Mrs A Matthew v Signature Senior Lifestyles Operations Ltd: 2300851/2019
JUDGMENT
[1]The claimant was not directly discriminated against, harassed or victimised on the ground of race or age[2]The claimant was not subjected to detriments for bringing to the respondent’s attention circumstances that she believed were harmful to health or safety[3]The claimant was not dismissed so her claim of unfair dismissal fails[4]The respondent did not make unauthorised deductions from the wages of the claimant in respect of holiday pay[5]The respondent breached the contract of the claimant by failing to reimburse her for solicitors’ fees and she is awarded compensation of £360.[1]The claimant was not directly discriminated against, harassed or victimised on the ground of race or age[2]The claimant was not subjected to detriments for bringing to the respondent’s attention circumstances that she believed were harmful to health or safety[3]The claimant was not dismissed so her claim of unfair dismissal fails[4]The respondent did not make unauthorised deductions from the wages of the claimant in respect of holiday pay[5]The respondent breached the contract of the claimant by failing to reimburse her for solicitors’ fees and she is awarded compensation of £360.REASONS
[1]I should like to begin by apologising for the very late production of these reasons. Although my recording was forwarded to be typed on 23 March, for some reason I did not receive the draft until 9 June. The delay in their production is most regrettable and, as I say, I offer my full apologies.[2]In this case the claimant Mrs Matthews made a number of claims against her former employers, Signature Senior Lifestyles Operations Limited (“the Company”). Specifically, she said she had been unfairly dismissed by the Company and unlawfully discriminated against on the grounds of race and age. She also said that she had suffered detriments as a consequence of making a health and safety disclosure, and that certain sums of money were owed to her by the Company. All the claims were resisted by the Company.[3]We heard evidence from Mrs Matthew herself and on behalf of the Company from:- Ms Swanston who administered her with a warning; Ms Mitchell, who overturned that warning; Ms Jeacock who dealt with an incident on 26 September 2018; and Ms Roose who dealt with a further incident on 13 November 2018.[4]In addition to their evidence, our attention was directed to a number of documents and we reached the following findings of fact.[5]Mrs Matthews was employed by the Company as a care assistant. She worked at their care home in Wimbledon from October 2016.[6]The events that concerned us commenced in April 2018. On 21 April Mrs Matthew submitted a document to the Company which described itself as a harassment complaint against her colleague, Mr Orie. She alleged that he had insisted that she should work alone on a particular floor of the care home, but that if she was working elsewhere two of her colleagues would be employed to cover the floor. Essentially, she was complaining about the manning levels within the Wimbledon establishment and in particular that she had been treated less favourably than her colleagues. She was being asked to do the work of two people. Mrs Matthew describes herself as Filipina. Mr Orie was black as indeed were her two colleagues in question. Mrs Matthew was in her late 40s and the colleagues were in their 20s.[7]There was no report back to her as to exactly how that complaint had been resolved.[8]On 26 September she submitted a further harassment complaint against Mr Orie, again alleging that the way he had allocated work, and specifically where she should work, was unsatisfactory. She also alleged that he had sworn, albeit not at her.[9]On that very day there was an incident concerning Mrs Matthew at the home. It was found that she had absented herself from her place of work. Disciplinary action was taken against her that resulted in a disciplinary hearing on 11 October and on that day Ms Swanston administered her with a first and final warning.[10]Mrs Matthews appealed against that warning and that appeal came before Ms Mitchell on 7 November. She upheld the appeal and overturned the warning.[11]In the meantime, on 1 October Mrs Matthews was sent an email indicating that her second complaint had been dealt with but again, without her being informed as to what exactly had happened about it.[12]In a letter dated 9 November Ms Mitchell notified Mrs Matthew of the outcome of her appeal against the warning, and also told her that her grievance (ie the complaint of 26 September) would be dealt with and that she would be contacted within seven days. She was not.[13]On 13 November Mrs Matthew rang Ms Roose to tell her that she (Mrs Matthew) had been sent home by a senior carer, Ms Affoh, who was black, having disagreed with an instruction from Ms Affoh. Ms Roose confirmed to Mrs Matthew that she should indeed go home, and she would be paid for her shift.[14]On 14 November Mrs Matthew was contacted by Mr Knott, an HR employee of the Company, suggesting that she might leave the Company on terms to be agreed between the parties and agreeing with her that 50% of her legal fees in negotiating and concluding an agreement to that effect would be met by the Company.