Ms J Carr v Patmore Co-operative Ltd: 2303509/2019

EMPLOYMENT TRIBUNALS

Case No 2303509/2019

Between

Ms J CarrClaimant

Patmore Co-operative LtdRespondent

Before

Employment Judge Corrigan

Mr M Islam-Choudhury (instructed by Counsel) for respondent

Date 8 July 2021

JUDGMENT

This was a remote hearing which was not objected to by the parties. The form of remote hearing was V – Video (CVP). A face to face hearing was not held because it was not practicable. I was referred to email communications in the unredacted hearing bundle at pp 66-69, 73-74 and pp78-79, the unredacted witness statements and the parties’ written submissions.

[1]The contested material was inadmissible by virtue of s111A Employment Rights Act 1996.

REASONS

[1]This matter was listed as a CVP hearing due to the Covid-19 pandemic.

[2]At the outset of the substantive hearing I had to determine a preliminary issue in relation to the admissibility of certain communications between the parties in email correspondence on pp66-69 of the unredacted bundle, and references back to the correspondence in pp 73-74 and 78-79. I have set out my decision here separate to my substantive decision as I decided the material was not admissible.

[3]The issue related to whether the third paragraph from the bottom of page 66 and the emails on page 68-69 was inadmissible applying s111A Employment Rights Act 1996.

[4]S 111A states as follows: “(1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. This is subject to subsections (3) to (5). (2) In subsection (1) “pre-termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee….”

[5]The Claimant’s representative contended that the material was inadmissible. The Respondent contended the material was admissible. The Respondent’s representative referred to The ACAS Statutory Code of Practice 4 (29 July 2013) – “Settlement Agreements (under section 111A of the Employment Rights Act 1996”. In his skeleton argument he stated: “Para 3 makes plain that “settlement agreements” are “legally binding contracts which can be used to end the employment on agreed terms”. Para 6 goes on to state: Section 111A of the ERA 1996 provides that offers to end the employment relationship on agreed terms (i.e. under a settlement agreement) can be made on a confidential basis which means that they cannot be used as evidence in an unfair dismissal claim to an employment tribunal.” …Therefore, it is clear from the above that the purpose of the legislation is to enable parties to agree terms to end employment by way of a settlement agreement without the risk of antecedent negotiations being admissible in evidence for an unfair dismissal claim. In other words, it is to facilitate agreed terminations, not dismissals and not resignations. It is contended that if a party has already unilaterally decided to end the employment, either through dismissal or resignation (as the case may be) then any subsequent negotiation is outside of the scope of section 111A(2), as the discussions or offer are not with a view to ending employment on agreed terms as the employment will end by either resignation or dismissal.”

[6]I found the communications in question occurred before termination. Termination is the date the employment ends. It clearly had not done so at the relevant time.

[7]The Claimant stating her intention to leave at some stage when she had found a new job was not a termination. Nor was it unequivocal, though I am not sure that makes a difference, as even if one side did give definitive notice of termination on a future date, discussions could still lead to a settlement agreement or agreement of terms of departure after the day notice was given but before the termination and fall within the definition.

[8]In her email at p66 the Claimant acknowledged it was not the best time for the Respondent for her to be thinking of leaving and she was offering to fix a date and work together to recruit and train a replacement. She was suggesting a benefit to the employer and a benefit to herself and seeing if a compromise could be reached so she left on a date agreed between the parties before finding another job. These were the proposed “terms of departure”.

[9]She still referred to a potential compromise on p68. There, she explained her preferred date to leave and acknowledged it would put the organization in a difficulty. She proposed she give notice and extend her employment beyond that preferred date to cover the year end/audit and to help with recruiting and training her replacement in return for an extra financial payment in her final pay. Here the proposed terms of departure were the date of termination and the additional fee. She was suggesting she was not going to give notice and leave on that later date without the additional work and pay. The proposed additional work related to her departure and the facilitation of her replacement. The proposal was unconventional I agree, but it fits within the definition in s 111A (2).

