FROM WORK & NOTICE OF INVESTIGATION This is to confirm that you were formally suspended on full contractual pay as of 9th March 2023, pending an investigation into allegations of falsifying company records (fraud) and failure to fulfil contractual obligations, namely working hours. While suspended, you remain an MAR employee and continue to be bound by your terms and conditions of employment. It may be necessary to contact you during any period of paid suspension and you are required to make yourself available during your normal working hours, unless annual or other leave has previously been requested and authorised. It should also be noted that suspension is not viewed, nor is it to be used, as a means of punishment. It is a neutral act, which allows a situation to calm and facilitates investigation. We have received evidence from the Client at [S] that shows you leaving your cleaning shifts on a number of dates before you have completed your contracted hours, as detailed below and attached: 09/02/2023 - IN 21:38 and OUT 22:31; total of 53 minutes on site 12/02/2023 - IN 22:03 and OUT 23:29; total of 1 hour 26 minutes on site 20/02/2023 - IN 21:40 and OUT 22:42; total of 1 hour 2 minutes on site 01/03/2023 - IN 21:04 and OUT 22:19; total 1 hour of 15 minutes on site Your contracted hours are 2.5 hours per day, Monday to Friday and, as you can see above, you have actually been completing significantly less time on some occasions but still claiming your full contractual hours on your time sheet. This could be perceived as fraud and, as such, an investigation will take place on Tuesday 14th March 2023 on site at SIS with [Manager D]. Please ensure you arrive in time to commence at 5:00pm. If you have any queries regarding the content of this letter, or cannot attend the hearing for any reason, please do not hesitate to contact me.

[115]It was Manager D who instructed Ms Banks to issue the letter. The Claimant Case Number: 2215789/2023 32 of 72 has never disputed that she did not work 2.5 hours each day at Client S. It was the allegation of fraud which particularly alarmed her. Manager D, before suspending the Claimant, knew that she herself (Manager D) was completing the timesheet that Manager D submitted to Client S. Manager D knew that she was completing the timesheet without asking the Claimant for her arrival and departure times and knew that there was no book at Client S into which the Claimant could have documented those times. There is a question as to whether the Claimant had accurately recorded her times prior to November 2022 (when there was a book for the Claimant to complete) but that was not the period that was called into question. Manager D did not therefore have a valid basis on which to raise the allegation of “falsifying company documents (fraud)”.

[116]The Respondent said that ‘fraud’ was just a term they used in these circumstances and sought to downplay the seriousness of the allegation. They said that it was not meant in the criminal sense. I do not accept that. The Respondent should have realised that this was a serious allegation and, before suspending the Claimant and accusing her of fraud, should have established that there was a reasonable basis for the allegation based on the evidence that they had and relied upon (there was in fact no such evidence).

[117]The suspension letter enclosed the CCTV evidence relied upon [HB313, 320- 324]. 14 March 2023 – Investigation meeting

[118]The investigation meeting was not arranged to take place in a neutral location, it took place at Client S’ site. This was particularly difficult for the Claimant because she thought she had a good relationship with that client but she thought they now suspected her of being a criminal.

[119]Manager D conducted the hearing. There was an independent notetaker at the hearing and the notes, as far as relevant record as follows [HB327-238]: D: What is in your contract regarding this site? H: I started as a cover cleaner, and then progressed to work at SIS. I have been told that when my job at SIS is done I can go home. During the week I was doing my job. D: I have asked you many times to do something and often it was not done. H: I know I’m not perfect. D: I do audits... H: I do try to do every corner. If I open my mouth you’ll be surprised. D: We are talking about [Client S] now. What is in your contract? H: MAR is abusing my age. I never received a contract. D: The contract was sent to you on 01st of September 2022. Case Number: 2215789/2023 33 of 72 H: I never received it. D: It’s been sent to your email. H: It was sent to my email? I never received it. I never seen this contract. D: It was sent to you on 23/09/2022. H: I’m not stupid. I never received it. D: I will check with our HR which email address they sent it to. H: I don’t understand why [Manager A] said that I put money in my pocket? In that case we need the Police. D: OK. I have evidence of poor quality of cleaning. We also have video evidence of you coming in and out the building. H: You do the job and you go. I’m just telling you. D: You are getting paid per hour not per job. H: I didn’t see the contract. D: Reading messages sent by Hilda (screenshots of text messages between [Manager K] and Hilda). H: Do whatever you want. D: This is Investigation Meeting not disciplinary. H: MAR is not going to play with me. When they needed me I was OK. D: On 16/01/2023 you worked just 42 minutes. H: Shouting and it’s difficult to understand. D: Please, calm down. H: I never see the contract. D: I think I will finish this meeting as you don’t let me talk. H: How long it will take, this meeting? D: In one week you have worked just 6 and a half hours. [Manager K] texted you to do extra hours. H: Shouting again. D: I’m not able to continue the meeting because of the shouting and offensive behaviour. Case Number: 2215789/2023 34 of 72 H: It’s impossible I did only 6 and a half hours. In other places worst things happen. D: We have evidence that you worked only 6 and a half hours. H: Give me a break. Never mind. Thank you very much. D: I want you to sign the papers. H: I will sign nothing. I never know about this contract. I was coming on weekends. You got my money. It has to be done in a right way. I never received the letter. D: Maybe it’s in your Spam folder? I have the text message you sent to [Manager A] that you started at 8 PM and worked till 10:30 PM. It means that you know exactly how many hours you are expected to work. You left that day after 1 hour and few minutes. H: Signs Investigation Meeting papers and leaves the room. Meeting Closed.

[120]I find that the notes are a fair summary of the meeting and that the Claimant did act as the notes describe, she was upset and hurt by the accusation of fraud and had difficulty articulating herself because of the language barrier.

[121]On 20 March 2023 Ms Banks asked Manager D for the text message exchanges between the Claimant and Manager K that Manager D had referred to in the investigation minutes so that they could be included as evidence in the disciplinary invitation letter. At the end of the notes of the investigation meeting were embedded screen shots of three WhatsApp exchanges:121.1 Two of which were with the Claimant’s previous manager, K, and indicated that the Claimant knew that 2.5 hours of work were needed at Client S.

121.2 The third of which was the exchange quoted above of 9 March 2023 between Manager A and the Claimant.

[122]I find that these screen shots were added pursuant to Ms Banks’ request of 20 March 2023. They were shown to the Claimant at the investigation meeting and were then referred to in the letter inviting the Claimant to a disciplinary hearing.

[123]As I have said, I conclude that the Claimant did know that she should be doing 2.5 hours Monday to Friday at Client S. 24 March 2023 – disciplinary hearing

[124]On 22 March 2023, Ms Banks wrote to the Claimant further to the investigation meeting to invite her to a disciplinary hearing on 24 March 2023 with Ms Jupp. The letter read as follows [HB337-338]: […]The allegations made against you are: Case Number: 2215789/2023 35 of 72• Falsifying company records (fraud)

• Failure to fulfil contractual obligations, namely working hours During the investigation it was noted that you were very confrontational and responded to questions by shouting and talking over [Manager D]. This made it very difficult for [Manager D] to carry out the investigation and ultimately the meeting had to be terminated. You were shown screenshots of text messages between yourself and the previous Area Manager, [Manager K], where you were advised the hours you are expected to work at [Client S]. You also confirmed you were aware of these hours in a text message to Manager A. Having fully considered the allegations made against you, together with the notes from the investigatory meeting and supporting evidence, it has been decided that your conduct should be addressed via appropriate disciplinary procedures. You are invited to attend a disciplinary hearing on Friday 24th March 2023 onsite at the [Client S] office. This will be chaired by Joanne Jupp and will commence at 3:30pm. At this hearing, we will discuss the allegations that have been made against you and you will be given the opportunity to make representations that will be taken into account when deciding the outcome. It is important to note that, should you fail to provide a reasonable explanation to the above, your employment may be terminated due to gross misconduct. You have the right to be accompanied by a fellow employee or trade union representative and, should you wish to do so, it is your responsibility to make the arrangements. If you wish to contact any employees who you feel could assist you in preparing an explanation for the allegations made against you then please contact me in order that I can arrange to take witness statements from them. If you fail to attend, without notice or a valid reason, a decision may be made in your absence based on the evidence available at the time. Please find enclosed minutes from the investigatory meeting, text message and CCTV evidence and the Company Disciplinary Procedures extracted from the Employee Handbook, for your reference. If you have any queries regarding the content of this letter, or cannot attend the hearing for any reason, please do not hesitate to contact me in writing.

outcome.

