Miss S Rahman v St Georges University Hospitals NHS Foundation Trust: 2301307/2016
EMPLOYMENT TRIBUNALS
Case No 2301307/2016Venue London SouthHearing 5th and 6th January 2017 Representation Claimant: Mr K Sonaike, counsel Respondent: Mr C Edwards, counsel
Between
Mr K Sonaike, counselClaimantMr C Edwards, counselRespondent
Before
Employment Judge J PritchardDate 3 February 2017
JUDGMENT
[1]The Claimant’s application to amend her claim is refused.[2]The Claimant’s claim for unfair dismissal is well founded and accordingly succeeds.[3]The Respondent breached the Claimant’s contract of employment by failing to give notice or by making a payment in lieu.[4]The Claimant’s claim for holiday pay is dismissed upon withdrawal.
REASONS
[5]By way of an ET1 Claim Form presented on 12th July 2016, the Claimant claimed constructive unfair dismissal, breach of contract (notice monies), and ticked the box claiming holiday pay. The Respondent resisted the claims.[6]The Tribunal heard evidence from the Claimant on her own behalf and from the Respondent’s witnesses: Mr John-Jo Campbell (Head of Information Technology at all relevant times) and Mr Andrew Thomas (Acting Deputy Head of Information) hereinafter referred to as Andy Thomas. The Tribunal was provided with a bundle of documents to which the parties variously referred. The Tribunal was also provided with a number of additional documents on the first day of the hearing: Change Management Policy; Grievance Procedure; Stress Management Policy; Dignity at Work Policy; and an organisation chart which had been prepared by the Claimant after the termination of her employment but in advance of the grievance hearing which took place after her employment had ended. Mr Edwards also helpfully provided the Tribunal with his skeleton argument, short chronology and cast list. During the course of the hearing, further documents were introduced with the agreement of the parties: an organisation chart which had been prepared by John-Jo Campbell illustrating proposals for a re-structured department; and copies of contracts of employment made between the Claimant and the Respondent at various times.[7]There was insufficient time for the Tribunal to deliberate and deliver judgment within the allocated hearing time. Judgment was therefore reserved. In advance of the Tribunal’s deliberation counsel for the parities provided comprehensive written submissions. Within his submissions, counsel for the Claimant made applications to amend the Claimant’s claim as more fully described below.
The issues
[8]The issues were discussed with the parties at the commencement of the hearing and agreed as follows: Constructive unfair dismissal 8.1. Whether on the balance of probabilities, the Claimant is able to show:(i) that there was a fundamental breach of contract on the part of the Respondent or a course of conduct on the Respondent’s part, objectively viewed, that cumulatively amounted to a fundamental breach entitling her to resign, whether or not one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach. If the Claimant is relying on a course of conduct then she will have to show that the final act added something to the breach even if relatively insignificant;(ii) that the breach caused her, at least in part, to resign;(iii) that she did not delay too long before resigning, thus affirming the contract and losing her right to claim constructive dismissal. 8.2. The Respondent conceded that if the Claimant established that she had been constructively dismissed, then the dismissal would be unfair. 8.3. If the Tribunal were to conclude that the Claimant had been constructively and unfairly dismissed, what remedy is she entitled to? The parties were told that in the event of a finding in favour of the Claimant, a further hearing would take place to consider the question of remedy. However, any evidence relevant to Polkey or contribution should be adduced at this hearing. Breach of contract 8.4. Did the Respondent breach the Claimant’s contract of employment by failing to pay notice pay. If so, what is her entitlement to damages? Holiday pay 8.5. The Claimant did not wish to pursue her holiday pay claim and it was agreed that this claim should be dismissed upon withdrawal.[9]The Claimant’s case was that the Respondent had breached the implied term of trust and confidence.[10]As for the conduct relied upon, in addition to the conduct of Andy Thomas, the Claimant wished to rely upon alleged breaches of a number of policies and procedures: the Sickness Absence Policy and Procedure; Guidance Notes on Temporary Assignment to a Higher Band (described by the Claimant as the Acting Up Procedure); the Change Management Policy; the Stress Management Policy; and the Dignity at Work Policy.[11]The Tribunal expressed concern that this appeared to be an expansion of the Claimant’s pleaded case and with which the Respondent might therefore be unprepared to deal. The Tribunal drew the parties’ attention to the dicta of Mr Justice Langstaff in Chandhok v Tirkey UKEAT/0190/14, in particular paragraph 18.[12]On behalf of the Respondent, Mr Edwards said that he had not understood the Claimant to be complaining of policy breaches other than those alluded to in paragraph 6 of her Statement of Claim. In particular, he did not understand that the Claimant would be seeking to rely upon breaches of policies other than the Sickness Absence Management Policy (referred to by the Claimant as the Return to Work Policy) although he accepted that the Guidance Notes on Temporary Assignment to a Higher Band were relevant to the issues in the case. Mr Sonaike’s reply that the polices were intertwined.[13]The Tribunal determined that it would admit the documents and hear any evidence about alleged policy breaches which the parties wished to put forward but that both parties were at liberty to address issues relating to sufficiency of pleading in submissions, by reference to Chandhok if they thought fit.[14]At the commencement of the second day of the hearing Mr Sonaike informed the Tribunal that having now received copies of the contracts of employment which had just been disclosed by the Respondent, the Claimant would in addition seek to show an express breach of contract on the basis that the Respondent’s policies were expressly incorporated in the contract of employment. The Respondent’s position was that this had not been pleaded and in any event the policies did not have contractual force.[15]Mr Sonaike did not make an application to amend the Claimant’s claim at any stage during the course of the hearing. The scope of the pleaded claim[16]The conduct complained of by the Claimant is set out at paragraphs 6, 7, and 8 of her Statement of Claim. It can be distilled and described as follows: 16.1. The manner in which the Respondent applied the Return to Work Policy and its failure to adhere to it; 16.2. The Respondent delaying the Claimant’s return to work despite the fact that Occupational Health deemed her fit to return on a phased basis; 16.3. The Respondent changing the Claimant’s role which excluded her from the Information Team and routine team meetings which diminished her responsibilities and affected her seniority; 16.4. The Respondent requiring the Claimant to move offices; 16.5. The Respondent unfairly denying the Claimant an opportunity to apply for the position of Interim Deputy Head of Information; 16.6. The Respondent informing the Claimant that her grievance would take a number of weeks to be dealt with but other senior colleagues told her it would inevitably take months (the Tribunal accepts that it would be appropriate to have regard to the Respondent’s grievance policy in this regard); and 16.7. The conduct of Andy Thomas including his behaviour in respect of some or all of the matters set out above.[17]The Tribunal concludes that the Respondent could not possibly have known that the Claimant would be seeking to complain of matters other than those described above and which she only sought to introduce at the commencement of the first day of the hearing and, indeed, during the course of the hearing itself. The Tribunal does not accept the Claimant’s submission that the further policies and procedures upon which she seeks to rely are implicitly referenced in her ET1 (save for the grievance procedure which is relevant by reason of the complaint set out at paragraph 16.6 above). The Tribunal notes that the Claimant was legally represented both at the time her claim was presented and at the hearing itself. If the Claimant wished to rely on further matters and policy breaches, she had every opportunity to do so by requesting copies of the policies from the Respondent (and an application to the Tribunal for disclosure in the absence of voluntary disclosure) and making the appropriate application to amend her claim.
