Mrs T Coleman v Home Comfort Care Agency Ltd: 2302221/2022
EMPLOYMENT TRIBUNALS
Case No 2302221/2022
Between
Mrs T ColemanClaimantHome Comfort Care Agency LtdRespondent
Before
Employment Judge ArmstrongMr N Toms (instructed by counsel) for claimantDate 19 August 2024
JUDGMENT
[1]The respondent’s claim for breach of contract is struck out under Employment Tribunal Rule 37(1)(c) because the respondent has not complied with a Tribunal order; and also under Rule 37(1)(a) because it has no reasonable prospect of success.
REASONS
Introduction
[1]The application was received more than 14 days after the judgment was sent to the parties. However, I am prepared to extend time as a request for written reasons was received within 14 days of the judgment being sent to the parties.[2]The application requests a reconsideration because(a) the respondent had complied with the case management order to provide further particulars of the counterclaim; and(b) the respondent was not given any warning that the counterclaim would be struck out.[3]There is no reasonable prospect of the application to reconsider the judgment succeeding on the basis that the purported further and better particulars were sent to the parties and the Tribunal on 7 July 2023. The Tribunal had sight of those further and better particulars at the time of considering the strike out, the same document having been provided to the Tribunal during the hearing by the claimant’s counsel. The attached written reasons explain fully why they were not considered to be compliant with the order of 30 May 2023.[4]Rule 37(2) provides that a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. The respondent’s representative had the opportunity to make representations at the hearing. She sought an adjournment for the respondent to seek evidence that the further and better particulars of claim had been submitted. That was refused. The respondent has now submitted that evidence as part of this reconsideration application and for the reasons set out in the written reasons attached, the document still does not comply with the requirements of the case management order and has no reasonable prospects of success.[5]A reconsideration of the strike out decision on notice to the respondent would serve no further purpose and would not be proportionate to the issues in the case. It would unnecessarily increase costs and delay for both parties. Case No: 2302221/2022 11.6C Judgment – Reconsideration refused – claimant - rule 72 ________________________ Employment Judge Armstrong Date: 23 November 2023 Case Number: 2302221/2022 EMPLOYMENT TRIBUNALS Claimant: Mrs T Coleman Respondent: Home Comfort Care Agency Limited[1]This was a claim for unpaid wages (including salary, mileage and on-call payments), unpaid holiday pay and for whistleblowing detriment. The respondent’s Response was struck out, and I allowed minimal participation from the respondent at this hearing.
Issues
[2]The issues were set out in the case management summary following the case management preliminary hearing of 6 October 2023 and are annexed below. Procedure Respondent’s participation in hearing
Procedure
[3]This matter has something of a complex procedural history.[4]The respondent was represented by Peninsula until November 2023, when they came off record.[5]On 6 October 2023 the respondent’s counterclaim was struck out, and a request for reconsideration was subsequently refused.[6]On 6 October 2023 employment Judge Armstrong made Case Management orders for the preparation of this case leading to a final hearing on 7, 8 and 9 August 2024.[7]The purpose of case management orders is to allow the parties to prepare for trial in an orderly manner. It gives them the opportunity to exchange their documentary and witness evidence. This gives the parties the opportunity to participate in proceedings and advance their case. Not complying with case management orders impedes the orderly, fair and just administration of justice.[8]From February 2024 onwards the respondent took no steps to comply with case management orders. I accept that during this period the respondent was without representation and was seeking representation unsuccessfully. Nonetheless, this does not absolve the respondent from the obligation to comply with case management orders.[9]On 12 June 2024 EJ Dyal ordered the respondent to state whether or not it had complied with case management orders, if not, to say why it has not to date, and to state why the response should not be struck out.[10]On 26 June 2024 a strike out warning was issued by EJ Burge because the claimant had not complied with EJ Dyal’s order. The claimant was Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017 given until 2 July 2024 to give reasons why the response should not be struck out or to request a hearing.[11]On 27 June 2024 claimant’s solicitors wrote to the tribunal to indicate that the respondent had not complied with EJ Dyal’s orders. On 27 June 2024 Mr Mihai wrote to the tribunal requesting an extension of 10 days for his statement to be “redacted and presented”. He indicated difficulties with representation.[12]On 11 July 2024 EJ Ramsden, in a judgment sent to the parties on 16 July 2024, struck out the Response on the basis that it was scandalous or vexatious, it had no reasonable prospects of success, the manner in which proceedings had been conducted was scandalous unreasonable or vexatious, and that it had not been actively pursued. EJ Ramsden indicated that the respondent would “be entitled to notice of any hearings and decisions of the Tribunal but will only be entitled to participate in any hearing to the extent permitted by the Employment Judge”.