[15]On 16 November Mr Knott wrote to Mrs Matthew to advise her that she should not return to work while the events of 13 November were investigated.[16]On 29 November Mrs Matthew tendered her resignation, alleging that the Company had fundamentally breached her contract.[17]Under s13 of the Equality Act 2010, a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic (such as race or age), A treats B less favourably than A treats or would treat others.[18]Under s26 of the 2010 Act a person(a) (A) harasses another(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.[19]Under s27 of the 2010 Act a person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because B does a protected act, which includes making an allegation (whether or not express) that A or another person has contravened the Act.[20]S123 of the 2010 Act provides that a complaint of discrimination may not be brought after the end of the period of 3 months starting with the date of the act complained of (together with, where appropriate, any period of early conciliation) or such other period as the tribunal thinks just and equitable.[21]S136 of the 2010 Act provides that if there are facts from which the tribunal could decide, in the absence of any other explanation, that a respondent has committed an unlawful act of discrimination, it must so find unless the respondent shows that it did not.[22]S44 of the Employment Rights Act 1996 provides that an employee has the right not to be subjected to any detriment done on the ground that, working at a place where there was no safety representative or safety committee, she brought to her employer’s attention by reasonable means circumstances which she reasonably believed were harmful or potentially harmful to health or safety.[23]Under s95 of the 1996 Act an employee is dismissed if she terminates the contract under which she is employed in circumstances in which she is entitled to terminate it without notice by reason of the employer’s conduct (“constructive” dismissal). It is well established that that conduct must amount to a fundamental breach of contract.[24]Mrs Matthews said firstly that she had been underpaid holiday pay. However, before us she accepted that that was a miscalculation on her part. Her calculation proceeded on the basis that she had accrued holiday for a complete year. However, the holiday year commenced in April. Based on accrual from that date it was evident that she had not been underpaid. Indeed, she might have been overpaid.[25]She made a separate claim for breach of contract in relation to solicitor’s fees. We were satisfied that there was a contract in place to the effect that 50% of her legal fees would be met in connection with a prospective settlement agreement. It was not a term of that agreement that the payment would only be made if the agreement was concluded. She incurred fees of £720 and therefore was entitled to an award of compensation of £360.[26]It was suggested on behalf of the Company that if there was an overpayment in relation to holiday pay, it should be set off against that award of compensation. We did not agree. If the Company had wanted to pursue such a set off it could and should have made an employer’s claim - a counter-claim. Having failed to do so there was no basis to reduce the award of compensation for breach of contract.[27]Mrs Matthew made a further claim of breach of contract, which was essentially of wrongful dismissal. It proceeded on this basis. Mrs Matthew said that the Company had committed a fundamental breach of contract by its treatment of her. It was a reasonably foreseeable consequence that she would resign, as she did. Her loss as a result of the breach was therefore her wages going forward. However, damages must be assessed on the basis of performance by the Company most favourable to it. In this case, that performance would have been the giving of notice, such that her damages would be limited to her wages for her notice period.[28]That was a claim that was related to matters that touched upon her claim of constructive unfair dismissal and it is therefore addressed below.[29]Mrs Matthew made a number of claims of discrimination. She said her treatment by Mr Orie the subject of her complaints of 21 April and 26 September 2018 amounted to direct discrimination because of race or age, and also harassment related to race or age. She said that being sent home by Ms Affoh on 13 November was direct discrimination on the ground of race as was the direction of Mr Knott on 16 November for her not to return to work.[30]Mrs Matthew further claimed she had been victimised. She said that her complaint of 26 September was a protected act as a result of which the Company had subjected her to a number of detriments, namely telling her that day that a disciplinary process was being begun against her; administering her with a warning; and sending her home on 13 November.[31]Our analysis begins with the events of 21 April and 26 September. The protagonists on both occasions were Mrs Matthew and Mr Orie. We did not hear evidence from Mr Orie, who was the only person who could contradict the evidence of Mrs Matthew. He was no longer an employee of the Company.