A Hardisty-Hill v Smart Grid Forums Ltd: 2217657/2023
JUDGMENT
WITH FULL WRITTEN REASONS The Judgment of the Tribunal is:[1]The Claimant’s claim for wrongful dismissal / breach of contract succeeds and is upheld.[2]Damages for 3 months’ notice is assessed in the agreed sum of £9,445.89 to be paid by the Respondent to the Claimant. Introduction.[3]By a Claim Form dated 18th December 2023 (following a notification of a dispute to ACAS on 7th November and an Early Conciliation certificate on 4th December 2023) the Claimant presented a claim of wrongful dismissal (breach of contract) for the non-payment of her notice pay upon the termination of her employment relationship with the Respondent.[4]The Respondent denies the claim on the grounds that the Claimant was guilty of gross misconduct and was not entitled to her notice pay or pay in lieu on termination. The Evidence[5]It was not clear until very late in the process that the Respondent was going to engage in or defend the Claimant’s claim. Accordingly, the case had not been well prepared by the parties. No single bundle of documents had been provided. Instead, various separate documents were provided by both sides on the day of the hearing which were considered by the Tribunal. Neither party had prepared witness statements, however the following witnesses did give evidence under oath and both were subject to cross examination: 5.1. The Claimant, Ms Alexandra Hardisty Hill; 5.2. Ms Mandana White, Chief Executive Officer for the Respondent. Findings of Fact[6]The Tribunal has not recited every fact in this case, or sought to resolve every dispute between the parties. It has limited its analysis to the facts that were relevant to the Issues that it was tasked to resolve. It made the following findings of fact on the basis of the material before it, taking into account contemporaneous documents, where they exist and the conduct of those concerned at the time. The Tribunal resolved such conflicts of evidence as arose on the balance of probabilities, taking into account its assessment of the credibility of the witnesses and the consistency of their evidence with the surrounding facts. The essential chronology is as follows:[7]The claimant commenced employment with the Respondent on 15th February 2023 in the role of Project Delivery Driver. The Claimant worked with a colleague, Molly Chapman. Tea Mastelic worked for the Respondent in Human Resources. Mandana White was the Respondent’s CEO.[8]Both parties agreed that the Claimant’s contract entitled her to three months’ notice unless she is dismissed for gross misconduct. The relevant provisions stated: [2.1] Your employment begins on 13th February 2023 (‘the start date’). No period of service with a previous employer counts towards your period of continuous employment with the company. [16.4] We will be entitled to dismiss you at any time without notice if you commit a serious breach of your obligations as an employee or if you cease to be entitled to work in the United Kingdom.[9]On the 23rd October 2023, the Claimant engaged in the teams chat with Molly Chapman [MC] in which the following conversation took place: ‘[MC] She’s struggling with Tea. We spoke about her the whole conference. [AHH] hahaha I bet tbh she’s so annoying. [MC] She is. She keeps undermining Allty’s authority. [AHH] I hope they just give me PILON and let me go. I want to leave asap like Bronte did tbh, like just let me go. [MC] Yeah I know what you mean. I’ll see you next week anyway. … [AHH] Why are they taking so long Imao. [MC] Tea takes 5 hrs to say one sentence is why.[10]On 7th November 2023 the Claimant had another Teams chat with Ms Chapman which she said HR communications were fluffy and hard to handle. This is acknowledged in a team chat between Ms White and the Claimant on the 7th November 2023, as follows: [AHH] Hi Mandana. I've apologised to Tea for my unacceptable comments. I've messaged Molly will try to speak to her after work today, obviously she started a new job this week, so I don't expect to response to later / after work hours. Let me know when you want to speak. I'll take responsibility for my unacceptable actions and whilst reassurance that it won't happen again probably isn't enough for you to 100% trust me immediately, I would like the chance to prove it as we want to invest myself into this company and work to its success. [MW] Hi Ali, I'm glad you've spoken to Tea and we'll catch up with Molly. What you put out will always come back to you tenfold. By this stage in your career, you should be demonstrating better ethics. You've lost everyone's trust, not just mine. I'll speak with you tomorrow. [MW] Hi Ali Tea is going to speak to the team soon and let them go. I suggest you go home for the day and calm down. Will speak with you tomorrow.