[13]At the start of the hearing today I heard from both parties as to what, if any, extent the respondent should be permitted to participate in the hearing. In short, the claimant’s position was that no participation should be allowed, certainly on the question of liability. Possibly the respondents participation could be permitted on the question of remedy. In short, Mr Mihai’s position was that lack of representation had led to the state of affairs today. He said he had put in documents which show that the claimant’s claim is based on lies. He said he had only seen the claimant’s bundle at 5 pm the previous day. He had produced only 10% of the documents he had but this was sufficient to show the claimant did not have a claim.[14]In determining the extent to which the respondent should be allowed to participate, I had regard to the reason why the Response had been struck out This included that the manner in which proceedings have been conducted by the respondent had been scandalous, unreasonable or vexatious. As I have set out earlier, case management orders are there to ensure the orderly and fair administration of justice.[15]I find that to allow the respondent to rely on documents which it should have disclosed many months ago during the case management process would not be in the interest of justice. Allowing the respondent to rely on documents it is only produced at the 11th hour has deprived the claimant of the opportunity to consider them when preparing her evidence and witness statement for this hearing. To allow these documents in, completely outside of the case management process, risks putting the parties on an unequal footing. Furthermore, to allow cross-examination of the claimant, no doubt based on these documents or information within them, would similarly not be in the interests of justice and risks putting the claimant on an unequal footing. The claimant has sought to comply with case management orders and the respondent has not. She should not be put at risk of ambush because of the way the respondent has conducted proceedings (which has led to its Response being struck out). Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017[16]It is for the claimant to present her case. I made it clear to Ms Iqbal that it is for the claimant to establish, in respect of the deductions from wages claims, what she says was properly payable and what deductions were made from that. The respondent will not be allowed to cross examine her on this issue or to make submissions on it.[17]In respect of whistleblowing detriment, the respondent has not provided any evidence on liability in respect of this issue, and it would not be in the interests of justice to allow a potential ambush in cross examination. However, I consider that it is in the interests of justice for the respondent to make submissions as to the appropriate injury to feeling award if the claim was proven.[18]After I gave an oral decision in respect of participation in the hearing, Ms Iqbal indicated that further documents had come to her attention and that she needed some time to discuss them with the claimant and to provide them to the tribunal. I gave her this time (one hour). The claimant sought to rely on 5 bank statements. Other procedural matters[19]The claimant produced a 217 bundle, and a separate correspondence bundle relating to procedural matters. The claimant produced a witness statement, and gave oral evidence. She produced 5 bank statements during the course of the hearing. I did not permit the respondent to cross-examine the claimant.[20]Ms Iqbal gave oral closing submissions. I allowed the respondent to make oral submissions in relation to injury to feeling, but in the event Mr Mihai gave broader submissions.[21]I delivered an oral decision. Mr Mihai asked for written reasons.
Facts
[22]The claimant was employed by the respondent, a care agency, as a Registered Manager from 31 August 2021.[23]The claimant’s contract of employment included provision for the following:a. The claimants working hours were 40 hours per week, but allowance was made to vary the pattern of working hours to meet the needs of the service.b. The claimant’s rate of pay were £16 per hour for normal office week work days and £17 per hour at the weekend, which accrued from day to day.c. The claimant was required to submit timesheets by the 25th of every month and would be paid monthly in arrears on the 30th of every month. Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017d. The claimant was entitled to 20 days paid holiday per year plus bank holidays. The holiday year ran from one April to 31 March.[24]The claimant said in oral evidence that her monthly pay could vary based on the hours that she did.[25]The claimant’s bank statement for December 2021 recorded that she received a sum in respect of salary from the respondent of £2438 on 1 December 2021.[26]In January 2022 the claimant had a meeting with Mr Mihai shortly before he went on annual leave, at which it was discussed that staff would not be getting paid until the fifth of month as he was upset that staff did not help him cover calls over the Christmas period. There was some discussion between the claimant and Mr Mihai about the need to ensure that staff get paid on time. She asked him to make sure she was paid on time as she had bills to pay.[27]The claimant’s bank statement for January 2022 recorded that the claimant received £250 from Mr Mihai personally which was not related to her wages. She received £2166.52 on 30 December 2021 in respect of salary.[28]The claimant’s February bank statement recorded that she received “advance page” of £2000 on 1 February 2022 and “rest pay Jan” of £397.56 on 2 February 2022.[29]The claimant’s March bank statement recorded that she received “Adv pay” of £1500 on 1 March 2022 and “rest salary Feb” of £880.60 on 8 March 2022.