[10]The two communications on pp 66 and 68 flow together, one was an expansion on the first and together formed an offer about the terms on which she proposed to leave her employment. These were inadmissible by virtue of s111A (2). Page 69 essentially repeated the proposal and the later pages referred back to these proposals. In the substantive hearing I did not take these communications into account and I used the redacted bundle.

[1]This matter was originally listed as a CVP hearing due to the Covid-19 pandemic.

[2]At the outset of the substantive hearing I had to determine a preliminary issue in relation to the admissibility of certain communications and I determined they were inadmissible. I thereafter used the redacted bundle and witness statements and took no account of the inadmissible material in the substantive decision. My written reasons for that decision have been provided separately. I note that I did also, with the agreement of the parties, consider page 61 of the unredacted bundle as it was not a redacted document and my copy in the redacted bundle was illegible for other reasons.

[3]The Claimant claims constructive unfair dismissal and wrongful dismissal (for the balance of her notice period). The issues were agreed with the parties at the outset to be:

[4]Did the Respondent fundamentally breach the contract of employment? The Claimant relied on the term of mutual trust and confidence, namely that the employer should not, without reasonable and proper cause, act in a manner calculated or likely to seriously damage or destroy the trust and confidence between the parties.

[5]The alleged conduct relied on was the alleged failure to reduce the Claimant’s workload proportionate to reduced hours. Did the Claimant resign in response? Did the Claimant affirm the contract?

[8]The Respondent conceded that if the Claimant was constructively dismissed it was unfair.

[9]Was there a chance the Claimant would have left in any event and if so when?

[10]Was there an unreasonable breach of the ACAS Code as the Claimant did not raise a grievance before she resigned?

Hearing

[11]On behalf of the Respondent I heard evidence from Mr John Osbaldeston (Member of Management Committee), Mr Chris Laytham (Co-op Manager) and Mr Jimmy (James) Dodd (Chairperson). I heard evidence from the Claimant on her own behalf. With the agreement of the parties Mr Osbaldeston gave evidence first, then the Claimant followed by the remaining witnesses for the Respondent. The Claimant was recalled to give her an opportunity to comment on 2 matters that had not been put to her.

[12]The redacted bundle had 176 pages. The parties’ representatives made oral submissions.

[13]Based on the evidence I heard and the documents before me I found the following facts.

Facts

[14]The Claimant was employed as Finance Manager for the Respondent from 3 April 2006 until her resignation on 27 March 2019. She had also worked for the Respondent previously.

[15]The Respondent is a not-for-profit community organisation responsible for providing day to day services at the Patmore Estate to include repairs, cleaning, maintenance, and tenancy issues pursuant to an agreement with the London Borough of Wandsworth. It is managed by a Management Committee elected by residents. At the relevant time it employed 6 people including the Claimant and a Finance Officer.

[16]There were a number of changes to the Claimant’s contractual hours over the years, initiated by the Claimant because of changes in her personal circumstances. The Respondent accommodated these requests. When the Claimant needed additional income she was given additional hours and duties, but then these reduced when she could not sustain the additional day.

[17]One such example is the letter dated 5 March 2015 (p41) in which the Claimant requested to work 2 long days a week. In it she said she had always worked 2 days a week from 2006-2012 (though the written contract said three). She was requesting to return to 2 long days because of the travel time in her commute, with some additional hours as necessary. Another email at page 45 dated 29 March 2016 was a request to return to working 3 days a week because she needed the additional income for a mortgage and not all of her overtime income could be counted. She said: “…10 months ago when I requested to cut down my days from 3 to 2 but working longer hours I thought I would be able to manage …but as you know I have been struggling to keep up with everything and have ended up doing overtime to try and get everything done/attend meetings etc”. She had been looking for and been offered another 2 day a week job but preferred to increase her days with the Respondent instead. In the event the Claimant agreed to 4 shorter days a week and some additional responsibilities to support the Co-Op manager as set out on page 47.