Applicable law
[18]In the Tribunal’s view, in the absence of a successful application to amend the claim (the Claimant’s application included in counsel’s submissions is considered below), it would be unjust for the Claimant to be permitted to advance matters relating to the Respondent’s conduct without the Respondent having full opportunity to consider them and provide a considered response. The Claimant’s application to amend the claim[19]Although not clearly detailed with proposed amending text, it appears that the Claimant now seeks to amend her claim in the following ways: 19.1. To rely on breaches of the further policies referred to; and 19.2. To rely on breach of express terms of contract by reason of breaches of the policies.[20]In deciding whether to exercise its discretion to grant leave to amend, a Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. In Selkent Bus Co v Moore 1996 ICR 836, the Employment Appeal Tribunal stated that relevant circumstances include: 20.1. The nature of the amendment, i.e. whether the amendment sought is a minor matter such as the correction of clerical and typing errors, the addition of factual details to existing allegations or the addition or substitution of other labels for facts already pleaded or, on the other hand, whether it is a substantial alteration making entirely new factual allegations which changed the basis of the existing claim. 20.2. The applicability of statutory time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions. Where the amendment is simply changing the basis of, or re-labelling the existing claim, it does not matter whether the amendment was brought within the time limit. See for example: London Borough of Hammersmith and Fulham v Jesuthasan 1998 ICR 640 CA. 20.3. The timing and manner of the application. Although the Tribunal rules do not lay down any time limit for the making of amendments, and an application should not be refused solely because there has been a delay in making it, it is relevant to consider why the application was not made earlier. An application for amendment made close to a hearing date usually calls for an explanation as to why it is being made then and not earlier, particularly where the new facts alleged must have been within the knowledge of the Claimant at the time the claim was presented.[21]The main question is not whether the Claimant’s conduct is reprehensible but whether justice overall to both parties, balancing the hardship to each, requires that the amendment be granted.[22]Whilst the Tribunal accepts that time limits are not relevant to its consideration of the application, it is clear that the Claimant seeks to make significant additions to the basis of her existing claim. The Tribunal has been provided with no explanation as to why the application is being made at such a late stage; to the extent that the Claimant might be suggesting that the Respondent failed to disclose relevant documents until the first day of the hearing, or during the hearing itself, the Tribunal heard no evidence or submissions in that regard. In any event, it was open to the Claimant to make an application to amend at the commencement of the hearing or at any time during the hearing. The application is now being made at the latest possible stage. In the Tribunal’s judgment, the balance of injustice and hardship falls in the Respondent’s favour. The application is refused.[23]Accordingly, the Tribunal will consider those complaints described in paragraph 16 above only. Relevant findings of fact[24]The Claimant commenced employment with the Respondent on 17 February 1997. From the outset, her duties were mainly concerned with Service Level Agreement Monitoring (SLAM). SLAM is a process which not only allows the Respondent to report its internal NHS activity income for budgetary purposes but also facilitates the billing of NHS activity to commissioners. The annual budget was or is in the region of £650 million.[25]During her employment, the Respondent had placed the Claimant in a number of temporary acting-up positions whereby she undertook the duties of an absent post-holder at a higher grade to that which she held. The Respondent clearly considered the Claimant to be an able individual.[26]By 2010, through various promotions, the Claimant had advanced to Band 8A Principal Information Analyst (which she describes as Information Deputy Team Leader). The Claimant’s job description (confusingly having the job title Deputy Team Leader (Technical)) included responsibility for the supervision of the dayto-day work of Analysts (by 2014/2015 it appears that the Claimant had one staff member reporting directly to her). The organisational chart at Appendix 1 to the job description shows that the Claimant’s position was subordinate only to the Information Development Manager and the Head of Information. It is clear that the Claimant was a senior member of the Information Team.[27]Although the Claimant’s job description makes no reference to SLAM, that was her primary focus and she had developed a particular expertise in relation to its processes. Indeed, SLAM and other finance related matters comprised 100% of her duties. The Claimant was part of the Trust National Tariff Technical Group and a member of the review panel at the monthly budget/performance review meetings. She was frequently consulted by the clinical services for support and implementation of any clinical procedures. For the bi-monthly SLAM process, the Claimant was responsible for the coordination, collation and processing.[28]In 2012, Andy Thomas commenced employment with the Respondent as a Band 7 Community Data Warehouse Manager. At some time in 2013/2014, Andy Thomas was promoted to Band 8A Technical Sub-team Manager. In this role Andy Thomas had responsibility for migration of a number of the SLAM processes and the Claimant found it difficult to work with him. Her perception was that Andy Thomas was trying to encroach on her areas of responsibility relating to SLAM and in about May 2015 the Claimant raised a grievance about him. In evidence, Andy Thomas suggested that the reason for the difficult relationship was that they were competitive peers.[29]In about May/June 2015, the Head of Information, Tom Dewar, sought to take away one aspect of the Claimant’s duties relating to SLAM, that relating to its redevelopment. Upon the Claimant objecting to the reduction in her role and making it clear that she was considering resigning because of it, the Claimant’s SLAM redevelopment duties were not taken from her. The Claimant was told that the Respondent’s recruitment process had been initiated to fill vacant posts within her team. This would provide her with additional support. Accordingly, the Claimant did not resign.[30]An informal complaint was made about the Claimant by a number of employees including the employee reporting to the Claimant.[31]As far as the Tribunal is able to ascertain and insofar as relevant the organisation of the team, before the Claimant’s sick leave referred to below, can be described as follows: Tom Dewar was Grade 8C Head of Information and the Claimant reported directly to him. There were two Grade 8B Deputy Head of Information positions, one held by Rob Simpson, the other a vacant post. There were then a number of Grade 8A positions, one of which was held by the Claimant with two staff positions (one vacant) reporting directly to her. One of the other Grade 8A positions was held by Andy Thomas.[32]In June 2015 the Claimant suffered an injury on holiday when she was struck on the head by the boot of a car. Although she initially returned to work, she continued to suffer from persistent headaches and her health deteriorated. The Claimant became anxious and concerned that she might have suffered a serious injury. The Claimant commenced long-term sick leave on 21 July 2015, being initially signed off by her GP with sinusitis and then with headache.[33]Scans and x-rays showed that the Claimant had not suffered a serious injury. The opinion of the Claimant’s GP was that the Claimant was suffering from prolonged and sustained levels of stress; work was identified as a key factor. The Claimant started on anti-anxiety medication on 1 September 2015.[34]During the Claimant’s absence, Tom Dewar handed in his resignation and would be leaving at the end of October 2015.[35]The Respondent’s Guidance Notes on Temporary Assignment to a Higher Band (Acting Up) provide, amongst other things: 3 Guidelines for Acting up The following steps outline the process for acting up employees to a higher pay band. Identify the Potential Group Consideration needs to be given to the group of staff that could act up. Initially this will mean highlighting immediate deputy/ies who are most likely to be suitably qualified for acting up. Pinpointing the immediate deputy may mean identifying one employee, but at lower pay bands it will highlight a group of staff. In identifying the potential group, the staff will need to be both in the same field of work and be close in terms of the level of post, ideally the next level down. Identify who is interested Whilst the manager will make the final decision as to who acts up, staff will need to be encouraged to express an interest, or otherwise, in acting up. This is best facilitated initially through normal staff team meetings or in a manner that brings the opportunity to the attention of all appropriate staff including staff on annual or sick leave. If more than 1 person expresses an interest in acting up then it may be appropriate to hold informal interviews.