[30]The claimant said in evidence that the respondent paid her a part payment of her salary as she had bills to pay, and would pay her an additional sum later in the month. Her evidence was that the December salary of £2438 represented her normal salary. However, she accepted that her salary could fluctuate depending on the hours that she did.a. In respect of the January payments it was put to her by Ms Iqbal that the shortfall from the previous months of £271.48 represented a shortfall in her salary. Her response was that she might have been sick, and it might be that she did not work enough hours.b. In respect of the February payments she was asked whether £40.44 less than the £2438 was money missing. She said “Yes it seems so”. She said that without going through her text messages she could not say that this was correct.c. In respect of the March payments, the claimant was asked whether the shortfall of £57.40 from £2438 was money missing. She said that it was difficult to tell “without looking at the system. The month with the larger amount I may have done some calls. I don’t know whether that is the difference”. Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017d. The claimant confirmed that the payment of £880.60 on 8 March 2022 was the final payment she received from the respondent.[31]Between 170 and 186 of the bundle was a schedule of visits carried out by the claimant to service users between Saturday, 5 March 2022 and Thursday, 10 March 2022. The claimant drove to around 15 clients a day in various places in Kent during this period. The claimant agreed with the respondent that she would be reimbursed at the rate of 35p per mile. She drove 700 miles during this week. Mr Mihai was on annual leave this week.[32]The claimant also agreed with the respondent that she would receive £50 a day on-call payment over the weekend between 5 and 10 March 2022. There was only one weekend during this period.[33]The claimant was becoming concerned about late payment of her salary at this point. She sent messages to Mr Mihai about this and was assured that she would be paid.[34]On 11 March 2022 the claimant told Mr Mihai that she would not be able to attend work on 14 March 2022 as she had interviews booked and that she would need time to raise safeguarding issues with the CQC and the local authority due to the way she and her colleagues were being expected to work without being paid. She also raised concerns about lack of care plans and medication records working in the community during Mr Mihai’s absence.[35]On 14 March 2022 the claimant made an application to the CQC to cancel her registration in respect of regulated activities at the respondent care home. In the section on her reason for the application she said that she no longer wished to work for the respondent and had resigned. She said that she had to wait to be paid past the agreed pay date along with other staff. She said she will leave the respondent on 25 March 2022 to work for another company that she would be registering with.[36]On 18 March 2022 the claimant resigned by email to Mr Mihai. She said, among other things, that Mr Mihai had shared personal information about her with other staff, had approached staff to make untrue statements about her, that he had withheld pay from her and other members of staff illegally and that she had lost trust in him her employer. She asked for her outstanding pay including holiday pay.[37]On 19 March 2022 the claimant spoke to, and then emailed the local authority Safeguarding Adults Coordinator. She raised concerns about the way the care agency. She raised concerns about the number of calls that needed to be covered with the lack of staff. She said that the way that staff were treated was unfair and that an unsafe service was being provided. She raised concerns about staff not having support badges, problems with induction and training of staff, recruitment processes not properly followed in terms of risk assessments, proper DBS checks not being made, care Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017 files and care plans not being properly updated, working time regulations not being observed, staff not being paid on time and other matters.[38]The claimant was due to receive her final pay on 31 March 2022, but she received nothing. She was due wages from 25 February 2022 to her final working day 17 March 2022 including additional hours she worked in the community and on-call payments and accrued holiday pay. She also had, she said, outstanding mileage payments.[39]The claimant’s final payslip [187] showed that she had a Holiday Fund Balance of £232.97 representing a sum for accrued but untaken holiday. The law Deduction from wages
The law
[40]Section 13 of the Employment Rights Act 1996 (“ERA”) states that an employer shall not make deductions from wages of the worker unless they are required or authorised by statute or the workers contract, or the worker had previously signified his or her consent in writing to the deduction. Section 13(3) ERA describes a deduction in the following terms: - “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion”. Holiday pay[41]Under regulation 13 WTR, a worker is entitled to four weeks’ annual leave in any leave year and under regulation 13A, a worker is entitled to a further 1.6 weeks’ of annual leave.[42]Regulation 14 WTR provides:(1) Paragraphs (1) to (4) of this regulation apply where— (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date"), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13 F3and regulation 13A differs from the proportion of the leave year which has expired.(2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3). Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017(3) The payment due under paragraph (2) shall be— (a) such sum as may be provided for for the purposes of this regulation in a relevant agreement, or (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula— (A x B) - C where—A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A; B is the proportion of the worker’s leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. Whistleblowing Protected disclosure[43]The Employment Rights Act 1996 (“ERA”) provides as follows in relation to protected disclosures: Section 43A In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H Section 43B (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [is made in the public interest and] tends to show one or more of the following— … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, … (d) that the health or safety of any individual has been, is being or is likely to be endangered, Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017[44]The authorities stress the importance of the tribunal taking a structured approach to determinations relating to protected disclosures. As set out in Williams v Michelle Brown AM UKEAT/0024/19 “First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.''[45]There must be a disclosure of information, that is to say the conveying of facts, and it is not sufficient for the claimant simply to have made allegations Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38. However, a disclosure may contain sufficient information to qualify for protection even if it includes allegations. The question of whether there is sufficient information will be a matter of fact for the tribunal taking into account context and background (Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436). Kilraine further makes clear that in order for a statement or disclosure to be a qualifying disclosure it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters in section 43B(1) ERA.[46]In terms of the public interest element, in Chesterton v Nurmohamed [2017] IRL 837 the Court of Appeal set out factors to be considered by a tribunal in deciding whether there was a reasonable belief a disclosure was made in the public interest. They are the numbers whose interests the disclosure serve; the nature of the interests affects; the nature of wrongdoing disclosed; the identity of the alleged wrongdoer. Where a disclosure raises questions of a personal character, the question of whether it is reasonable to regard it as being in the public interest is to be answered by considering all of the relevant circumstances of the case. Dobbie v Felton [2021] IRLR 679 held that a disclosure relevant to one person could nonetheless be in the public interest.[47]The tribunal is to determine whether, i) the claimant had a genuine belief that the disclosure was in the public interest, and ii) whether he had reasonable grounds for so believing. The claimant’s motivation, as such, is not part of the test (Ibrahim v HCA International [2019] EWCA Civ 20).[48]A worker can be protected under the legislation in respect of disclosures made after the end of the employment relationship (Onyango v Berkeley Solicitors [2013] IRLR 338). Whistleblowing Detriments[49]Section 48 Employment Rights Act 1996 (“ERA”) provides inter alia: Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017 (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B.] (2) On a complaint under subsection …(1A) … it is for the employer to show the ground on which any act, or deliberate failure to act, was done.[50]In order to bring a claim under section 47B ERA the worker must have suffered a detriment. This must be judged from the point of view of the worker. “There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. The concept is well established in discrimination law and it has the same meaning in whistle-blowing cases” (Jesudason v Alder Hay Children's NHS Foundation Trust [2020] EWCA Civ 73). However, an unjustified sense of grievance cannot amount to a detriment (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).[51]The tribunal is to determine the reason why the claimant was treated as he was, which requires an analysis of the mental processes, conscious or unconscious, which case the employer to act as they did. It is for the employer to prove that the act complained of did not materially influenced the employer’s treatment of the whistleblower (Fecitt v NHS Manchester [2011] EWCA Civ 1190).[52]A worker can be protected under the legislation in respect of detriment occurring after the employment ceases, as long as the detriment has arisen in an employment context (Rhys-Harper v Relaxation Group Plc [2003] IRLR 484 and Tiplady v City of Bradford MDC [2020] IRLR 230). Conclusions Money claims
Conclusions
[53]I note the contractual pay is based on hours worked and determined on the basis of timesheets put in by the worker. The claimant’s case is that I am to determine the amount properly payable to the claimant by looking at what she was paid in December 2021 as a reference point, and that any shortfalls in the following months represent the amount deducted.[54]The claimant points to shortfalls as set out in paragraph 30 above.[55]There is some difficulty in establishing what was properly payable during these months, and whether there has been a deduction. The pattern emerging from the evidence is that the respondent would make any substantial part payment of salary, and then attempt to make up the shortfall later in the month. The claimant has also, in effect, that she was uncertain whether the shortfall is related to the hours that she had worked. Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017[56]In the circumstances I do not find that there was a deduction of wages from what was properly payable at the end the months of January, February, and March.