[125]The disciplinary hearing went ahead on 24 March 2023 but I was not provided with any notes of the meeting. The Respondent allowed the Claimant to be accompanied by her daughter as her lay representative to assist the Claimant given that English is not her first language. The Claimant raised a query about use of the CCTV images and whether they could be used in her disciplinary due to the signage within [Client S] that explained the purpose of the CCTV cameras. Case Number: 2215789/2023 36 of 72 The meeting was therefore postponed so that this could be considered. 27 March 2023

[126]On 27 March 2023 Manager A, Manager D and Ms Jupp exchanged the following WhatsApp messages [342-343]: D: Good morning Jo, Is Hilda been dismissed? Don't know if put suspension on last Friday. Thanks Jupp: Morning. She is still on suspension. I need to speak to HR today but think she will have to return. A: Morning Jo Why? D: Well, for sure she won't be back to [Client S] as client doesn't want her Jupp: I'm waiting for some clarification from HR legal about issues they have raised on use of CCTV. Also she doesn't actually sign in anywhere and we don't ask for the hours she has worked. D: CCTV belongs to [Client S] and I believe they can use it for any purpose Many employees don't sign in and Don't send the hours. This doesn't mean they can do whatever they want Even day before our meeting with client I called to Hilda to make sure everything is nice clean. And on that day she left after 1 h leaving dusty office Jupp: Have you any messages to Hilda about the cleaning standards? [D: reply - Yes. Of course] Jupp: We need to have signing in books at every site as this is leaving us wide open. The cleaner/ supervisor then needs to take a picture and send at the end of every week [D reply - Ok. I will start working on it]

[127]The Claimant then sent an email to Ms Jupp and to the Respondent’s Head of HR which I accept summarises what was discussed at the hearing [HB344]. Should CCTV evidence have been used?

[128]I find that, from the perspective of employment law and the Claimant’s contract of employment, the Respondent took a reasonable decision to use the CCTV footage provided to it by Client S given that Client S had used it to reach their conclusion that they were not getting the hours of cleaning that they were paying for. I do not accept the Claimant’s various arguments in this regard (or that the way in which the evidence was used was intrusive). I also note the following ICO correspondence to which I was taken [514]: 26 October 2023 Case Reference: IC-245336-N1G0 Dear Rocio Del Pilar Bruna Rojas Thank you for your email of 4 October 2023. Case Number: 2215789/2023 37 of 72 The organisation you have complained about have advised that their reasoning for using the CCTV in this matter was fraud prevention - which therefore would fall under legitimate interest, as they as an organisation would then have a legitimate to use the data in the way that they have done. It is important to note that the organisation may have misquoted the wrong conditions for processing, however the ICO are satisfied that there was a lawful basis for processing. The organisation may also be relying on other legislation alongside of the data protection legislation regarding this matter however this would be a question you would need to make directly to them so they can advise if this is the case. Yours sincerely

[129]However, at the time, the Respondent was concerned that by using Client S’ CCTV screen shots it might cause a dispute between Client S and the Claimant with respect to data protection laws. On 6 April 2023 Ms Jupp therefore wrote to Client S as follows [HB353]: However, if we choose to progress this way, this may cause [Client S] issues should Hilda wish to take this further and challenge the use of the images. We therefore feel we have the following options:• Hilda investigation is continued and she is disciplined for her poor performance. This is unlikely to result in dismissal without the CCTV images as evidence. Hilda would then come back to work, where we will closely monitor her performance and fulfilment of contractual obligations.

• We pursue the investigation with the use of the CCTV images, which could lead to dismissal for gross misconduct. Hilda has given indication that she will challenge the use of the CCTV images, therefore this could cause issues around GDPR.

• We remove Hilda from site as per your email below, which is classed as “third party pressure” and irrelevant to the images. However, this is also likely to trigger a complaint from Hilda as it would be obvious that CCTV findings led to this result.

[130]Client S, understandably, were not pleased about being drawn into a matter which they saw as being between the Respondent and the Claimant. They took the view that they had not breached data privacy laws and commented in a response on 12 April 2023 [HB352]: As you have failed to address the performance matters, of consistent failures of quality (75% simply isn’t good enough), [Client S] took it upon ourselves to investigate why this might be the case, and subsequently provided you with evidence (upon request) that your employee was NOT attending site for you to meet your contractual obligations leaving MAR in Case Number: 2215789/2023 38 of 72 a position whereby you are expected to refund the cost of services you’ve failed to provide. Regarding your points below, none of these are relevant to [Client S], nor are they our decision to make. Your decision should be based on how you can best deliver the services to meet the contractual standards between us and if YOU decide to discipline your member of staff for failure of the employee to meet their employment contract in line with your employee terms and conditions has absolutely nothing to do with [Client S]. […] How you address your member of staff is not for [Client S] to consider, or even know about.

[131]I note here that on 14 April 2023 that Client S also commented in email correspondence to the Respondent: “There is no mention of a replacement cleaner being made permanent, which really comes down to a trust issue, on MAR being able to improve the services. This is one key point we’ll need to discuss.” [HB349]. Rescheduled disciplinary hearing – 26 April 2023

[132]On 20 April 2023 Ms Banks wrote to the Claimant to invite her to a rescheduled disciplinary meeting with Ms Jupp to take place on 26 April 2023 and her letter read [HB375]: Following the postponement of your disciplinary hearing on Friday 24th March 2023 to allow for further investigations, I am now writing to inform you of the next steps. As mentioned in my previous letter, dated 22nd March 2023, the allegations made against you were as follows:• Falsifying company records (fraud)

• Failure to fulfil contractual obligations, namely working hours As previously explained, it was noted that you were very confrontational during the investigation meeting, which made it difficult for your Manager, [Manager D], to continue and ultimately the meeting had to be terminated. At this time, you were shown screenshots of text messages between yourself and the previous Area Manager, [Manager K], where you were advised of the hours you are expected to work at [Client S]. You also confirmed you were aware of these hours in a text message to [Manager A]. When you arrived for the disciplinary hearing, you raised queries about the source of the CCTV images used for the investigation, and the legality of their use under data protection law. The disciplining officer decided to postpone the hearing to allow time for the Company to respond to your query and also to further review the merits of the case. Case Number: 2215789/2023 39 of 72 As you are aware, the use of the CCTV images was deemed appropriate for the overarching goal of investigating and preventing a potential fraud. Therefore, the images remain part of the disciplinary evidence pack. You have also queried the additional evidence of your poor performance mentioned by [Manager D] during the investigation. Please note that you are not being disciplined for poor performance so this is not relevant to the case and will not form part of the evidence pack. Upon further review of the evidence, the disciplining officer has decided to reduce the allegations made against you to failure to fulfil contractual obligations (working hours) only. Whilst you have failed to inform the Company that you had been overpaid for hours not worked, you did not actively seek to claim them in the first place, rather management completed timesheets on your behalf and assumed that you were fulfilling your hours. […] The reduced allegations will be discussed and you will be given the opportunity to make representations that will be taken into account when deciding the outcome. It is important to note that, should you fail to provide a reasonable explanation to the above, a final written warning may be placed on your file. You have the right to be accompanied by a fellow employee or trade union representative and, should you wish to do so, it is your responsibility to make the arrangements. If you wish to contact any employees who you feel could assist you in preparing an explanation for the allegations made against you then please contact me in order that I can arrange to take witness statements from them. If you fail to attend, without notice or a valid reason, a decision may be made in your absence based on the evidence available at the time. You were already provided with all evidence, such as minutes from the investigatory meeting, text message and CCTV images, together with the Company Disciplinary Procedures extracted from the Employee Handbook. If you have any queries regarding the content of this letter, or cannot attend the hearing for any reason, please do not hesitate to contact me in writing.

[133]The Respondent dropped the allegations of “Falsifying company records (fraud)” and decided to drop the threat of dismissal in respect of the remaining allegation (not fulfilling contractual hours). This was the right decision because the Claimant had not been completing and had not been asked to complete time sheets for her work at Client S. The Respondent had, through a number of practices, given the impression to the Claimant that it was lax in its stance towards the hours worked for clients. Those practices are described above but can be summarised as follows and I refer to them as “the Mitigating Case Number: 2215789/2023 40 of 72 Circumstances”):133.1 In the Autumn of 2022 asking the Claimant to do additional work at OC that meant that the Claimant could not feasibly complete all the hours she was being asked to do (including at Client S);

133.2 The Double Time Practice;

133.3 Failing to put in place a proper process, from the end of the Autumn of 2022 and into 2023, for the Claimant to log her hours worked.