[36]In August 2015, Andy Thomas was appointed to act up as Deputy Head of Information to work alongside Rob Simpson, both of whom would report to JohnJo Campbell until a replacement was found for Tom Dewar. John-Jo Campbell, who was responsible for appointing Andy Thomas to the acting-up position, did not follow the guidelines for acting-up contained in the Guidance Notes on Temporary Assignment to a Higher Band (Acting Up).[37]Andy Thomas undertook a great majority of the Claimant’s SLAM duties during her sickness absence with others in the team assisting. He also undertook line management responsibilities for the employee who had hitherto reported to the Claimant.[38]Because Tom Dewar had a good working relationship with the Claimant, it was agreed that he would retain line management of the Claimant (who was on sick leave) until he left the Respondent’s employment.[39]The Claimant was keen to return to work and she met with Tom Dewar on 19 October 2015. At that meeting, Tom Dewar informed the Claimant that he had handed in his resignation and that Andy Thomas had been appointed to the acting-up role of Deputy Head of Information to work alongside Rob Simpson. Since Tom Dewar’s management responsibilities had been transferred to Andy Thomas, the Claimant would be reporting to Andy Thomas in future.[40]Amongst other things, the Respondent’s Sickness Absence Management Policy and Procedure provides as follows: Long term sickness: Long term sickness is defined as any period of sickness longer than four weeks 17.4 Procedure for Long Term Sickness Any employee returning to work after four weeks or more sickness absence as a result of an accident at work or where illness may have occupational implications must be referred to Occupational Health. In cases where the reason for absence is known and does not have occupational relevance the manager will seek advice from the Occupational Health department as to whether or not a referral would be appropriate. The Consultant Occupational Health Physician will decide whether the employee should have a health interview with the Occupational Health Nurse Advisor or needs to see a doctor. It is important that contact is maintained during any period of long term sickness, and meetings may be arranged at any point throughout the period of absence but normally after four weeks and at a minimum before the employee commences half pay and before the employee commences no pay. When an employee is absent from work on a long term basis and the date for a return to work is not known, the employee will be referred to Occupational Health as early as possible to determine the prognosis in connection with the absence. A copy of the referral will be sent to the employee. The manager should contact the employee to arrange a long term sickness review meeting to ascertain when a return to work date can be expected. The employee will be given 7 calendar days’ notice of the date of the meeting and advised of his/her right to be accompanied. The purpose of the meeting will be to establish the employee’s current health situation, a possible date for return to work and any assistance that might reasonably be provided. The outcome of this discussion will determine the next stage in the process as the options may range from an early return to work to early retirement. In the event that the employee is too ill to attend such a meeting, the manager may consider visiting the home of the employee if the employee agrees to this. Alternatively, if it is agreed the employee is too ill to attend a meeting the employee may provide a written statement to their manager which will be considered at the meeting.[41]The Claimant’s GP was keen that the Claimant see occupational health before returning to work. On 22 October 2015, the Claimant contacted Rob Simpson to find out if the return to work arrangements had been initiated and whether a referral had been made to occupational health. Because no such arrangements had been initiated the Claimant sought to self-refer to occupational health; however, she was informed that the referral must be made by a manager.[42]Andy Thomas formally took on management responsibility for the Claimant from Monday 2 November 2015 and the Claimant asked Andy Thomas to make an occupational health referral. On 2 November 2015 the Claimant was signed off until 28 November 2015 as not fit for work suffering from depression. On 12 November 2015, Andy Thomas completed an occupational health referral form.[43]By email dated 13 November 2015, Andy Thomas informed the Claimant that he was keen that they should build a working relationship and work constructively together.[44]By email dated 23 November 2015, the Claimant complained to Jo Leslie of the Respondent’s human resources department that, amongst other things, there had been a team restructure in her absence and that Andy Thomas had been given the interim deputy head post despite the position not being advertised or other staff offered the opportunity to apply. She said she could not return to work in an environment that caused her illness and if no assistance was provided she would have no choice but to look for new employment. Jo Leslie replied that she was not aware of any restructuring of the team but that was not to say that team structures had not changed.[45]On 2 December 2015 the Claimant’s GP provided a statement of fitness for work showing that the Claimant continued to suffer from depression but that she was fit for a phased return.[46]The Claimant had an occupational health assessment on Friday 4 December 2015. Dr Small reported that the Claimant was fit to return to work the following week working 50% of her contracted hours split over 3 days for 2 weeks. This would enable the Claimant to have rest days at home which would be important in terms of her long term recovery. Dr Small also requested that a Management Stress Risk Assessment be undertaken as soon as the Claimant returned to work.[47]Andy Thomas informed the Claimant that it would not be practical for her to return to work the following week. Instead, he met with the Claimant on Wednesday 9 December 2015 in a café in the Respondent’s grounds and informed her that he had assumed the Claimant’s responsibilities for SLAM and that he now managed the staff member who had previously reported to the Claimant together with a new member of staff who had been recruited to work in the Claimant’s team. Instead of returning to her previous role dealing with SLAM, the Claimant would instead undertake a data quality role. Further, Andy Thomas informed the Claimant that in future she would be situated in and working from his own office. Given that Andy Thomas had emailed the team the previous day to inform them that the Claimant would be seated in his office and undertaking work he assigned to her, the Tribunal is unable to accept that this was anything other than a fait accompli. As to the overall content of the meeting, the Tribunal accepts that the Claimant’s notes of the meeting which she typed up immediately after the meeting are likely to be a reasonably accurate summary of what was said.[48]A further meeting took place on 11 December 2015 between the Claimant, Andy Thomas and Paulette Greenidge of the Respondent’s human resources department to carry out the Stress Management Risk Assessment. The Claimant was accompanied by a friend, Andy Irvine. The Tribunal accepts that Mr Irvine’s notes, which are set out in a style which suggests a near verbatim record, are likely to be an accurate account of what was said. As the Claimant did not have the necessary documents to hand, the assessment was not completed. At this meeting the Claimant raised a number of complaints: that the return to work policy had not been not followed; that she had to chase to be referred to occupational health; that Andy Thomas had changed her role; that Andy Thomas had changed her line management which she did not accept; and that Andy Thomas was now going to her meetings.[49]With regard to the Claimant returning a different job, Andy Irvine’s notes of the meeting record Ms Greenidge as saying “No change as should be back to existing role. Need consultation for any change”. At an interview as part of the Claimant’s grievance investigation which took place after the end of her employment, Andy Thomas conceded that Ms Greenidge had advised him not to change the Claimant’s role. Following discussion between Andy Thomas and John-Jo Campbell, it was decided that the Claimant’s role would be in data quality as planned.