[57]In respect of the final month’s pay, it is common ground that nothing was paid, but that the claimant worked.[58]Given the fact that payment is based on hours work, I have some concerns that the sum of £2438 from which I assessed deductions. However, I note that payments in the following months are very approximately this figure, albeit slightly lower. I therefore have used this as a monthly figure from which to work out an appropriate pro rata payment for the final part of the final month worked. I conclude that this pro-rata amount was the amount properly payable.[59]Where I struggle is with the calculations put forward by Ms Iqbal. She submits that the final pay period amounts to 18 days, and that the claimant should be paid 18 days at the daily rate of £81.26 (being a daily rate for a monthly sum of £2438).[60]I have no difficulty with the daily rate of £81.26. However, I do not accept that the claimant worked each and every day of those 18 days. Not least as in her witness statement at paragraph 14 she sets out that she did not work on 14 March 2022. Taking a pragmatic rough and ready approach I find that it is likely that the claimant worked something approaching a five day week. I therefore consider that she worked 5/7 of those 18 days, namely 12.86 days. Applying the daily rate of £81.26 this gives a figure of £1045.[61]The claimant gave unchallenged evidence (for the reasons set out above) that she had driven 700 miles for which 35p per mile was payable. I conclude that a sum of £245 has not been paid in breach of an oral term of the claimant’s contract.[62]I further conclude that the claimant is entitled under an oral term of her contract to payment of the sum of £100 for one weekend on-call payments.[63]In respect of holiday pay, the claimant’s contract terminated practically at the end of the holiday year. I find that 12 days’ holiday had not accrued, and I adjust the holiday pay set out in the Holiday Pay Fund by taking off £7.66 from £232.97, leaving a figure of £225.31. Whistleblowing detriment Protected Disclosure[64]I find that the claimant’s disclosure to her employer, at paragraph 34 above, that there was a lack of care plans and medication records, was a sufficiently specific disclosure of information that, in the genuine and reasonable belief of the claimant, tended to suggest that the respondent Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017 was not complying with legal requirements to maintain care plans and keep medication records and to pay staff salaries on time. The lack of care plans and medication records tended to suggest that service user safety was being or likely to be endangered.[65]I find that the disclosures relating to care plans and medication records were made in the genuine and reasonable belief that such disclosures were made in the public interest. In respect of service user safety, it is fairly self-evident that it is in the public interest that there should be adequate record keeping in respect of vulnerable service users. In respect of staff salaries, the claimant was not simply referring to her own pay issues, but those of others working in the care sector. I find that it was in the genuine and reasonable belief of the claimant that making such disclosures in respect of the wider workforce was in the public interest.[66]I find that the disclosures at paragraph 35 above, to the CQC, a prescribed person, about staff pay was protected. The reasons in the previous paragraph in respect of pay are equally applicable.[67]I find that the disclosures to the local authority are not protected. The local authority is a prescribed person insofar as it is “it is responsible for the enforcement of health and safety legislation” (Public Interest Disclosure (Prescribed Persons) Order 2014 Schedule). The claimant was not asserting a breach of this legislation. Detriment[68]As set out above, under section 49(2) ERA 1996, the burden rests on the employer to show the grounds on which any act or deliberate failure to act was done. The dismissal of the Response obviously handicaps the respondent’s ability to do this. I find that the respondent has not established the grounds on which it failed to pay the claimant the final instalment of her wages.[69]Accordingly I find that the failure to pay the final instalment of wages was done on the grounds of the protected disclosures. Remedy for whistleblowing detriment[70]The claimant gave evidence of the difficulties she encountered on not receiving her pay. She had to borrow money from her elderly mother, which cause significant stress and embarrassment.[71]The claimant referred to medical issues, including stress and anxiety. From an examination of the medical evidence, these were medical issues which significantly pre-dated the detriment. I can accept that not receiving pay would exacerbate these problems, but it did not cause them.[72]The claimant referred to the first instance employment tribunal decision of Liparia v Bluewood Recruitment 2600802/2016. In which the tribunal awarded an (inflation adjusted) sum of just under £10,000 to a claimant Case No: 2302221/2022 10.7 Judgment with reasons – rule 62 March 2017 who was the subject of a number of detriments, including being insulted and given a poor reference. This was at the top of the bottom Vento band.[73]In this case, as I have set out, I do not consider that it is possible to establish that the detriment led to the extent of injury to feeling asserted by the claimant. It was one detriment, although I do not minimise the stress of not being paid and having to borrow money from family. I do not, therefore, put this at the top of the bottom Vento band, but around 2/3 the way up it. This gives a figure of £6,500.