133.4 On 21 February 2023 when the Claimant was told to go to a meeting at OC at a time which the Respondent knew would mean that the Claimant would not complete her hours at Client S.

[134]I was provided with a copy of the disciplinary hearing notes [HB375-378] and the meeting lasted an hour. At the hearing (but for the avoidance of doubt I have taken into account the full content of the notes of the hearing):134.1 The Claimant confirmed that her contractual hours at Client S were 2.5 hours and that it had been 2 hours at one stage under the instructions of Manager K and she could not remember when it reverted to 2.5 hours.

134.2 The Claimant said in response to a question about when her hours reverted to 2.5: “I am not sure there was such a lack of consistency and lack of clarity as I was being asked to go and cover different places so to finish early, go to [Client S] on a Sunday, Cover [OC]. 18/2/22 - messages from [Manager K] asking for all these changes. March and April I was paid but there was no contract send to confirm working at [Client S].”

134.3 The Claimant referred to the fact that Manager D had known that she and Irina had worked at Client S on Saturday 22 October 2022 and that Manager D had not queried why the Claimant had attended the site at the weekend.

134.4 As regards the specific dates when the CCTV suggested that the Claimant had not completed 2.5 hours the Claimant said: 9 February 2023 - “I have got the bin bags. I cannot remember but I may have gone back in but I cannot remember. I never left is messy, I kept it tidy and I would come and do the longer jobs as a weekend”; 12 February 2023 - “Yes as I said I come and do all the detailing work at the weekend” and in response to a question about who had agreed weekend working “From the start always been this way and cannot understand why this is now a problem. [Manager D] knew and this is making be very upset considering how much I have helped the company. Also, there is no out screenshot.” 20 February 2023 – “I was running to cover [OC] – I think, I can’t remember I think I was going straight to [OC].” Case Number: 2215789/2023 41 of 72 26 February 2023 (5 hours on the Sunday) - “As advised before this was for detailing work and make up over the weekend.” 1 March 2023 – “Bin bags, may have come back. Sometimes put rubbish out when lots of bags and then come back. Managers were aware that weekend working was not out of the norm. If we take working from 6th Feb to the 5th March which are the dates that the images cover and assume that I worked correctly all other times and only worked the weekends detailed then I have worked 48 hours and 11 mins of the 50 contracted hours which is not a lot considering all the roles I have been supporting and the leadership role I have taken on to sort out payroll issues for others.”

134.5 As regards weekend working the Claimant also said “Yes normally weekend, as stated I have only taken into account the weekends in the screenshot, I always attend but I am not perfect.”

134.6 There was a signing in book but she had not seen it for months.

[135]The Claimant brought a substantial volume of documents to the hearing [HB379 to 389] which Ms Jupp needed to read and consider. Ms Jupp asked for the documents on 27 April 2023 [370-371] which the Claimant provided [379-389] and Ms Jupp reviewed. I accept that at some point after this date Ms Jupp had a conversation with Client S but it was clear to her that they would not accept the Claimant back on their contract [HB397-398].

[136]I would have expected there to have been some formal record of a discussion taking place between Ms Jupp and Manager D about the Claimant’s assertion that it had been discussed with her that she would make up hours at the weekend at Client S. I would also have expected Manager D’s response to then have been put to the Claimant before a disciplinary outcome was issued. Ms Jupp had highlighted to Manager D (as referenced above) the need to improve the standards of time record keeping. Disciplinary outcome

[137]It took quite some time for Ms Jupp to instruct Ms Banks to issue her disciplinary outcome which was sent on 16 May 2023 and read [HB395-396]: […] During the investigation, and the subsequent disciplinary hearing, you have not provided a reasonable explanation as to why you are not fulfilling your contractual hours. It was noted by the disciplining officer that you were aware of your contractual requirements. You claimed that sometimes you take bin bags out and then come back to finish your shift, however, this was not confirmed by the available evidence. It was also noted that despite claims of working during the weekend, there were no entries in the signing-in book for any of the weekends, including the 22nd October 2022 (mentioned by you). Case Number: 2215789/2023 42 of 72 Furthermore, you implied that the standard of cleaning continuously met the required level. However, this was not the case and it caused the client to look into the fulfillment of hours and then request credits back for the missing hours. This caused a significant financial detriment to the Company. You provided additional evidence that you wanted the disciplining officer to consider as part of the decision-making process. I can confirm that this has taken place. Having reviewed all the available information, notes from the investigation meeting and your admissions during the hearing, the disciplining officer has decided to uphold the allegations made against you. Due to the seriousness of these allegation, it has been decided that a final written warning is the appropriate sanction. This warning will be placed on your personal file and will be disregarded for disciplinary purposes after a period of 12 months, provided your conduct reaches a satisfactory level and no further incidents are reported. You are required to adhere to your contractual working times and hours, in order to maintain the expected cleaning standards for our clients. Even if you think the job can be done in less time, there are always additional tasks that can be done in your spare time that you are being paid for. This will be monitored over the next 12 weeks and, should any similar matters arise in the future, further disciplinary action may be taken. You will be contacted separately with regards to your return from work following the suspension. You have the right to appeal against this decision and, should you wish to do so, please write to the HR Department within 5 working days of receipt of this letter. An HR representative will then appoint an objective Appeal Officer. […]

[138]On the balance of probabilities I consider that the Claimant was not sufficiently making up a shortfall in her hours during the week at the weekend. I consider that had she been doing so Client S would not have complained about the standards of cleaning. However, the Claimant’s suggestion that Manger D knew that the Claimant was making up her hours at the weekend was not investigated as it should have been. 19 May 2023 meeting

[139]It having been decided that the Claimant would not be dismissed and it being unlikely that Client S would have the Claimant back, it seems to me that there could have been a discussion with the Claimant of the other options for her continuing to work for the Respondent sooner but having been slow to give a disciplinary outcome the Respondent also did not contact the Claimant to take things forward until 17 May 2023 when it wrote to her as follows: Case Number: 2215789/2023 43 of 72 […] RE: Meeting to discuss Client’s request for removal from post I write following the meeting that took place on 26th April 2023. As you are aware, our intention was to issue you with a final written warning and bring you back to work, following suspension. Unfortunately, upon consultation with our client, I can confirm that they were not satisfied with this outcome and I now write to advise you of the next steps. As you are aware, you were formally suspended on full pay to allow for an impartial and thorough investigation into the allegations raised by the Client, after they became concerned about the fulfillment of your contractual hours. As the process concluded, we asked the client to allow you back on site, where your conduct would be closely monitored. Unfortunately, the Client is not satisfied with the outcome of our internal process as they have lost trust and confidence in your ability to carry out your role with due diligence towards time and quality. As a result, the Client has exercised their contractual right to request a change in personnel. MAR Management have attempted to further explain the details of your case in the hope that the decision will be revoked. As such, we now invite you to attend a meeting to discuss the above request and how this may affect your employment with MAR. This meeting will take place on Friday 19th May 2023 at 3:30pm, at the following venue: […] This meeting will be chaired by Joanne Jupp. You have the right to be accompanied by a fellow employee or trade union representative and, should you wish to do so, it is your responsibility to make the arrangements. If you fail to attend, without notice or a valid reason, a decision may be made in your absence based on the evidence available at the time. During this meeting we will discuss the Client’s decision and all available options, however, should we fail to find an acceptable solution, your employment may be terminated. If there is anything you would like to propose for consideration, you can make representations at the meeting. If you have any queries regarding the content of this letter please do not hesitate to contact me.