[50]Andy Thomas sent a number of emails to the Claimant setting out her duties and the days he expected her to work.[51]Having taken some annual leave and worked from home, the Claimant returned to the workplace on Friday 18 December 2015. She emailed Paulette LindsayGreenidge of human resources on the same day as follows: Dear Paulette I am forwarding an email I received a few days ago from Andy Thomas, whilst I was on leave and to my personal email address. Following our meeting on 11 December, I am surprised that I am still being asked not only to undertake duties that are out with my usual area but also to relocate to Andy’s office. I am not being allowed to return to my own work role and having to move desk when my own work area is free seems completely unnecessary and controlling. As I mentioned in our Friday meeting, my understanding of a phased return is that I am supported into resuming my existing role in my usual work environment. I don’t feel this to be the case. Today is my first day back in the office after five months sick leave. I have been giving Andy’s email a lot of thought and it is causing me great concern at a time when I am already feeling vulnerable and apprehensive. I feel demoted and undermined. There is no sympathy or understanding of the illness I have suffered in the last few months. … I am planning to see my GP as regrettably I have started to feel unwell again in the last couple of days Could I please request a meeting with you at your earliest convenience.[52]On the same day, John-Jo Campbell commenced a return to work meeting with the Claimant. Mr Campbell talked through a proposed new team structure with the Claimant which was planned to take place in March 2016. The way in which Andy Thomas had been appointed to his acting up position was discussed as was the Claimant’s wish to return to SLAM duties. By email later that day, Andy Thomas informed the Claimant that there would be no change to the data quality duties he had planned for her.[53]By email to the Claimant early the following morning, Saturday 19 December 2015, Andy Thomas wrote about interaction he had had with the Claimant the previous day about a computer, that he felt the Claimant had spoken to him in accusing tone, and that she should show patience while waiting to be assisted by a member of the IT staff. Shortly thereafter Andy Thomas sent an email to Dr Small in advance of a further occupational health appointment the Claimant would be having with Dr Small. Amongst other things, Andy Thomas asked Dr Small whether an assessment of “cognitive dissonance” or “cognitive bias” might be appropriate.[54]Andy Thomas was on annual leave from 19 December 2015 to 4 January 2016.[55]John-Jo Campbell resumed the return to work meeting on Monday 21 December 2015 during which the Claimant complained about Andy Thomas’s email sent to her at the weekend which had caused her distress. Given the difficult relationship between the Claimant and Andy Thomas, and what the Claimant described as Andy Thomas’s intimidation, Mr Campbell suggested that the Claimant report directly to himself instead of Andy Thomas and that she should not move into Andy Thomas’s office. The Claimant again raised her concerns as to the way in which Andy Thomas had been appointed. The Claimant felt that her current work position was not tenable and would consider leaving. She was also considering raising a formal grievance.[56]On 22 December 2015, Dr Small reported to John-Jo Campbell as follows: Dear John-Jo Re: Susie Rahman Susie attended for medical review this morning. I understand that Susie will be reporting to you rather than Andy Thomas who is on leave until 4th January 2016. I believe you have met with Susie on 2 occasions to conduct her return to work interview. I believe that for a number of management reasons, Susie did not actually commence her phased return to work until Friday 18th December 2015. This is perhaps disappointing however hopefully her work plan has been clarified. I believe that Andy informed Susie that here job role was to be altered although she was unaware of this until he arranged an informal meeting on 9th December. The phased return to work outlined in my initial report to Andy was based on Susie returning to her substantive role at her workstation with her colleagues. Susie stated that Andy suggested that she worked either from home or in his office on data quality issues. Susie will complete her 2 weeks of undertaking 50% of her contracted hours over 3 short days before increasing to 75% during week 3. All being well, Susie can then resume full time. This has been an unsettling reintroduction into the workplace and Susie continues to have input from Staff Support Counselling Service. I have arranged to see Susie again on Thursday 14 January 2016 at 12.00.[57]Although John-Jo Campbell considered what Dr Small said about the Claimant returning to her original job, he discounted it and decided to leave the SLAM team in place as they had been since July 2015 during the Claimant’s absence. In evidence he said that he had taken the view that the Claimant should not undertake such duties until she returned full time.[58]Upon Andy Thomas returning to work on 4 January 2016 he emailed the team informing them that the Claimant would continue to focus on data quality issues and that members of the team who had picked up work streams in the Claimant’s absence would continue to do so with no changes to those responsibilities proposed. Andy Thomas was informed of the change to the Claimant’s line management and thereafter he had very limited contact with the Claimant.[59]On 7 January 2016 the Claimant took sick leave. Thereafter she continued to work on a four day a week basis in accordance with the return to work arrangements. She worked from an office on the second floor of the building, not in Andy Thomas’s office as he had originally instructed. On 11 January 2016, as part of his handing over line management of the Claimant to John-Jo Campbell, Andy Thomas emailed John-Jo Campbell to inform him of the arrangements he had put in place for the Claimant.[60]On 14 January 2016, Dr Small reported to John-Jo Campbell that upon review the Claimant felt demoralised and undermined and that she should continue working 4 days a week.[61]The Claimant took annual leave during the last week of January 2016 and the first week of February 2016.[62]By letter dated 2 February 2016, the Claimant raised a formal grievance in which she complained that the Return to Work Policy had not been adhered to, the manner in which the Return to Work Policy had been applied constituted a fundamental breach of contract, that she had been unfairly denied the opportunity to apply for the position of Interim Deputy Head of Information, and improper conduct by Andy Thomas, including that he had taken advantage of her leave to encroach on her areas of responsibility and used the opportunity to further his own career. The Claimant complained that she had been excluded from her usual role in the Information Team, no longer had an office in the department and had been excluded from routine meetings; that Andy Thomas now attended meetings which were previously her responsibility. She stated that the situation was making it very difficult to return to work to resume her existing role. She expressed the hope that her grievance would be investigated expeditiously.[63]The Respondent’s grievance procedure provides, amongst other things: On receipt of a written grievance, the HR Department, on behalf of the manager, will arrange a hearing as soon as possible after agreeing the date with the employee…. The employee will be given reasonable notice of the arrangements for the hearing. As far as is reasonably practicable, the hearing will take place within 21 days calendar days of receipt of the grievance. The outcome of the hearing will be confirmed in writing within 7 calendar days of the hearing…[64]The Claimant did not see the grievance policy until after she resigned.[65]Jo Leslie of the Respondent’s human resources department informed the Claimant that the grievance process might take a number of week to complete due to appointing a case investigator and then giving interviewees notice to attend interviews. The Claimant wished to resign and the Respondent agreed that the Claimant’s grievance would be considered after her employment had ended.[66]The Claimant subsequently met with John-Jo Campbell and it was agreed that the Claimant should be permitted to waive the requirement that she give 3 months notice to end her employment.[67]By letter dated 19 February 2016, the Claimant resigned and requested that 29 February 2016 should be her last working day. She stated that she had no choice but to resign because of recent events.