[32]There was no obvious reason for us not to believe what Mrs Matthew said about the events of those days. We accepted that she was treated differently from other employees who had different ethnic origins from her and were of a different age group.[33]In order for her to establish a claim of direct discrimination, she had to show that that treatment was because of a protected characteristic. To succeed in establishing harassment, she had to show that the treatment was related to a protected characteristic.[34]It was notable that she made no reference to discrimination, or indeed age or race in the harassment complaints. She told us that at the time she did not realise that the behaviour might be related to race and age, and that state of affairs only changed on a date after she had resigned, when she received documents from the Company. That seemed a rather strange state of affairs. One can imagine a document being produced subsequently - a “smoking gun” for want of a better expression - that demonstrated unlawful treatment where none had been suspected before. This was not such a case. There was no document that might reasonably have alerted her to a claim where she did not suspect it before.[35]A difference in, say, race and a difference in treatment is not enough to shift the burden to the Company to disprove unlawful discrimination. We reminded ourselves that Mrs Matthew herself did not, at the time, suspect a discriminatory act had occurred. While we accepted that this was mistreatment of Mrs Matthew (and therefore might contribute to a fundamental breach of contract in the context of her unfair dismissal claim) we did not accept that Mrs Matthew had proved facts from which we could decide, in the absence of any other explanation, that the Company had acted unlawfully. She had been treated differently from her comparators, who were of a different race and age group but we did not believe that treatment was because she was of a different race or age group. It followed that her claims of direct discrimination failed. Similarly, we did not believe her treatment was related to age or race, so her claims of harassment also failed.[36]We then turned to the events of 13 November. It was alleged that Ms Affoh sending Mrs Matthew home on that date was an act of direct discrimination on the ground of race, as was the direction of Mr Knott on 16 November that she should remain away from work while the events were investigate.[37]Again, we did not hear direct evidence from the other protagonist to the incident, Ms Affoh. However, we did have a statement from her produced at the time. We also heard evidence from Ms Roose, who dealt with the matter directly on that day. In our view it was Mrs Matthew who was being difficult on that day. It was wholly unsurprising that she should be sent home. There was no reason for us to believe that that direction was in any way related to her race. Similarly, and in the light of that conclusion, it was perfectly understandable that Mr Knott should take the view that she should stay away from work (and Ms Affoh should be permitted to remain) while the matter was investigated. We did not believe that that direction was given because of her race. It followed that her claims of discrimination relating to that matter failed.[38]We then turned to victimisation. If the complaint of 26 September was to be a protected act for the purposes of the victimisation claim, it would have to at least implicitly alert the Company to the fact that some allegation was being made that was related to the Equality Act. It did not. It was a complaint about the actions of Mr Orie and there was no reason for the Company to understand that it was a complaint of discrimination or even related to a protected characteristic. It was not a protected act for the purposes of the victimisation claim which therefore had to fail. For the sake of completeness, we would not in any event have been inclined to conclude that she was subjected to the detriments she alleged by reason of that document.[39]We should add that the bulk of Mrs Matthew’s claims were “out of time”. She commenced early conciliation on 5 January 2019 so that on the face of it the tribunal would not be able to address any event pre-dating 6 October 2018. The explanation she gave for her failure to present claims earlier was that she did not realise at the relevant times (and particularly at the dates of her complaints of April and September) that race or age might be relevant. She said that only occurred to her upon the disclosure to her of certain documents by the Company. We were referred to those documents and there was simply no reason why they would have so alerted her. It followed that there was no explanation for late presentation and we would therefore not have been inclined (had it been necessary for us to determine the question) to conclude that it was just and equitable that they should go forward.