[140]This letter suggests that there remained hope that Client S would take the Claimant back (“MAR Management have attempted to further explain the details of your case in the hope that the decision will be revoked”). The Claimant was accompanied by her daughter at the meeting and minutes of the meeting were Case Number: 2215789/2023 44 of 72 taken by HR. Owing to the central importance of what was said at the meeting I note here the minutes in full after the point at which the Claimant had confirmed that she understood the purpose of the meeting [HB405-407]: […] JJ: As part of the process we review any other vacancies that we have within the business. I can advised that there is a vacancy for a cleaner at Knightsbridge school should you be interested in this role. RBR/HB: HB’s trust has been broken. The data provided back by MAR further to the SAR has coloured the story even more. It shows that it would not be possible to return and work with [Manager D] and [Manager A] and Aga. There are issues with the language used, such as ‘fraud’. The way the investigation was handled shows a conflict of interest, although I don’t believe it was personal. It has been very distressing for HB. She doesn’t speak the language and to be accused of all these things when she has been very helpful. We accept that if there were quality issues then they need to be addressed, but there seemed to be no logic in how it was managed. Messages and pictures but then no feedback or checking. JJ: Sorry, whilst I am not dismissing your comments, the meeting today is to discuss the client’s site removal request and how we can support HB. I have not seen the data sent as t has been sent to you directly. Can you please confirm, further to the comments above, that Hilda would not be willing to look at any other roles within MAR? RBR/HB: No she is not willing to look at any other roles as the environment has become toxic for HB to work in. [Client S] were right to raise any issues they had but the scale that is has escalated is expediential. HB has received calls from other colleagues asking what has happened and has she been stealing. The whole environment has built up. JJ: Can you confirm who has been contacting you? RBR/HB: I don’t have how they know but I have had calls from people direct and it is highly stressful. JJ: I have taken on board all that you have said and will speak with ES about any information that will be required to action from an operations perspective. I would now like to discuss next steps in relation to this meeting. The letter advised that should we be unable to find suitable alternative working arrangements then this will result in HB’s contract being concluded as of today. HB will be paid notice period, which will be confirmed in writing, and also any holiday that has been accrued since the beginning of 2023. RBR/HB: HB understood that this was going to be the outcome of the meeting. HB started in December 2018 so understands she would be entitled to 4 weeks’ notice. The language in the previous letters is still an Case Number: 2215789/2023 45 of 72 issue as it still mentions fraud which I assume was used so that GDPR would not be an issue. The story keeps changing about how CCTV was requested and why. [Manager D] using words like “ I believe they can use “. Wording within [Manager A] messages have triggered alarms after issues have been raised. HB has not signed a working time directive opt out and she worked over 300 hours in September. There are some dangerous practices going on that need to be addressed urgently within MAR. Also the hours have not been averaged out in relation to holiday etc so that also needs to be looked at. JJ: I appreciate you bringing this up and would ask that any concerns about data provided is raised with ES. As advised earlier I have not seen the data. RBR/HB: We would be willing to provide approval for you to review all the data so the issues can be addressed with Management. JJ: Have you any other question? RBR/HB: No the process is self-explanatory. JJ: A letter will be sent confirming any payments due and also the appeal process. RBR/HB: Thank you for the time you have taken with us to go through these issues. JJ: No problem. Have you any other questions. RBR/HB: Only that we hope the wording in the letter addresses some of the concerns we have raised. JJ: Thank you for your time today and good luck for the future Meeting concluded at 16:35 Letter to the Claimant of 30 May 2023

[141]Following the meeting Ms Banks issued the following letter to the Claimant on 30 May 2023 [HB412]: RE: Meeting Outcome Further to your meeting with Joanne Jupp on 19th May 2023, I now write to confirm the outcome. As you are aware, the client requested your removal from site due to their lack of confidence in your ability to fulfil your contractual hours. You were informed that, despite efforts made by the Company to reinstate you back into your role at SIS, the client has insisted that you remain removed from their site, exercising their contractual right with MAR, under the threat of termination. Case Number: 2215789/2023 46 of 72 As discussed with Ms. Jupp during the meeting, you were offered an alternative position at a nearby site in order to protect your employment. You declined this alternative position, stating that you have lost trust in MAR as an employer and, effectively, tendered your resignation. If your resignation was tendered in a heat of the moment and, on reflection, it was not your intention to resign, please contact me as soon as possible and by no later than 1st June 2023. We will then investigate all concerns you raised during the meeting as part of an internal grievance procedure, as it is our aim to create a safe and enjoyable working environment for all colleagues. You will also be given the opportunity to take the alternative position, as discussed. If we don’t hear from you to the contrary, we will have no alternative but to accept your resignation with effect from 19th May 2023. In this case, with no admission of liability of any kind but simply as a gesture of good will, the company will pay in lieu of your 4 weeks’ notice period, along with any other outstanding payments (including your accrued holiday pay) on the next pay date and your P45 will follow shortly after. If you have any queries regarding the content of this letter please do not hesitate to contact me. Correspondence May 2023 – July 2023

[142]The following emails were then exchanged: Email Claimant to R’s Head of HR - 31 May 2023 13:55 Subject: Re: Meeting Outcome Letter […] We are taking legal advice at the moment and ask that the 1st of June deadline be extended. […] Rocio & Hilda. Email from R Head of HR to the Claimant and others – 01 June 2023 at 10:20 Subject: RE: Meeting Outcome Letter […] I can confirm that we are happy to extend the timeframe for your response. Can you please get back to us by Friday, 9th June 2023. We will pay your suspension pay up until 19th May but we will hold off with any notice payments until you get back to us with your decision. Case Number: 2215789/2023 47 of 72 […] Email from Claimant to R Head of HR – 8 June 2023 at 1:11 PM Subject: RE: Meeting Outcome Letter Following consultations, without prejudice I will be rejecting what was offered in the outcome letter. I will send another email requesting evidence of the client request. You can make your decision Email Claimant to R’s Head of HR - 8 June 2023 at 13:16 Subject: RE: Meeting Outcome Letter […] I request a copy of the signed and dated contract between [Client S] and MAR showing the clause allowing for Hilda's removal. I request evidence of the client asking this clause to be triggered and actioned upon to remove Hilda. Kind regards, Hilda and Rocio. I asked my daughter for help drafting email

[143]Over a month then passed before the Respondent replied and the following correspondence ensued: R’s Head of HR to the Claimant and others - 12 July 2023 - 16:37 Dear Hilda, As per previous correspondence, all documents relating to the commercial relationship between MAR and their clients are confidential. Claimant to R’s Head of HR - 14 July 2023 11:24 Subject: Hilda | SIS | MAR Hi Ewa, I'm happy to attend any meetings you require; I'll exercise my right to bring a union representative when that's scheduled. I want to reiterate that I have not resigned from the company at any point. Case Number: 2215789/2023 48 of 72 However, regarding the alternative position offered, I'm not able to accept, analyse, or consider an alternative role until I have all the facts with me to confirm that the client-request-for-removal process is happening in a legitimate fashion. I know you've already said no to sending me the following a few times, but I'll politely request again, as I'm happy to consider any alternatives if:• I get confirmation of SIS TV requesting the change of employee.

• I get confirmation of MAR fighting my case.

• I get confirmation of the contractual clause within the contract between SISTV and MARFM signed and dated. As I am still employed, I would like to know if MAR plans to pay my salary in full while these discussions continue. At the present moment I have not received my salary since last mentioned in the letter. I look forward to hearing back from you and the team at MAR regarding next steps. Kind regards, Hilda Bruna Garcia. R’s Head of HR to the Claimant and others - 14 July 2023 12:18 Subject: RE: Hilda | SIS | MAR Dear Hilda, You are more than welcome to attend the meeting with a Representative. As confirmed previously on at least two occasions, all documents relating to the commercial relationship between MAR and their clients remain confidential. The written communication about your removal from site contains commercial data that cannot be redacted. I can confirm, however, that because of this situation, MAR was at risk of losing the contract and the steps we have taken were a last resource after the Client refused to allow you back on site. For the avoidance of doubt, I want to be very clear with regards to your employment status – MAR offered you an alternative role, which you refused to consider. The Company acted reasonably in their efforts to ensure you continue working. The decision not to attend work, was yours. Therefore, there will be no payments made to you for that period. I will shortly confirm the proposed date for the meeting. Kind Regards [Head of HR] Case Number: 2215789/2023 49 of 72

[144]The Head of HR then wrote to the Claimant as follows [HB418]: 20 July 2023 at 12:44 Subject: RE: Hilda | [Client S] | MAR Attachments: Hilda BRUNA GARCIA - Follow-up meeting Outcome May 2023.pdf; Hilda BRUNA GARCIA - Termination Letter.pdf Dear Hilda, I discussed your case with Joanne, who met with you on 19th May 2023. Having read the meeting minutes from that meeting, and after speaking to Jo, it appears that you were already told how this situation will affect your employment. Please see below from the meeting notes, which are attached for ease of reference: (…) JJ: I have taken on board all that you have said and will speak with ES about any information that will be required to action from an operations perspective. I would now like to discuss next steps in relation to this meeting. The letter advised that should we be unable to find suitable alternative working arrangements then this will result in HB’s contract being concluded as of today. HB will be paid notice period, which will be confirmed in writing, and also any holiday that has been accrued since the beginning of 2023. RBR/HB: HB understood that this was going to be the outcome of the meeting. HB started in December 2018 so understands she would be entitled to 4 weeks’ notice. (…) Based on the above, I attach the formal termination letter. We also decided to share the with you the email we received from the client, following a series of discussions about your return to work. Please note that it had to be heavily redacted due to other commercial information contained within. I hope this will clarify your concerns. “your internal process, she certainly will NOT he returning to our London office. The fact that this has even been suggested, shows that my concerns and comments raised on our last service review have been ignored. I have included our head of facilities into the email chain if any further discussion is required on this.” Kind Regards Case Number: 2215789/2023 50 of 72