Applicable law
[68]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is dismissed by his employer if the employee 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.[69]In Western Excavating (ECC) Ltd v Sharp 1978 ICR 221 it was held that in order to claim constructive dismissal an employee must establish: 69.1. that there was a fundamental breach of contract on the part of the employer or a course of conduct on the employer’s part that cumulatively amounted to a fundamental breach entitling the employee to resign, (whether or not one of the events in the course of conduct was serious enough in itself to amount to a repudiatory breach); (note that the final act must add something to the breach even if relatively insignificant: Omilaju v Waltham Forest LBC [2005] IRLR 35 CA). Whether there is breach of contract, having regard to the impact of the employer’s behaviour on the employee (rather than what the employer intended) must be viewed objectively: Nottinghamshire CC v Meikle [2005] ICR 1. 69.2. that the breach caused the employee to resign – or the last in a series of events which was the last straw; (an employee may have multiple reasons which play a part in the decision to resign from their position. The fact they do so will not prevent them from being able to plead constructive unfair dismissal, as long as it can be shown that they at least partially resigned in response to conduct which was a material breach of contract; see Logan v Celyyn House UKEAT/2012/0069. Indeed, once a repudiatory breach is established if the employee leaves and even if he may have done so for a whole host of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon; see: Wright v North Ayrshire Council EATS/0017/13/BI); .and 69.3. that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[70]All contracts of employment contain an implied term that an 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: Malik v BCCI [1997] IRLR 462. A breach of this term will inevitably be a fundamental breach of contract; see Morrow v Safeway Stores plc [2002] IRLR 9.[71]Although there is nothing to prevent an employer trying to make amends to prevent a breach of contract, a fundamental breach cannot be cured; see Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908 CA.[72]In Croft v Consignia plc [2002] IRLR 851, the Employment Appeal Tribunal held that the implied term of trust and confidence is only breached by acts and omissions which seriously damage or destroy the necessary trust and confidence. Both sides are expected to absorb lesser blows. The gravity of a suggested breach of the implied term is very much left to the assessment of the Tribunal as the industrial jury.[73]In submissions, Mr Sonaike drew the Tribunal’s attention to the cases of: 73.1. Land Securities Trillium Limited v Thornley [2005] UKEAT/0603/04 in which the Employment Appeal Tribunal upheld the tribunal’s decision that the claimant had been constructively dismissed when the whole emphasis of her job had changed to that of a management role which were at a remove from the hands-on architectural work which she had previously undertaken; and 73.2. Visa International Service Association v Paul [2003] UKEAT/97/02 in which the Employment Appeal Tribunal upheld the tribunal’s decision that the claimant had been constructively dismissed when the respondent failed to notify her of a job opportunity while she was on maternity leave.[74]The Employment Tribunals Extension of Jurisdiction Order 1994 provides that proceedings for breach of contract may be brought before a Tribunal in respect of a claim for damages or any other sum (other than a claim for personal injuries and other excluded claims) where the claim arises or is outstanding on the termination of the employee’s employment. A claim for notice pay is a claim for breach of contract. Conclusion and further relevant findings of fact[75]The Tribunal is mindful of the ruling in Consignia and, as submitted by the Respondent, to prove dismissal within the meaning of section 95(1)(c) is not easily done. Much of which the Claimant complains falls short of a fundamental breach of contract and are “lesser blows” which she could be expected to absorb. 75.1. The Tribunal is unable to accept that the Respondent’s failure to follow its Return to Work Policy, to the extent that there was a failure, amounted to a fundamental breach of contract. 75.2. Given that the Claimant remained signed off as unfit for work until 2 December 2015, when her GP confirmed that she was fit for a phased return, the Tribunal takes the view that it is difficult to criticise the Respondent for Andy Thomas’s failure to refer the Claimant to occupational health until 12 November 2015 after he took over her line management on 2 November 2015. 75.3. Nor does the Tribunal criticise the Respondent for placing Andy Thomas in the position of Interim Deputy Head of Information during the Claimant’s absence and requiring him and others to carry out SLAM duties. It is clear that the SLAM process was required to be carried out a senior level; business continuity was vital for the Respondent. Although the Acting-Up guidance might be best practice, in the Tribunal’s view deviation from it will give rise to a breach of contract. In particular, given that the document is expressed as guidance, the Claimant could have had no legitimate expectation that it would inevitably be followed. In any event, since the Claimant was off sick at the time and would not be able to carry out the function of Deputy Head of Information in any event, the Tribunal is unable to conclude that the Claimant was denied the opportunity to apply for the position. There was no breach of the implied term. 75.4. It is difficult to understand why the Claimant’s grievance might have taken longer than the time limits set out in the Respondent’s grievance policy (by way of an observation only, the Tribunal notes that the Claimant’s grievance was not concluded until November 2016). However, the wording of the policy itself might be read as requiring a number of weeks to complete and Jo Leslie’s comments cannot, without more, lead to a finding of improper conduct on the Respondent’s part.[76]The change to the Claimant’s role upon her return to work, however, was no such a “lesser blow”. When carrying out her SLAM role, the Claimant was clearly in a senior position. She had responsibility for other/s reporting to her. She attended meetings at a senior level. Her responsibilities related to significant expenditure. She was working within her area of particular expertise. This changed significantly upon her return to work when she was instructed to carry out a data quality role. Although her Band and salary remained the same, the Tribunal accepts the Claimant’s evidence that she was now in a lesser role more suited to a member of the IT Department. Although in cross examination Andy Thomas denied he had said during the investigation into the Claimant’s grievance that he was aware that his instructions were not targeted at her level of band, on balance the Tribunal finds they were indeed not targeted at the Claimant’s level (and concludes that the verbatim style notes of the investigation notes are likely to be accurate). The Claimant no longer had others reporting to her, she no longer attended meetings at such a senior level, and no longer worked with the same people. The instruction to carry out the data quality role was given without any meaningful consultation. Despite the Claimant raising objections to it, the decision was a fait accompli and was maintained despite the advice of the Respondent’s human resources manager and appeared to ignore what Dr Small had to say about the basis of her initial report. The Claimant’s role was diminished and her seniority adversely affected. It is clear that the Claimant was expected to remain in the data quality role until at least March 2016 when the departmental restructure was proposed; as John-Jo Campbell said in evidence, he had no idea if the Claimant would ever return to her previous role.