[18]The Claimant became her father’s full-time carer in September 2017. Informally she began doing 1 day in the office and as much work as she could at home (p53). On 20 October 2017 she provided her Line Manger with a breakdown of her duties and which could be performed at home and which required her to be in the office. According to that list a substantial part of her job required her to work in the office.

[19]Then on 15 November 2017 she made a flexible working request (p57). In that she said “…I know that ‘all’ of my existing role could not be covered on the basis of one day in the office/two working at home ‘long term’ and… it would put too much pressure on the other staff as it would be one less in the office…” Again she said that for the majority of her time working for the Respondent (almost 20 years in total) she had only worked 2 days a week. She said: “…This has evolved to three…due to taking on extra responsibilities following staff redundancies…. I would like to propose that my contracted hours be reduced to 16 hours a week, one day (8 hours) in the office and one day (8 hours) working at home.” She said that she could carry out all the original Finance Manager duties in this time. She said she would do additional overtime at the year end. She said this would free up her salary and a more junior member of staff could be recruited. She said they could help cover the office and take on some of the extra duties she had taken on. She said her biggest concern was that other staff would be under too much stress if her reduced hours were not covered by additional help. She said being able to access emails and “SDM” at home would enable her to do more work at home. It was clear she planned to set up remote access. She said it was not ideal and not a long-term solution. This was agreed to but was to be reviewed (p60).

[20]The Claimant was no longer to do additional duties relating to major projects and insurance arrangements. This took effect from 1 January 2018. In addition the Claimant was able and did claim overtime, paid at a higher rate. She says she also did other hours for which she did not claim, though there was no limit on the overtime she could claim.

[21]The Claimant did not request to change this arrangement until after Wandsworth Council identified that her contract did not reflect her actual hours. Faced with having to sign a new contract for 16 hours the Claimant did not wish to when she in reality she was still doing the 21 hours with the additional hours she did. She also said that she continued to get other benefits reflecting the higher rate.

[22]In oral evidence the Claimant said she asked more than once what was happening about employing someone else (the more junior member of staff referred to at paragraph 19). Mr Laytham says he did not consider it was needed. At some stage the Claimant said she could not cope with the long day working in London. This was probably January 2019 given the language of the grievance. In her grievance she referred to having made Mr Laytham aware that she was struggling with the long day in London every week at the beginning of January 2019. Notably she did not say that she had said this before that. He replied that it was a shame she could not do more work at home. She did not challenge this and I accept from the documentation that the Claimant did not think she could do all of the work at home.

[23]Up until the request to sign the new contract she did not raise with the Respondent that she had an issue with her duties not being reduced when her days were reduced. In her witness statement she said she assumed it was obvious. Her representative has said Mr Laytham should have known. She said in oral evidence that she had raised it verbally with Mr Laytham, but this was not written in her statement and she had assistance from her representative to prepare that statement, and it is a fundamentally significant fact to mention. Other language used at the time contradicts this such as the fact she “assumed it was obvious”. On balance, I do not accept it more likely than not that she raised it as an issue.

[24]The Claimant wrote to Mr Laytham on 17 September 2018 when asked to sign the new contract (p61). She said: “Before signing a new contract/amendment to my contract I would like us to meet and review my current position. Since January 2018 I have been practicing flexible working arrangements and my contracted hours/pay has reduced from 24 to 16 hours a week. Although I feel this has worked quite well, in reality I am working far more than 16 hours a week. My duties haven’t really decreased at all and there has been no additional staff employed…. I think you need to decide if you want to take away some of my duties and keep my contracted hours at 16 per week or for me to continue doing what I am doing and increase my hours up to 21 per week, which is realistically what I am doing?”

[25]She pointed out how much overtime she was doing and said she preferred to be paid under her contract for the actual hours she was doing. That was the extent of the preference she gave. She also said the days of the week she preferred to work in the event the Respondent preferred to increase her hours to 21 a week. She said she would do one day in the office and two at home. She planned in fact to spread the time working at home over more days. She says now her preference was the two days with fewer duties but the steer in the letter is more towards increasing her hours back to 3 days.