[145]The Head of HR’s email attached the following letter [HB425]: 20th July 2023 Dear Hilda, RE: Termination of Employment I write further to my letter dated 30th May 2023, following your meeting with Joanne Jupp on 19th May 2023 and your subsequent email communication. Following a review of the previous correspondence and meeting minutes from 19th May, it is noted that you were pre-warned of the potential consequences of the client’s request to remove you from site. During the course of the above-mentioned meeting, you refused to consider other employment options, which at that time was taken as a verbal resignation. As documented in the minutes, you were told that your refusal to accept a reasonable, alternative position meant your employment would be terminated. As a Company, we felt that your refusal to consider alternative roles may have been made in the “heat of the moment” and we wanted to provide you with some time to review your decision. You then clarified that it was not your intention to resign from your post, however, you were still not prepared to accept our offer of further employment. As there are no longer any other employment opportunities available at the time of writing this letter, we now have no option but to instigate the process explained to you in your meeting with Ms. Jupp. As such, your employment is treated as terminated for “some other substantial reason”, namely third party pressure, as of 19th May 2023. You will be paid in lieu of your 4 weeks’ notice and any unused holidays accrued up to the termination date. You have the right to appeal against the above decision, by writing to the HR department within five working days of receiving this letter. If we don’t receive your appeal by 28th July 2023, we will consider the matter closed and all outstanding payments will be released. Yours sincerely Carolyn Banks HR Advisor Appeal against dismissal

[146]On 28 July 2023 the Claimant submitted her appeal against her dismissal [email HB426 and attachment HB427 - 470]. It was a lengthy document that, amongst other things, sought to reopen the disciplinary allegations against the Claimant and included a large number of screen shots of other Case Number: 2215789/2023 51 of 72 correspondence/documents.

[147]On 4 August 2023 the Claimant’s daughter sent her trade union an email (referred to by the Claimant at CWS93b) saying: “I was reading through the acas website and said appeal could result in my mother being reinstated automatically which is not what we want to do at any point. That it could revert the decission as if "it never happened". She was treated terribly by them and I wanted to make sure what the options were. If using appeal was the right word or rather a grievance? I dont know. Specially since we cant even read her contract of employment in the illegible state its in. Let us know please”.

[148]I therefore conclude that, subject to the Respondent showing contrition for what it had got wrong, the Claimant did not want to go back to work for the Respondent.

[149]ACAS early conciliation started on 7 August 2023 and ACAS issued their certificate on 18 September 2023 by email [HB1]

[150]It was not until nearly one month later, on 25 August 2023, that the Respondent finally contacted the Claimant to arrange an appeal meeting to take place on 30 August 2023 at 11:00am and to be chaired by David Punter (Sales Director at the Respondent) [481]. For the first time the Respondent arranged for a Spanish speaker to be present to act as a witness, notetaker and translator.

[151]An email of the same date to the Claimant’s Trade Union makes clear that either the Claimant or her daughter were not available on the date proposed for the hearing [HB482].

[152]I accept Ms Banks’ evidence [CBWS26] that despite the email on 25 August 2023 [HB482] indicating the Claimant had knowledge on the 25 August 2023 that she was going to be away at the time of the appeal hearing on 30 August 2023, the Claimant purported to the Respondent that she did not see the appeal hearing invitation and only notified the Respondent that she was on holiday without internet over two hours after the appeal hearing was scheduled to take place and after the Respondent had contacted the Claimant to enquire where she was. Ms Banks therefore invited the Claimant to attend a rescheduled appeal hearing on 5 September 2023 [HB484-485].

[153]On 31 August 2023 in an exchange with her Trade Union, the Trade Union confirmed that they agreed with the Claimant that if she did not want to be reinstated then it seemed “rather pointless to go through an appeal process” and that the Trade Union representative would not be available on 5 September Case Number: 2215789/2023 52 of 72 2023. The Trade Union representative therefore contacted the Respondent to cancel the appeal meeting [HB486]. Ms Banks, on 1 September 2023, found out that the Trade Union had cancelled the rescheduled appeal hearing citing that the Claimant had lost all trust and confidence in the Respondent; they informed the Respondent she did not want to pursue her reinstatement and believed the appeal would be fruitless (CBWS28 [486-488]).

THE LAW

[154]The parties should note that I have considered but, in the interests of proportionality, do not commented on all of the law to which I was referred in submissions by the parties. Resignation or dismissal

[155]I accept the Respondent’s submission that the question of whether the Claimant resigned or was dismissed is an objective one that I must determine after considering all the facts available to the parties at the time.

[156]I accept the Respondent’s submission that Martin v Glynwed Distribution Ltd

[1983] ICR 511

, CA (Sir John Donaldson MR 43) is Court of Appeal authority for the position that: ‘Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, “Who really terminated the contract of employment?” If the answer is the employer, there was a dismissal’

[157]I also accept that the corollary to this is that if the answer is the employee, then clearly there was a resignation.

[158]The Respondent referred to the findings in East Kent Hospitals University NHS Foundation Trust v Levy EAT 0232/17. However, I do not consider that this case is analogous to the findings in that authority (where there was a dispute as to whether the words ‘notice of resignation’ could be taken to mean notice of resignation from employment as a whole or notice of resignation from a specific role in order to take up another role with the same employer). Constructive unfair dismissal

[159]Under section 95(1)(c) of the Employment Rights Act 1996 (“the ERA”), an employee is dismissed if he terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

[160]If the claimant’s resignation can be construed to be a dismissal, then the issue of the fairness or otherwise of that dismissal is governed by section 98 (4) of the Act which provides: “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably Case Number: 2215789/2023 53 of 72 or unreasonably in treating it as a sufficient reason for dismissing the employee, and –

(b) shall be determined in accordance with equity and the substantial merits of the case”.

[161]The best known summary of the applicable test for a claim of constructive unfair dismissal was provided by Lord Denning MR in Western Excavating (ECC) Limited v Sharp

[1978] IRLR 27

: “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 his employer’s conduct. He is constructively dismissed. The employee is entitled in these 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 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: for, 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.”

[162]In Tullett Prebon PLC and Ors v BGC Brokers LP and Ors Maurice Kay LJ endorsed the following legal test at paragraph 20: “… whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”

[163]In Courtaulds Northern Spinning Ltd v Sibson it was held that reasonable behaviour on the part of the employer can point evidentially to an absence of significant breach of a fundamental term of the contract. However, if there is such a breach, it is clear from Nottingham County Council v Meikle

[2005] ICR 1

CA; Abbey Cars (West Horndon) Ltd v Ford EAT 0472/07; and Wright v North Ayrshire Council

[2014] IRLR 4

EAT, that the crucial question is whether the repudiatory breach “played a part in the dismissal” and was “an” effective cause of resignation, rather than being “the” effective cause. It need not be the predominant, principal, major or main cause for the resignation.

[164]I accept the Respondent’s submission that there is an implied term in every employment contract that an employer ‘will not, without reasonable and proper cause, conduct his business in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee’ Malik v Bank of Credit and Commerce International SA (in compulsory liquidation)

[1997] ICR 606

, HL.

[165]With regard to trust and confidence cases, Dyson LJ summarised the position thus in Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

CA: Case Number: 2215789/2023 54 of 72 The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Limited v Sharp

[1978] 1 QB 761

. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example Malik v Bank of Credit and Commerce International SA

[1998] AC 20

, 34H – 35D (Lord Nicholls) and 45C – 46E (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”. 3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, see, for example, per Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd

[1981] ICR 666

CA, at 672A; the very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at page 35C, the conduct relied on as constituting the breach must: “impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer”.

[166]This has been reaffirmed in Buckland v Bournemouth University Higher Education Corporation

[2010] IRLR 445

CA, in which the applicable test was explained as:(i) in determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Malik test should be applied;

(ii) If, applying Sharp principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed;

(iii) It is open to the employer to show that such dismissal was for a potentially fair reason;

(iv) If he does so, it will then be for the employment tribunal to decide whether the dismissal for that reason, both substantively and procedurally (see Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

CA) fell within the range of reasonable responses and was fair.”