[77]The Tribunal is unable to discern any credible evidence that there was a reasonable and proper cause for the Respondent to place the Claimant in such a lesser role. John-Jo Campbell sought to suggest that the stress of the SLAM role made it necessary for the Claimant to be placed in a less stressful role. The Tribunal is unable to accept that suggestion which flies in the face Dr Small’s advice. Indeed it is clear from the evidence that not allowing the Claimant to return to work in her role itself caused stress on her part. The Tribunal does not accept the Respondent’s submission that the Claimant’s own note of the meeting of 18 November 2015 recognised that she could not undertake SLAM work until she was fully back to work – the note records the Claimant’s suggestion that she pick up on SLAM issues. There was no credible evidence before the Tribunal as to why the Claimant could not be permitted return to SLAM duties with adjustments and phased return suggested by Dr Small and the Claimant’s GP.[78]The Tribunal concludes that the Respondent without reasonable a proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties.[79]The Tribunal fails to understand how, as he suggested, Andy Thomas might have been able to provide better support for the Claimant upon her return to work by having her work in his office as opposed to the Claimant working elsewhere. Given the Claimant’s status, experience and seniority, it would have been demeaning for her have to work in Andy Thomas’s office where new starters would usually sit. The Tribunal can discern no reasonable and proper cause for it. Although this instruction was reversed by John-Jo Campbell, the damage had been done. The Tribunal finds that the instruction itself was sufficient to amount to a breach of the implied term and was not capable of being cured; Buckland.[80]Although the Claimant did not immediately resign, she objected more or less throughout the remaining period of her employment to the Respondent’s conduct. She did not waive the breach and affirm the contract. The Claimant clearly resigned in response to the breach.[81]Having reached its conclusions above, it is not necessary for the Tribunal to consider further issues relevant to the case.[82]The Claimant was constructively and unfairly dismissed.[83]The evidence adduced does not lead a conclusion that deductions should be made from compensation by reason of contributory fault on the Claimant’s part or under the Polkey principle. Indeed, the Respondent did not pursue any arguments in this regard.[84]The Respondent waived its right to demand that the Claimant must give 3 months’ notice upon her resignation. In fact, she was not required to give any notice because she was entitled to terminates her contract without notice) by reason of the Respondent’s conduct. There was no evidence before the Tribunal that the Claimant waived her right that the Respondent must give her notice upon her dismissal. Nor was there any evidence to support an argument that the Respondent was justified in dismissing the Claimant without notice. The Tribunal concludes that the Respondent thereby breached the Claimant’s contract of employment.[85]In accordance with Rule 3 of the Employment Tribunal Rule of Procedure 2013, the parties are encouraged to use the services of ACAS or other mediation as a way of resolving the question of remedy and it is hoped that the parties will apply their minds to settlement without further costs being expended on either side.[86]This case will nevertheless be listed for a remedy hearing with a half day time estimate.[87]For the avoidance of doubt, at any remedy hearing the Claimant can expect to be awarded costs in respect of any Tribunal fees she has paid.
Applicable law
[1]The Respondent is ordered to pay the Claimant a basic award in the sum of £10,687.50.[2]The Tribunal concludes that the Claimant could obtain employment in the NHS within 2 years of the date of this remedy hearing and future losses should be so limited to that period.
Background
[3]The compensatory award shall include £350.00 for loss of statutory rights.[4]The Respondent is ordered to pay to the Claimant damages for breach of contract the sum of £7,412.35.[5]It is just and equitable for the compensatory award and damages for breach of contract to be increased by 10% by reason of the Respondent’s unreasonable failure to comply with the ACAS Code of Practice.[6]The Respondent is ordered to pay the Claimant costs in the sum of £1,200.00 by way of re-imbursement of her Tribunal fees.[7]The hearing was listed to determine remedy. The Claimant confirmed that she was not seeking re-instatement or re-engagement. The Tribunal heard evidence from the Claimant and from Jason Bradley, Head of Information for the Respondent. The Tribunal was provided with a bundle of relevant documents which included the Claimant’s schedule of loss. At the conclusion of the hearing the parties made brief oral submissions. The issues[8]The parties had reached agreement in respect of compensation for the basic award and for loss of statutory rights. The parties had also reached agreement as to the damages to be paid for breach of contract (notice pay). The Respondent agreed that if the Claimant had paid Tribunal fees then she was entitled to costs by way of re-imbursement. Those agreements are recorded in the Judgment above.[9]The Claimant obtained new employment with a broadly equivalent salary on 18 April 2016, shortly after the termination of her employment with the Respondent. However, the Claimant’s new employment does not have the benefit of a final salary pension scheme of the kind provided by the Respondent; rather, she has the benefit of a less generous contributory money purchase scheme. The Claimant therefore claimed ongoing loss. She provided the Tribunal with an actuarial report and claimed loss in the sum of £175,916.00 which appears to reflect loss until retirement at the age of 67 years.[10]The parties asked the Tribunal to determine the following: 10.1. How long would the Claimant’s employment relationship have lasted with the Respondent had she not been constructively dismissed? 10.2. On what date could the Claimant obtain comparable employment in the NHS or other equivalent employment? 10.3. Should the Tribunal award an uplift to the compensatory award by reason of the Respondent’s failure to comply with the ACAS Code of Practice, in particular the Respondent’s unreasonable delay in dealing with the Claimant’s grievance?[11]The parties assured the Tribunal that once it had made its findings in respect of the issues above, the parties would then be in a position calculate the pension loss and would reach agreement as to the compensatory award. Relevant findings of fact[12]The Tribunal repeats paragraphs 24 – 27 of its Reserved Judgment dated 3 February 2017. The Claimant holds a degree in computer science. She is 49 years of age.[13]After the termination of her employment, the Claimant looked for jobs but could find no roles in her area of expertise, namely SLAM. However, she had no need to look further when she was approached by her current private sector employer which offered her employment working in her area of expertise. In other words, she was head-hunted because of her expertise in SLAM. She commenced employment with her current employer on 18 April 2016.[14]Although NHS Trusts will require specialists in SLAM, vacancies are relatively rare. Jason Bradley said it did not surprise him that such vacancies are rare given the niche nature of the role. The Claimant told the Tribunal that the last time she was aware of a requirement for a SLAM specialist was in 2013 at Kings. She also referred to a vacant SLAM role at St Helier but could not remember when it was.[15]If the Claimant were to apply for a vacant position within the NHS, whether within SLAM or otherwise, it is likely that there would be other applicants and it cannot be said with any certainty that she would be successful.[16]Nevertheless, although the Claimant’s specialist knowledge relates to SLAM, and not in other clinical areas such as mental health or cancer, the Claimant possesses significant skills, in particular analytical skills and management skills. She also has significant experience working in the NHS.[17]The Tribunal repeats paragraphs 62 and 75.4 of its Reserved Judgment dated 3 February 2017 which illustrate the length of time taken by the Respondent to deal with the Claimant’s grievance.