[26]The Claimant and Mr Laytham had a discussion and he was persuaded she was doing 21 hours a week and so agreed to the 21 hours and the two days at home. The Claimant’s response was to say “Ok that’s fine” (p 63). It was the Claimant who chased up the decision (p64). Throughout those communications there is no suggestion the Claimant preferred to stay at 16 hours with some duties removed. There is no reference to there having been other discussions about this.

[27]In November 2018 the Claimant had a heart attack scare which she informed the Respondent was related to stress. She accepts she did not specify work related stress. She had one week sick leave. There was no return to work meeting to discuss the reason for her absence further. She worked as normal and then took two weeks off over Christmas.

[28]Prior to her return after Christmas she wrote the email at p 66 on 6 January 2019. She said: “…it is time for me to think about leaving [the Respondent] and looking for a more local part time job which will fit in better around caring for my dad. ...although [the Respondent] has been really accommodating during this time and I have managed to cover my role by working one day in the office and two at home, I still feel that this has put a lot of pressure on the other staff.” She said she was finding the journey into London quite stressful. She also said she felt frustrated as there was so much to do setting up new systems and she did not have enough time to do all that was needed. She acknowledged it was not the best time but said she could not go on much longer. This falls short of saying that she was overworked or being a complaint that she wanted to do 16 hours a week but her duties were not proportionately removed. She went on to say she believed the Respondent should employ a full time/office based Finance Manager which would help relieve pressure on other staff.

[29]In response Mr Laytham said he would be sorry to see her leave but he appreciated the pressures she was under (by which he meant her full time caring responsibilities and the commute to London, which is what she had referred to in her letter). He said he was not sure if there was anything further the Respondent could do to assist but they could have a talk about it. A discussion did take place but nothing was raised in respect of what could assist the Claimant further to stay.

[30]On 14 February 2019 the Claimant wrote a similar letter to the Management Committee. She mentioned again that she had become her father’s full-time carer. She said again the Respondent had been really accommodating and allowed flexible working (one day in the office and two at home) which had allowed her to cover her role without disruption. She said again it was putting pressure on the other staff and that the commute into London had become stressful. She again said she would look for a local job to fit around her caring responsibilities. She said this was not an ideal time with the year-end looming but that she could not carry on for more than a few more months. Again there was no indication this was because she was overworked or would have preferred to have remained at 16 hours a week with fewer duties.

[31]Mr Laytham presented a report to the Management Committee dated 20 February 2019 (p71). He had contacted someone who provided a finance related service to several co-ops. He said he normally worked 1 day a month, but for the Respondent it might need to be more. It was suggested he would be used by the Respondent to deal with the year end. This was discussed and agreed at a Management Committee meeting on 27 February 2019. Mr Dodd gave evidence that they did also consider whether the Claimant could be able to work more at home but they did not think this was feasible as some office attendance was required.

[32]The Claimant provided her resignation on 28 Feb 2019 giving one month notice to 27 March 2019. There was no further explanation in that letter (p81).

[33]The Claimant then met with the person who was to provide freelance services. She was upset that he was to have a more flexible arrangement than she had had and felt that a similar arrangement would have enabled her to stay. She raised a grievance to that effect the day after her employment ended. She requested her grievance be dealt with in writing and it was.

[34]The Claimant’s representative described the grievance as a well thought out, accurate document. Again in that grievance she referred to having made Mr Laytham aware at the beginning of January 2019 that she was struggling with the long day in London every week. Notably she did not say that she had said this before that. She also made clear she was aggrieved that a freelance person had been appointed to cover the year end work with more flexibility than she had had. Other duties had been reassigned to other staff. She said this was so unfair as if her work could have been redistributed so she did not need to work such a long day in the office then she could have stayed.