[167]The same authorities also repeat that unreasonable conduct alone is not enough to amount to a constructive dismissal (Claridge v Daler Rowney

[2008] IRLR 672

); and that if an employee is relying on a series of acts, then the tribunal must be satisfied that the series of acts taken together cumulatively amount to a breach of the implied term (Lewis v Motorworld Garages Ltd

[1985] IRLR 465

). In addition, if relying on a series of acts the claimant must point to the final act which Case Number: 2215789/2023 55 of 72 must be shown to have contributed or added something to the earlier series of acts which is said, taken as a whole, to have broken the contract of employment (Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

CA).

[168]The judgment of Dyson LJ in Omilaju has been endorsed by Underhill LJ in Kaur v Leeds Teaching Hospital NHS Trust. Having reviewed the case law on the “last straw” doctrine, the Court concluded that an employee who is the victim of a continuing cumulative breach of contract is entitled to rely on the totality of the employer’s acts notwithstanding a prior affirmation by the employee.

[169]In addition, it is clear from Leeds Dental Team v Rose

[2014] IRLR 8

EAT that whether or not behaviour is said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties is to be objectively assessed, and does not turn on the subjective view of the employee. In addition, it is also clear from Hilton v Shiner Ltd - Builders Merchants

[2001] IRLR 727

EAT that even where there is conduct which objectively could be said to be calculated or likely to destroy or seriously damage the trust and confidence between the parties, if there is reasonable and proper cause for the same then there is no fundamental breach of contract.

[170]As re-emphasised by the EAT in the decision of Upton-Hansen Architects (“UHA”) v Gyftaki

UKEAT/0278/18/RN

, it is for the employer to advance in pleadings, assert in evidence, and prove a potentially fair reason for the dismissal, and a failure to do so may preclude them from a defence to a claim of constructive dismissal. Unfair Dismissal

[171]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct or (98 (1) (b)) some other substantial reason of a kind such as to justify the dismissal or an employee holding the position which the employee held.

[172]Under s98 (4) ‘… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.’

[173]As such tribunals must decide whether it was reasonable for the respondent to dismiss the claimant for the potentially fair reason in all the circumstances of the case. I have reminded myself that the question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for me to substitute my own decision for that of the Respondent, unless there is only one possible outcome from the application of the relevant legal principles to the case (London Ambulance Service v Small Court of Appeal [2009]).

[174]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies to all the Case Number: 2215789/2023 56 of 72 procedural and substantive aspects of the decision to dismiss a person from their employment. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

, CA)

[175]I accept that when considering the question of the employer’s reasonableness, I must take into account the disciplinary process as a whole, including the appeal stage (Taylor v OCS Group Limited

[2006] EWCA Civ 702

). The Tribunal must focus on what information and circumstances were present and in the mind of the dismissal and appeal managers at the time they made their decisions (West Midlands Coop v Tipton [1986]).

[176]In reaching my decision, I must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question. A failure by any person to follow a provision of the Code does not however in itself render him liable to any proceedings. Dismissal at the behest of a third party

[177]I accept the Respondent’s submission that Henderson v Connect South Tyneside Ltd

2010 IRLR 466

, EAT is an authority relevant to this claim and in particular the position as set out by the Honourable Mr Justice Underhill (President) in that case: 11. The present case is an instance of what is characterised in the books as “dismissal at the behest of a third party”. In a typical case of this kind a client of the employer, for whom the employee is working, takes against the employee for some reason - good or bad - and tells the employer that he is not willing to have the employee work at his premises, or on his business, any longer: he will not generally insist on dismissal as such, but in many cases the employer may have no other work that the employee can do, so that dismissal is (subject to the points discussed below) an inevitable consequence of the client’s stance. The client, not being the employer, is under no statutory obligation to follow any procedure to allow the employee to put his case and will not generally do so. The employer may; but that will be of limited value since he is not the real decision- maker. The employee thus suffers a clear “procedural” injustice. If the client’s decision is unreasonable, the injustice will also be substantive. […] 13. Cases of this kind are not very comfortable for an employment tribunal. Nevertheless, it has long been recognised that the fact that the client who procures, directly or indirectly, the dismissal of an employee may have acted unfairly, and that the employee has thus suffered an injustice, does not mean that the dismissal is unfair within the meaning of the statute. That is because the focus of s. 98 of the Employment Rights Act 1996, and its statutory predecessors, is squarely on the question Case Number: 2215789/2023 57 of 72 whether it was reasonable for the employer to dismiss. S. 98 is (so far as relevant) in the following terms: […] It must follow from the language of s. 98 (4) that if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client – most obviously, by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair: the outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer. That may seem a harsh conclusion; but it would of course be equally harsh for the employer to have to bear the consequences of the client’s behaviour, and Parliament has not chosen to create any kind of mechanism for imposing vicarious liability or third party responsibility for unfair dismissal.

[178]I further accept the Respondent’s submission that an employer does not need proof of allegations made by third parties. However, an employer must do everything that it reasonably can to avoid or mitigate the injustice brought about by the stance of that third party: Henderson and also Jafri v Lincoln College [2014] ICR Whistleblowing Detriment S.47B ERA Public Interest Disclosures

[179]Whistleblowers are protected from suffering any detriment or dismissal from their employer as a consequence of making a public interest disclosure of alleged wrongdoing. The ERA defines a public interest disclosure in the following way: Section 43B of the ERA states: Disclosures qualifying for protection(1) In this Part a “qualifying disclosure” means any disclosure of information which in the reasonable belief of the worker making the disclosure, is made in the public interest and, tends to show one or more of the following: […] (d) that the health and safety of any individual had been, was being or was likely to be endangered, […] 43C provides: Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith: (a) to his employer, or (b)where the worker reasonably believes that the relevant failure relates solely or mainly to— Case Number: 2215789/2023 58 of 72 (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer. 47B provides: Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done —(a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority,on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a) from doing that thing, or (b) from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b) it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).] (2) … this section does not apply where— (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within Case Number: 2215789/2023 59 of 72 the meaning of [Part X]).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, “worker's contract”, “employment” and “employer” have the extended meaning given by section 43K.

[180]In Babula v Waltham Forest College [2007] 346 the Court of Appeal held that: ‘An Employment Tribunal hearing a claim for automatic unfair dismissal has to make three key findings. The first is whether or not the employee believes that the information he is disclosing meets the criteria set out in one or more of the subsections in ERA 1996, section 43B(1)(a)-(f). The second is to decide objectively whether or not that belief is reasonable. The third is to decide whether or not the disclosure is made in good faith’.The ‘reasonable belief’ statutory test is a subjective one. The ERA states that there must be a reasonable belief of the worker making the disclosure (Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, EAT). In Korashi the Court of Appeal stated ‘as to any of the alleged failures, the burden of proof is upon the Claimant to establish upon the balance of probabilities, any of the following,(a) there was in fact, and as a matter of law, a legal obligation or other relevant obligation on the employer in each of the circumstances relied on;

(b) the information disclosed tends to show that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject.’ The Court continued, ‘Belief seems to us to be entirely centred upon a subjective consideration of what was in the mind of the discloser. That again seems to be a fairly low threshold.’

[181]Qualifying disclosures must involve a disclosure of information, i.e. they must convey facts, rather than merely raise an allegation. There must be the disclosure of information. In Williams v Michelle Brown AM [2019]

UKEAT/0044/19

the EAT stated: ‘If the Tribunal properly concludes that the factual content of the claim disclosure cannot reasonably be construed as tending to show a criminal offence [or other relevant breach of section 43B(1)] then that conclusion will by itself be fatal to the proposition that there was a qualifying disclosure relying on section 43B(1). That will be so regardless of what the Claimant subjectively believed, and regardless of whether or the other elements are shown'.

[182]The distinction between information and comment or assertion was illustrated by Slade LJ in Cavendish Munro Professional Risks Management v Geduld

[2010] IRLR 38

as follows: ‘the ordinary meaning of giving “information” is conveying facts. In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital. Communicating “information” would be “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.” Contrasted with that would be a statement that “You are not complying with Health and Case Number: 2215789/2023 60 of 72 Safety requirements”. In our view this would be an allegation not information.’