Applicable law
[18]Section 118 of the Employment Rights Act 1996 provides that where a Tribunal makes an award for unfair dismissal the award shall consist of a basic award and a compensatory award.[19]Section 123 provides that the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the Claimant in consequence of the dismissal in so far as that loss is attributable to the action taken by the employer. The loss shall be taken to include any expenses reasonably incurred by the Claimant in consequence of the dismissal and the loss of any benefit which she might reasonably be expected to have had but for the dismissal[20]It is the employee’s duty to provide evidence of her loss; see, for example, Adda International Ltd v Curcio 1976 IRLR 425 EAT.[21]Although neither party made reference to it in submissions, the Tribunal was provided with a copy of the judgment in Aegon UK Corp Services v Roberts [2009] IRLR 1042 which appears to be authority for the proposition that the Tribunal is not entitled to apply different principles of causation to different aspects of the remuneration package; in particular, the Tribunal cannot carve out pensions for special treatment.[22]In ascertaining the loss the Tribunal must apply the same rule concerning the duty of a person to mitigate his loss as applies to damages under the common law of England and Wales.[23]The Tribunal is under no duty to consider the question of mitigation unless the employer raises it and adduces some evidence of failure to mitigate; Fyfe v Scientific Furnishings 1989 ICR 648. When considering the question of mitigation, the Tribunal should: 23.1. Identify what steps should have been taken by the Claimant to mitigate her loss; 23.2. Find the date upon which such steps would have produced an alternative income; 23.3. Thereafter reduce the amount of compensation by the amount of income which would have been earned See: Savage v Saxena 1998 ICR 357[24]In Cooper Contracting Ltd v Lindsey UKEAT/0184/15 Langstaff J reviewed the authorities relating to mitigation and his conclusion can be described as follows: 24.1. The burden of proof is on the wrongdoer; a Claimant does not have to prove that she has mitigated loss. 24.2. It is not some broad assessment on which the burden of proof is neutral. 24.3. What has to be proved is that the Claimant acted unreasonably; she does not have to show that what she did was reasonable. 24.4. There is a difference between acting reasonably and not acting unreasonably. 24.5. What is reasonable or unreasonable is a matter of fact. 24.6. It is to be determined, taking into account the views and wishes of the Claimant as one of the circumstances, though it is the Tribunal’s assessment of reasonableness and not the Claimant’s that counts. 24.7. The Tribunal is not to apply too demanding a standard to the victim; after all, she is the victim of a wrong. She is not to be put on trial as if the losses were her fault when the central cause is the act of the wrongdoer. 24.8. The test may be summarised by saying that it is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate. 24.9. In a case in which it may be perfectly reasonable for a Claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that may assist the Tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient.[25]Without evidence adduced by the employer upon which the Tribunal can be satisfied that, on the balance of probabilities, the Claimant has acted unreasonably in failing to mitigate, a claim of failure to mitigate will simply not succeed; see: Look Ahead Housing and Care Limited v Chetty and another UKEAT 0037/14.[26]The amount of the compensatory award shall not exceed the lower of £78,335 (the relevant figure at the time of the Claimant’s dismissal) or 52 weeks’ pay. A week’s pay is calculated according to the rules in sections 221-229 but without applying the limit on a week’s pay set out in section 227.[27]Section 124A of the Employment Rights Act 1996 together with 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 provides that where an employer has unreasonably failed to comply with the Code of Practice, a Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase the compensatory award and damages for breach of contract by up to 25%. Similarly, where an employee has unreasonably failed to comply with the Code, a Tribunal may, if it considers it just and equitable in all the circumstances to do so, reduce the compensatory award and damages by up to 25%. Conclusion and further relevant findings of fact[28]The Tribunal accepts the Claimant’s evidence that she would not have left the Respondent’s employment by reason of the “bad blood” between her and Andy Thomas, not least because Andy Thomas was no longer managing her. Further, the lack of support about which she had complained had been addressed by the Respondent. Although the Claimant considered resigning in about May/June 2015 because the Respondent sought to reduce her SLAM responsibilities, those responsibilities were promptly reinstated and, but for the breach of contract which has been identified, there was no credible evidence to suggest that the Respondent would again seek to reduce the Claimant’s SLAM responsibilities. With 19 years’ service, the Claimant was clearly a loyal employee; there was no evidence to suggest that she might become disloyal or seek a change in her employment which she appears to have valued. Regardless of the Tribunal’s findings in paragraph 75 of its Reserved Judgment dated 3 February 2017, there was insufficient evidence before the Tribunal to suggest that had the Respondent had not breached the Claimant’s contract of employment, in other words the Claimant had been permitted to return to her SLAM role, that the Claimant would have left the Respondent’s employment in the near future as contended by the Respondent.[29]It certainly cannot be said, and the Respondent did not appear to be suggesting, that the Claimant acted unreasonably by taking up employment with her present employer.[30]The three vacant NHS positions referred to by Jason Bradley (two at pay band 8A and one at pay band 7) were said to be a snapshot of the vacancies taken from a job search undertaken shortly before the remedy hearing. Even disregarding the fact that those vacancies did not involve SLAM expertise and no credible evidence to suggest that the Claimant would have been successfully appointed, there was simply insufficient evidence before the Tribunal to conclude that there were vacancies of any other kind during the majority of the period following the termination of the Claimant’s employment for which she unreasonably failed to apply. The Respondent has failed to show on the balance of probabilities that the Claimant has unreasonably failed to mitigate her loss.[31]There appeared to be a lack of clarity on the Claimant’s part as to how the Tribunal should assess loss going forward. The Tribunal does not accept that looking forward the Respondent is required to show an unreasonable failure to mitigate on the Claimant’s part. Rather, the Tribunal is required to determine what is just and equitable. It will be a rare case where the Tribunal will award a career-long loss; see Wardle v Credit Agricole Corporate and Investment Bank 2011 ICR 1290 CA. The Tribunal must determine on the evidence before it when the Claimant, acting reasonably, will obtain comparable employment. Deciding future loss will almost inevitably involve a consideration of uncertainties: see for example Thornett v Scope 2007 ICR 236 CA. Also see: Contract Bottling Ltd v Cave 2015 ICR 146.