[11]On 7th November 2023 the Respondent’s CEO, Mandana White, wished to arrange a meeting with the Claimant to discuss these matters, She considered a ‘course correction’ was necessary. There is no indication that the Claimant was considered guilty of gross misconduct at that time. Ms White accepted as much in her oral evidence.[12]Later on 7th November 2023 the Claimant then gave notice to the Respondent of her resignation, indicating that she was happy to work her notice. The email stated: I would like to inform you that I will be submitting my resignation with a three month notice. Please let me know when it is suitable to discuss. This is not without regret, I am 100% committed to you and the organisation, however a lack of trust won't do well for a long term working relationship. I'm committed to working with three months’ notice to support the success of SGTech 2024 for my remaining time here. Thanks, Ally.’[13]The Claimant asserts that within 30 minutes she had a conversation with Tea Mastelic, HR, who told her she was being dismissed for gross misconduct or would not get any notice pay and should return all her belongings. In response to this conversation with Tea Mastelic, the Claimant considered she had been dismissed immediately after she had given her notice. She changed her profile on LinkedIn to state she was no longer employed by the Respondent. The new LinkedIn profile stated ‘Project Delivery Director. Sept 2023 – Nov 2023 – 3 Mos’. There were further email communications between Claimant and Ms White later on that day, on 7th November: ‘Hi Ally, thank you for your resignation note below, this is accepted. I note that you have changed your LinkedIn profile to state your departure from Smart Grid forums to be November 20231 (see attached). I take this to mean that you no longer wish to work your notice. Please confirm so that we may proceed accordingly.’[14]Ms Mandana had taken offence at the Claimant changing her LinkedIn profile to indicate that she was no longer working for the Respondent. That said, there was nothing in Ms Mandana’s response to indicate that she considered the Claimant guilty of any act of gross misconduct by changing her profile. Ms Mandana and the Claimant continued to email in the following terms: I've been advised that I was dismissed due to gross misconduct, therefore not required to work my notice and told to leave without my access card and laptop, etc. I've taken a legal advice around this decision and plan to follow up, unless you wish to resolve this between us, I am open to do so. Many thanks, Ali’.[15]Ms White considered this response by the Claimant to be a dishonest response, as she did not accept that Tea Mastelic had told the Claimant of her dismissal. Ms Mandana now considered that the Claimant had changed her LinkedIn profile and, in order to justify doing so, had lied about being told by Ms Mastelic that she had been dismissed. Accordingly Ms White sought to rely on this as a ‘lie’ and as an act of dishonesty. The exchange continued: ‘Hi Ally, Given the nature of the behaviour, we can't have you work your notice. You've admitted behaviour that is considered gross misconduct according to HR law. Therefore we can't put the business at risk by having you represent us any longer. Many thanks, Mandana.’ 1 The email stated ‘November 2024’ in error. ‘Hi Ally, See attached your team message to me this morning admitting wrongful behaviour and Molly’s messages to Becca on teams indicating your undermining of our HR function to the junior team. If you wish to sue the legal rate rather than accept the repercussions of your wrong wrongful behaviour, I will need to bring other matters into the discussion and this could end up messy for you.’ I completely accepted that my comment around the HR communication style was unacceptable to a junior team member, however, this does not constitute gross misconduct under HR law. This is a singular comment as I discussed with you, and it's a shame Molly saw it as more. You have yet to supply any evidence that shows my own gross misconduct and I’m deeply saddened that you have chosen to end our working relationship this way. Many thanks, Ally’[16]On the balance of probabilities I find as a fact that Tea Mastelic (whom the Respondent did not call to give evidence) did tell the Claimant on 7th November 2023 that she was being summarily dismissed. I accept the Claimant’s oral evidence on this point. As a result it was appropriate for the Claimant to change her LinkedIn profile. The Claimant did not lie about Ms Mastelic’s oral confirmation of dismissal when she explained to Ms Mandana why she had changed her profile. All of what Ms Mastelic told her orally on 7th November, was confirmed in a letter that Ms Mastelic sent to the Clamant the next day, 8th November, stating: ‘Your contractual notice was three months, and as agreed, since you handed your notice in yesterday, and since we considered your behaviours gross misconduct, your last date of employment was yesterday on 7th November 2023. This means you are not entitled to be paid your notice and you will receive your pay up to the end of the day yesterday. Your final pay slip and P45 will be sent to your personal email address on the 30th of November 2023’.