[183]The question is whether there is sufficient by way of information to satisfy Section 43B. This will be very much a matter of fact for the Tribunal. The more the statement consists of unsupported allegation, the less likely it will be to qualify, but this is as a question of fact, not because of a rigid information/allegation divide (Kilraine v London Borough of Wandsworth

[2018] ICR 1850

). For a statement to be a qualifying disclosure, there must be sufficient factual content and specificity to show that one of the listed matters in Section 43B(1) is engaged. In Kilraine Sales LJ at paragraph 36 said: “36 (…) As explained by Underhill LJ in Chesterton Global Ltd v Nurmohamed….[at paragraph 8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”

[184]It is then necessary to determine that the worker has a reasonable belief that the disclosure is in the public interest and tends to show one of the six statutory categories of 'failure'. The definition of a qualifying disclosure is ‘disclosure of information which, in the reasonable belief of the worker, is made in the public interest’. Disputes that are essentially personal contractual disputes are unlikely to qualify (Millbank Financial Services Ltd v Crawford

[2014] IRLR 18

, EAT). It is not sufficient that the Claimant has simply made allegations about the wrongdoer especially where the claimed whistleblowing occurs within the Claimant's own employment, as part of a dispute with his or her employer (Cavendish).

[185]In Norbrook Laboratories v Shaw

[2014] ICR 40

Slade J said: ‘… an earlier communication can be read together with a later one as embedded in it, rendering the later communication of protected disclosure, even if taken on their own, they would not fall within section 43B(1). Accordingly, two communications can, taken together, amount to a protected disclosure. Whether they do is a question of fact’.

[186]An employee wanting to rely on the whistleblowing protection before a tribunal bears the burden of proof on establishing the relevant failure (Blackbay Ventures Ltd v Gahir

[2014] IRLR 416

, EAT). As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following:(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on; and

(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

[187]In the event that a qualifying protected disclosure was not made in good faith, at the remedy stage 'the tribunal may, if it considers it just and equitable in all the Case Number: 2215789/2023 61 of 72 circumstances to do so, reduce any award it makes to the worker by no more than 25%'. Detriments

[188]It is for the Claimant to show that he was subjected to a detriment by an act or a deliberate failure to act by his employer or co-worker. The claim would only be made out if the Claimant was subjected to the detriment on the ground that he had made the protected disclosure. The relevant test is whether the protected disclosure materially influenced, in the sense of being more than a trivial influence, the treatment of the Claimant (Fecit & Others v NHS Manchester

[2011] IRLR 111

[189]Section 48(2) of the Act states that the onus is on the employer to show the ground on which the act or deliberate failure to act is done. The ‘on the ground that’ test focuses on the relevant decision-makers mental processes. The test is not satisfied merely because there was some relationship between the protected disclosure and the detriment complained of, or because the detriment would not have been imposed but for the disclosure (London Borough of Harrow v Knight

[2003] IRLR 140

[190]The Court of Appeal decision in Jesudason v Alder Hay Childrens NHS Foundation Trust

[2020] IRLR 374

stated ‘It is now well established that the concept of a detriment is very broad, and must be judged from the view point of the worker. There was a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment’. ANALYSIS AND CONCLUSIONS

[191]Whilst I have structured my analysis and conclusions by issue, I was also careful to look at the evidence ‘in the round’ to determine whether it suggested that the Claimant had been subjected to the unlawful treatment of which she complains. Having done so I did not find cause to change my decisions on any issue or issues. Protected disclosures

[192]For the reasons explained in my findings of fact, the Claimant did not make the second alleged protected disclosure on 6 October 2022 because she did not disclose on that occasion information that tended to show that the health and safety of any individual had been, was being or was likely to be endangered. She focused on explaining the reasons for the mistake that JC had asked her about, rather than the potential consequences of her mistake (which on the Claimant’s evidence would have made her mistake more serious)

[193]However, the Claimant did make the alleged qualifying Disclosure 1 on 5 October 2022. She said to AG (a member of OC’s facilities management team) that she was making small mistakes due to exhaustion and explained the issue with dishes and cutlery and the risk of cross-contamination for people with allergies or illness from dirty items. This was a disclose information. I also conclude that the Claimant did have a reasonable belief that the disclosure of information was made in the public interest. She had a reasonable belief that it was in the public interest for OC to know about a risk she perceived to the health of allergy sufferers using their canteen. The Claimant did believe that the Case Number: 2215789/2023 62 of 72 information she disclosed (about her being exhausted and making small mistakes and the risk that might pose to allergy sufferers) tended to show that the health and safety of allergy sufferers had been and was being endangered by her exhaustion induced mistakes and because of inadequate staffing levels. Her belief was also reasonable.

[194]Her qualifying disclosure was also a protected disclosure under Section 43C(1)(b) (ii) ERA in that it was made to OC/AG as an employee of OC. This is because the Claimant reasonably believed that the relevant failure (i.e. with respect to the health and safety of allergy sufferers being endangered) related mainly to AG/OC’s legal responsibility because it was OC’s canteen and OC’s staff that were using the canteen. I reach that conclusion taking into account that it was problems with the Respondent’s staffing of the contract that lead to the Claimant’s exhaustion and work not being completed as it should have been. I do not accept the Respondent’s submission at 7(c).

[195]However, as I have explained in my findings of fact, I conclude that the Claimant did not suffer a detriment on the grounds that she made a protected disclosure because OC did not tell the Respondent that she had made the protected disclosure or the information contained in it. The Respondent could not therefore have treated her less favourably on those grounds. I would reach the same conclusion if I am wrong as regards alleged Disclosure 2. The Claimant’s complaint pursuant to Section 47B ERA is therefore not well founded.

[196]Given these findings I do not go on to further analyse the detriments that the Claimant alleged that she suffered or the question of time limits. Resignation or dismissal and date of termination

[197]The Claimant conceded that she resigned at the meeting on 19 May 2023. Had she not conceded that she resigned I would have concluded, based on the contemporaneous documentation, that she had not:197.1 The invitation to the meeting made clear that a potential outcome of the meeting, if no acceptable solution could be reached, was that the Claimant’s employment may be terminated. This can only sensibly be interpreted as the Respondent indicating that the Respondent might dismiss the Claimant.

197.2 At the meeting the Claimant indicated, via her daughter, that trust had been broken, that she would not be willing to look at other roles and that the environment had become toxic for her. It was incumbent on the Respondent to then seek to understand and resolve those issues if possible. It was not open to the Respondent to treat this as the Claimant’s resignation.

197.3 Indeed, at the meeting on 19 May 2023 Ms Jupp said: “The letter advised that should we be unable to find suitable alternative working arrangements then this will result in HB’s contract being concluded as of today. HB will be paid notice period, which will be confirmed in writing, and also any holiday Case Number: 2215789/2023 63 of 72 that has been accrued since the beginning of 2023.”. This can only sensibly be read as the Respondent indicating its intention to terminate the Claimant’s contract of employment (rather than treat the Claimant as having resigned). The Claimant’s reply to that statement suggests that she thought that it was the Respondent who was bringing the contract to an end. At the end of the meeting Ms Jupp suggested that the Claimant would be offered a right of appeal (which points to termination by the Respondent rather than resignation by the Claimant).

197.4 Ms Banks letter of 30 May 2023 [HB412] then sought, improperly, to treat the Claimant as having resigned. Ms Banks herself does not, on the wording of her own letter, appear to have been particularly confident in positioning it as a resignation. She said the Claimant had “effectively, tendered [her] resignation”, not actually resigned. Ms Banks did at least

(i) acknowledge that the Claimant might have resigned in the heat of the moment

(ii) give the Claimant the opportunity to reflect on that decision

(iii) give the Claimant the opportunity to have the matters that the Claimant had raised at the 19 May 2023 meeting considered as a grievance and

(iv) offer the Claimant pay in lieu of her 4 week notice period if the Claimant confirmed that she had resigned on 19 May 2023. Ms Banks then gave the Claimant an extension to the deadline to confirm her position.

[198]However, as I say, the Claimant conceded in these proceedings that she had resigned on 19 May 2023. That being the case, the next question is, how should the Claimant’s emails of 8 June 2023 have been interpreted?

[199]The Claimant could certainly have been more clear but cannot be blamed for the fact that the Respondent had (wrongly in my view) sought to treat the Claimant as having resigned. That being said, I consider that the Respondent should have interpreted her emails as confirming that either(i) the Claimant had not resigned on 19 May 2023 or

(ii) had changed her mind and taken the Respondent up on the opportunity to retract her resignation and rejected the offer of pay in lieu of her four week notice period. The Claimant in her email said she was rejecting “what was offered in the outcome letter” and made clear that what happened with the Claimant’s employment was in the Respondent’s court (“you can make your decision”). She also seemed to see her employment as subsisting because she made further requests in respect of the contractual terms between the Respondent and Client S. As such the Claimant’s employment did not end on either 19 May 2023 or 8 June 2023. If the Respondent had been unsure about the position then it was incumbent on the Respondent to seek clarity.