[40]The next issue we addressed was Mrs Matthew’s claim that she had been subjected to detriments on “health and safety” grounds. We understood there was not a safety representative or committee at the care home and therefore if by reasonable means Mrs Matthews was bringing the attention of the Company to matters potentially harmful to the health and safety, she would be entitled to protection.[41]We were satisfied that that was what Mrs Matthew was doing by means of her email of 21 April relating to the manning levels in the home. The residents were vulnerable people and if there was inadequate cover, as she alleged, there were clearly potential risks for them.[42]We then had to consider whether there was a causal connection between that act and the detriments alleged by her.[43]The first alleged detriment was that on 26 September disciplinary action was notified against her. That was a wholly unsurprising act and clearly had nothing to do with her allegations but purely to do with the fact that she had, as she admitted herself, absented herself from her place of work without permission.[44]Secondly, she was issued with a disciplinary warning. Again, that had nothing to do with her complaint but was clearly the result of a genuine belief by Ms Swanston that she had behaved in a wholly unacceptable way. That was an unsurprising conclusion for her to have reached. Although the warning was reversed on appeal, that was on somewhat technical grounds and did not lead us to doubt the genuineness of Ms Swanston’s beliefs and actions.[45]Finally, she was sent home on 13 November. Again, that had nothing to do with the complaint but was a consequence of the way she conducted herself and the view taken by the Company as to how the matter should be addressed. We were therefore satisfied that none of the subsequent treatment was related to the complaint such that the claim that she suffered “health and safety” detriment failed.[46]Finally we turned to unfair dismissal. Mrs Matthews resigned her employment with the Company. She can say that that resignation is to be construed as a dismissal if it was as a consequence of a fundamental breach of contract on the part of the Company. She asserted that there had been a fundamental breach of the implied term within her contract that the parties will not treat eachother in a way such as to destroy or seriously damage, without good cause, the relationship of trust and confidence between them. She said that breach had been caused by the actions of the Company from April 2018 onwards.[47]There were clearly respects in which she could justifiably claim she had been mistreated by the Company. Mr Orie had behaved inappropriately towards her. Her two written complaints were not dealt with properly at all. The first one was simply disposed of without her being informed as to what had happened or what view the Company took in respect of it. The second one was pre-emptively disposed of by the 1 October, was resurrected but was then simply not taken forward. It was all very well for the Company to say events had overtaken it in light of the conversation on 14 November relating to possible settlement but that was really an unsatisfactory argument. The Mrs Matthew had been told in terms on 9 November that she would be contacted within seven days in respect of this issue and she was not.[48]Those were the respects in which she could consider herself mistreated by the Company. She could not consider herself to have been mistreated in the further ways that she alleged and in particular by the disciplinary process taken against her which was unsurprising and fully merited.[49]There was, though, a fundamental problem that arose in connection with her unfair dismissal claim. She identified at the case management hearing in this matter that the “final straw” that resulted in her resignation was the conversation on 14 November. The purpose of the conversation was to discuss the possible compromise of a claim against the company - to conclude a settlement agreement with her upon which she would depart, at a time when there was a dispute between the parties. We were prohibited from taking into evidence the matters that were raised in the course of that conversation.[50]Put shortly, there was no final straw. In those circumstances we could not conclude that there had been a fundamental breach of contract by the Company. Mrs Matthew’s resignation could not be construed as a dismissal and it followed that her claim of unfair dismissal failed.[51]Insofar as that might be seen as taking a rather legalistic attitude, we were bound to say that even disregarding that point and looking in the round at the ways in which Mrs Matthew could say that she had been mistreated, it did not seem to us that they could amount to a fundamental breach of contract.[52]We then turn back to the “wrongful” dismissal claim – the claim for notice pay. This would only be justified if Mrs Matthew’s resignation was a consequence of a breach of contract on the part of the Company. For reasons that will be apparent, we concluded that that it was not. It was not reasonably foreseeable that she would resign as a consequence of the actions of the Company. Her loss of wages going forward from the date of her resignation was not caused by a breach of contract by the Company and it followed that her claim for notice pay failed.