[17]Accordingly the Claimant’s employment terminated on 7th November 2023 without any payment of notice being made to the Claimant. On 27th November 2023 the Claimant commenced new employment. In box 8.2 of her Claim Form the Claimant expressed her case in the following way: ‘I resigned from my position by email, following a conversation with my employer where I decided I no longer wanted to work within the organisation. Within this resignation, I confirmed I am happy to work my three month notice. 30 minutes later I was called into a meeting with HR where I was advised I would be dismissed for gross misconduct with no notice. I was immediately asked to leave the office, leaving behind equipment. I have yet to be informed what constituted his gross misconduct and was not offered any formal meeting to discuss this. Therefore, I believe this to be a breach of contract to avoid paying my three months’ notice which was originally happy to work before being let go.’[18]Mandana White completed the Respondent’s Grounds of Resistance. She defended the Claimant’s claim in the following way: ‘On resignation the claimant was required to provide three months’ notice, which would involve taking direction, carrying out duties to a satisfactory standard and following the company's rules, policies and procedures. However, when the claimant resigned …. she instantly changed her LinkedIn status to having left the company and proceeded to claim that she had been unfairly dismissed and then refused to work her notice. The Claimant made it impossible for the company to fully investigate her conduct and ascertain the severity of her misconduct. Therefore appropriate notice work could not be identified. Her reluctance to follow management direction and comply with company rules, policies and procedures by participating in the disciplinary meeting was considered insubordination and her demand for PILON went against the terms of her contract’.[19]Both parties agreed and accepted that the Claimant was entitled to three months’ notice of the termination of her employment, unless she had been guilty of an act of gross misconduct. The Claimant was paid £52,000.00 gross a year. This equates to a net monthly payment of £3,148.63 or a total of £9,445.89 over three months. These figures were agreed by both sides. The Tribunal’s Conclusions[20]I have to determine if the Claimant is guilty of gross misconduct. If so, the Respondent can rely on the contractual clause 16.4 which states that no notice is payable in the event of a gross misconduct dismissal. If the Claimant is not guilty of gross misconduct, then the Respondent must pay notice in full.[21]The Respondent relies on 4 incidences of gross misconduct. They are as follows: 21.1. Telling Molly Chapman that the HR coms are fluffy and hard to follow; 21.2. The Teams chat with Molly Chapman on 23rd October 2023. 21.3. The Claimant’s change in LinkedIn profile on 7th November 2023; 21.4. The Claimant lying to the Respondent in explanation for changing her LinkedIn profile, by saying she had been told by Ms Mastelic she had been dismissed on the 7th of November.[22]Grounds 1 and 2 above were not considered by Miss White as acts of gross misconduct at the time. She considered them to be conduct only and at the most requiring a course correction or warning. She had no intention of dismissing the claimant at that point.[23]Grounds 3 and 4 rest on determining whether Ms Mastelic told the Claimant on the 7th November that she had been dismissed with no notice. For the reasons already given, I find as a fact that Ms Mastelic did tell the Claimant exactly that.[24]In considering the severity of the sanction, it is important that the tribunal does not ask whether a lesser sanction would have been reasonable, but asks instead whether the sanction of summary dismissal was reasonable (Securicor Ltd v Smith [1989] IRLR 356, CA).[25]Thus the Claimant changing her LinkedIn profile to reflect what she understood to be the case (that she had been dismissed) and then telling Ms Mandana that she had done so because she had been told she was dismissed, was perfectly appropriate, not dishonest in the slightest and was not, and could never be, an act of gross misconduct.[26]In the circumstances the Respondent’s defence to this claim, and its reliance on clause 16.4 of the contract, that the Claimant had committed an act of gross misconduct, is misconceived and is rejected. The Claimant is entitled to her three months’ notice pay and I award the Claimant judgment assessed in the agreed sum of £9,445.89