[200]The Respondent delayed substantially (by over a month) in responding to the Claimant’s request for information about the commercial relationship between the Respondent and Client S (not replying until 12 July 2023). Had there been any doubt with the Respondent, on 14 July 2023, in reply the Claimant made it very plain that she had not resigned. The same day the Respondent offered the Claimant a meeting and appeared tacitly to accept that the Claimant had not resigned. However, on 20 July 2023 the Respondent’s correspondence finally Case Number: 2215789/2023 64 of 72 appeared to acknowledge the true position as regards what had happened at the 19 May 2023 meeting i.e:200.1 that the Claimant might be dismissed (rather than treated as having resigned);

200.2 that the Claimant might have rejected the alternative schools role in the heat of the moment;

200.3 that the Claimant had then confirmed that it was not her intention to resign from her post;

200.4 that the Claimant was still not prepared to accept the Respondent’s offer of the schools role (albeit the Respondent should have acknowledged that no written information had been provided to the Claimant about that role and that she had outstanding complaints which needed to be addressed before the Claimant could make a decision).

[201]However, it was not open to the Respondent to, as it sought to do in that correspondence, treat the Claimant as having been dismissed (it used the passive term “terminated”) on 19 May 2023. The Respondent had not dismissed the Claimant on that date, the Claimant had not resigned on that date and even if, as she conceded (erroneously in my view), she had resigned, she retracted that resignation on 8 June 2023. The Respondent offered the Claimant the right of appeal and pay in lieu of 4 weeks’ notice and any unused holidays accrued up to the termination date of its (wrongly) asserted termination date of 19 May 2023. Accordingly the Respondent terminated the Claimant’s employment with immediate effect on 20 July 2023. Conclusions on the fairness of the dismissal

[202]I conclude that the Respondent had a potentially fair reason for dismissing the Claimant under Section 98(1) ERA, namely ‘some other substantial reason’ the substantial reason being:202.1 Client S’ refused to allow the Claimant to return; and

202.2 the Claimant’s refusal to accept alternative work at the school as proposed by the Respondent.

[203]However, I do not consider that the Respondent acted reasonably in all the circumstances of the case in treating that as a sufficient reason to dismiss the Claimant considering the following findings and taking into account the application of the ‘band of reasonable responses’:203.1 It is clear that there was a degree of antipathy between Manager D and the Claimant (including because of the consequences of the staffing issues that had arisen at OC);

203.2 It was Manager D that suspended the Claimant and who instructed Ms Banks to issue the suspension letter (which included the allegation of “falsifying company records (fraud)”). Case Number: 2215789/2023 65 of 72

203.3 Manager D knew that she herself (Manager D) was completing the timesheet that Manager D submitted to Client S. Manager D knew that she was completing the timesheet without asking the Claimant for her daily arrival and departure times and knew that there was no book at Client S into which the Claimant could have documented those times.

203.4 Had Manager D given proper thought to what was being alleged then the allegation of fraud should never have been levelled at the Claimant because Manager D knew that the Claimant was not falsifying company records – the Claimant was not completing company records.

203.5 It should have been plain to the Respondent that the allegation of fraud significantly and justifiably (for the Claimant’s part) contributed to the anger that the Claimant displayed and to the deterioration of the relationship between the Claimant and the Respondent. The fact that the Respondent uses the term ‘fraud’ routinely in this type of situation and did not intend to use it in a criminal sense does not absolve the Respondent of responsibility for the serious connotations the word has or how it might reasonably be interpreted by an employee (and was by the Claimant).

203.6 The Respondent should also have realised

(i) that the Claimant’s command of English was a barrier to her understanding and communication and

(ii) the impact of this, coupled with the fact that the Claimant did not have the support of her daughter at the investigation meeting, on the Claimant and the offence that she had been caused in circumstances where the Claimant (particularly in Autumn of 2022) had been doing so much to help the Respondent with its staffing issues on the Client S contract.

203.7 The Respondent should have realised that the Respondent’s actions had thereby improperly contributed to souring of relations with the Claimant and the Respondent should then have done more to bridge the gap with the Claimant (which also led to the Claimant not accepting the alternative schools role) before concluding that it was appropriate to dismiss the Claimant.

203.8 Had the Respondent done what is should have to (i) investigate and think about the disciplinary allegations it made against the Claimant before making the formal allegations and (ii) take adequate steps (only at the appeal stage did it propose to engage an interpreter) to reduce the language communication barrier, then I consider that the cogency of the Mitigating Circumstances would have been apparent to the Respondent and the souring of the relationship between the Claimant and the Respondent could have been avoided.

[204]Taking into account the application of the ‘band of reasonable responses’ and for the avoidance of doubt the Respondent should have:204.1 after the disciplinary conclusion had been reached, taken a more conciliatory tone and tried to understand from the Claimant what if Case Number: 2215789/2023 66 of 72 anything could be done to repair trust (particularly when it came to the 19 May 2023 meeting);

204.2 done more to bridge the language and understanding barrier with the Claimant (for the appeal it arranged an interpreter) and done more to help the Claimant understand Client S’s attitude to the Claimant and the practical difficulties and commercial sensitivities associated with Client S’ refusal to allow the Claimant back and not led the Claimant to believe that the there might be scope to get Client S to accept her back. As I have noted above, the letter prior to the 19 May 2023 meeting suggests that there remained hope that Client S would take the Claimant back (“MAR Management have attempted to further explain the details of your case in the hope that the decision will be revoked”);

204.3 provided the Claimant with written information, in advance of the meeting on 19 May 2023, about the alternative role at the school (that the Respondent only mentioned verbally to the Claimant at the meeting);

204.4 treated the issues raised by the Claimant (in particular at the 19 May 2023 meeting) as a grievance. The Respondent did not do this because it unreasonably said the Claimant had resigned and then did not react appropriately to her emails of 8 June 2023 (which should have been taken by the Respondent as a retraction of her resignation or confirmation that she had not in fact resigned)).

[205]The dismissal of the Claimant was also procedurally unfair because:205.1 The Respondent treated the Claimant as having resigned on 19 May 2023 and then did not act properly on her correspondence of 8 June 2023;

205.2 The Respondent unreasonably delayed in its interpretation of and response to the Claimant’s correspondence of 8 June 2023;

205.3 On 14 July 2023 the Respondent offered the Claimant a meeting but then unreasonably retracted that offer and dismissed the Claimant without a further hearing.

205.4 On 20 July 2023 sought to treat the Claimant’s employment as having been terminated on 19 May 2023.

205.5 Delayed unreasonably in arranging an appeal hearing. Polkey and contributory fault

[206]I did not hear evidence on remedy save that I asked the parties to deal at the hearing with:206.1 Polkey – Was there was a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason and should her financial remedies be reduced to reflect that? Case Number: 2215789/2023 67 of 72

206.2 Contributory Fault - Did the Claimant contribute by her own conduct to the circumstances that led to her dismissal and should and should her financial remedies be reduced to reflect that?

[207]However, I consider it appropriate to give the parties a further opportunity to make representations on both Polkey and Contributory Fault at a future remedy hearing as well as on the relevance and impact on remedy of questions such as:207.1 the probability of a different outcome having been reached had the Respondent not erred as it did;

207.2 the period during which the Claimant remained in employment without pay between 19 May 2023 and 20 July 2023.

[208]I nonetheless find that the Claimant bears some responsibility for what happened:208.1 She should not have shouted at the investigation meeting, notwithstanding her understandable upset.

208.2 She focused somewhat unreasonably on the Respondent’s reliance on CCTV images in circumstances where she accepted that she was not doing the contractual hours required at Client S.

208.3 The Respondent was responsible for creating a lax working environment as reflected in the Mitigating Circumstances. The Respondent therefore bears some responsibility for what happened on the Client S contract with the Claimant. However, it was also incumbent on the Claimant to be more open about the fact that she was not completing her contractual hours at Client S in the week and how/whether she was making that time up at the weekend.

[209]I do not consider that the Claimant acted unreasonably in not attending an appeal hearing given the delays on the part of the Respondent and the failures by the Respondent to bridge the gap that had arisen between the Claimant and the Respondent. Holiday pay

[210]As the Claimant’s employment terminated on 20 July 2023 she is entitled to payment in lieu of holiday that accrued but was untaken up to that date. It is not possible for me to calculate this and it will need to be determined at a remedy hearing (if the parties are unable to resolve this between themselves).