[32]This is not a case where there is no real prospect of the Claimant ever obtaining an equivalent job. As the Tribunal has found, she is a highly capable individual with a university degree, has significant experience in the NHS including management, with analytical skills and is a SLAM specialist. SLAM vacancies are relatively rare. However, the evidence suggests that the Claimant could undertake a non-SLAM role. Thus, even if a SLAM vacancy were not to arise in the near future, it would be reasonable to expect the Claimant to apply for nonSLAM band 8A roles within the NHS. It has to be accepted that the Claimant might not be successful for a role for which she does not have specialist skills and knowledge (such as the mental health and cancer related roles referred to by Jason Bradley), but the Tribunal concludes that she would have a reasonable chance of being appointed to such roles. The Tribunal notes that the vacancies referred to were within a reasonable travelling distance of the Claimant’s home. The Tribunal also takes judicial notice that there are other NHS Trust employers situated within a reasonable travelling distance from the Claimant’s home. The Tribunal accepts Jason Bradley’s evidence, not least because he has much experience recruiting in the NHS, that such roles are regularly advertised and that there are difficulties in finding experienced candidates. Taking all these factors into account the Tribunal concludes that, on the balance of probabilities, the Claimant would be appointed to a Band 8A grade in the NHS within a period of 2 years from the date of the remedy hearing and that future loss should be so limited.[33]There was no evidence before the Tribunal to suggest that there was any equivalent employment outside the NHS.[34]There was no evidence to show that upon appointment to a Band 8A role the Claimant would necessarily have the benefit of a final salary pension scheme which she enjoyed when working for the Respondent. That will be a matter for the parties to consider when seeking agreement as to the compensatory award.[35]Mr Edwards submitted that the question of uplift was an issue raised at the last minute and that the Respondent did not have the opportunity to give evidence as to the reasonableness of the Respondent’s delay in dealing with the Claimant’s grievance. In any event, Mr Edwards submitted that the obligations under the ACAS Code of Practice fall away after an employee leaves employment because the Code refers to “employees” and “employers”. Dealing with those points in turn: 35.1. The drafting of section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 does not appear to suggest that an issue relating to the compliance with the ACAS Code of Practice needs to be raised by a party. Rather, it gives the Tribunal the discretion to increase any relevant award where it appears that there has been an unreasonable failure to comply. 35.2. The delay was clearly identified in paragraph 75.4 of the Tribunal’s Reserved Judgment dated 3 February 2017 and the Respondent could have reasonably expected the Claimant to raise the question of uplift. 35.3. Although the Code of Practice itself is silent as to whether exemployees fall within its scope, the definition of employee and employer section 295 of the 1992 Act, under which the ACAS Code of Practice is issued, includes former employees and former employers.[36]The Tribunal concludes that the ACAS Code of Practice and section 207A of the 1992 Act are applicable. The Tribunal does not accept, as submitted by Mr Sonaike, that there was a total failure on the Respondent’s part to deal with the Claimant’s grievance. The requirement for an employer to arrange a grievance meeting without unreasonable delay is but one aspect of the Code’s requirements. Nevertheless, the delay was significant and the Respondent has put forward no evidence as to why the delay might not be unreasonable. In the Tribunal’s view, it would be just and equitable for the compensatory award and damages for breach of contract to be increased by 10%.[37]The agreed and quantified sums set out in this Judgment are subject to the provisions of Employment Tribunal’s (Interest) Order 1990. Proceedings will be stayed for a period of 6 weeks so that the parties can calculate and agree the sum of remainder of the compensatory award.[38]The Tribunal’s records show that the Claimant paid Tribunal fees totalling £1,200.00. She is entitled to be reimbursed. AMENDED NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 2301307/2016 Name of case(s): Miss S Rahman v St Georges University Hospitals Nhs Foundation Trust The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 6 June 2017 "the calculation day" is: 7 June 2017 "the stipulated rate of interest" is: 8% MRS J TIDY For the Employment Tribunal Office INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE
Applicable law
[1]This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.justice.gov.uk/tribunals/employment/claims/booklets If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.[2]The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been[1]Further to the Tribunal’s Reserved Judgment on Remedy dated 30 May 2017 (the “Reserved Judgment”), in compensation for the remainder of the compensatory award, the Respondent shall pay £25,509.56 (“the Remainder Payment”) to the Claimant.[2]The Remainder Payment is inclusive of the 10% increase pursuant to paragraph 36 of the Reserved Judgment, to be paid subject to prior deductions for tax as required by law. Background[3]The Claimant issued proceedings against the Respondent in the London South Employment Tribunal under case number 2301307/2016 (“the Claim”).[4]The Employment Tribunal determined that the Claimant was unfairly dismissed and that the Respondent breached the Claimant’s contract of employment by failing to give notice or making a payment in lieu.[5]A Remedy Hearing took place on 18 May 2017. The Tribunal’s Reserved Judgment on Remedy dated 30 May 2017 set out the agreed and quantified sums which comprised of the following elements:a.£10,687.50 in respect of the Claimant’s entitlement to a basic award;b.£350 in respect of loss of statutory rights;c.£7,412.35 in respect of damages for breach of contract; andd.£1,200 in respect of re-imbursement of Tribunal fees[6]The elements of the Remedy identified at 5 b. and 5 c. were subject to a 10% increase by reason of the Respondent’s unreasonable failure to follow the ACAS Code of Practice. 10.7 Judgment with reasons – rule 62 March 2017 Case No: 2301307/2016[7]The Proceedings were stayed for a period of 6 weeks so that the parties could calculate and agree the sum of the Remainder.
The issues
[8]The Respondent paid the Claimant the sum of £20,426.09 (“the Reserved Remedy Payment”) in full and final settlement of the agreed and quantified sums in June 2017.[9]The Reserved Remedy Payment and the Remainder Remedy Payment (“the Remedy”) comprise the total sums payable to the Claimant.[10]The parties consider that the provisions of section 403 of the Income Tax (Earnings and Pensions) Act 2003 apply to the elements of the Remedy identified at paragraphs 2 and 5 a.-c. “the Taxable Payments”.[11]The first £30,000 of the Taxable Payments will be paid without prior deductions for tax. The balance of the Taxable Payments is subject to prior deductions for tax as required by law.