[35]She said “….It was never suggested to me that some of my work could be re- distributed. When I first started the Flexible working arrangement (Jan 2018), I had agreed to reduce my contracted hours from 28 to 16 per week …and thought that the saving on my salary would enable [the Respondent] to employ a part time person that could help with cover in the office and take on some of my office based duties. This didn’t happen and I ended up still covering all of my role. I then had my working hours increased back to 21 hours a week in October 2018 to enable me to cope with the workload…this proves I was happy to work less hours and accept a change in my contract and again makes me question why my role could be reduced for a Freelance preson coming in but not for me to be able me to stay? [Mr Laytham] (and I assume the committee) are fully aware that my only problem since being a full-time carer for my dad has been spending the long day in the office every week (sometimes up to 13 hours with travelling). I had no problem working as many hours as required at home…”

[36]She said in the grievance she felt she was not given all the options available. Tellingly she does not say that she requested this.

[37]The freelance person was appointed because of the urgency of the year end but that arrangement did not last long. The Respondent has not recruited a new Finance Manager and the tasks have been absorbed by other staff, in particular Mr Laytham. Relevant law Constructive dismissal

Relevant law

[38]Section 95 of the Employment Rights Act 1996 states: (1)For the purposes of this Part an employee is dismissed by his employer if . . ._ . . . (c) 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.

[39]The leading authority is Western Excavating (ECC) Ltd v Sharp

1978 ICR 221

. For section 95 (c) to apply the following must be shown:39.1 a repudiatory breach of contract by the employer (i.e. a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract and which entitles the employee to leave without notice);

39.2 the breach caused the resignation; and

39.3 the employee did not delay so long before resigning that he is regarded as having affirmed the contract and lost the right to treat himself as discharged.

[40]There was an implied term in the Claimant’s contract of employment as described in Malik v Bank of Credit & Commerce International

[1997] IRLR 462

that the employer shall not, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

[41]A breach of the implied term involves conduct which seriously damages or destroys the trust and confidence between the employer and employee. Both sides are expected to absorb lesser blows (Croft v Consignia Plc

[2002] UKEAT 1160_00_3009

[42]A series of actions culminating in a “last straw” can cumulatively amount to a breach of the implied trust and confidence, but the “last straw” must contribute something to the breach, it cannot be entirely innocuous (Omilaju v Waltham Forest LBC

2005 ICR 35

). Conclusions Did the Respondent fundamentally breach the contract of employment? The Claimant relied on the term of mutual trust and confidence, namely that the employer should not, without reasonable and proper cause, act in a manner calculated or likely to seriously damage or destroy the trust and confidence between the parties. The alleged conduct relied on was the alleged failure to reduce the Claimant’s workload proportionate to reduced hours.

Conclusions

[43]As set out above the alleged conduct said to be a fundamental breach of contract and breach of the term of mutual trust and confidence was the alleged failure to address the Claimant’s workload and ensure it was proportionate to the hours worked. The Claimant’s representative clarified that the allegation was that the Claimant’s workload was not reduced when her hours were reduced to 16 hours a week from 1 January 2018 at her request, and that even after she began working at 21 hours a week she still did not have enough time for the work available as he argued is reflected in the letter at p 66. He argued the Respondent did not do anything to address her need to reduce hours, her being overworked, or her need to work less in the office. There is also the issue she had with the long day in London.

[44]The Claimant made a number of requests for her hours to go up and down over her employment. They were always acceded to and the Claimant has at times described the Respondent as accommodating.

[45]When the Claimant made requests to go down to 2 days a week she referred to the fact that she could do her duties in that time and that she had only worked 2 days for much of her employment. I accept that she did then have to do overtime, some of which she claimed payment for and some for which, by her own choice, she did not claim payment. I accept she may have struggled with her workload. I also accept that her view was that the Respondent should have employed someone else to help in the office and there are occasions when she asked about this.

[46]Mr Laytham did not consider it necessary to create an additional role to help in the office. I find that the Claimant did not raise with him at any time that this was a problem and that it impacted her and meant she had an excessive workload. She only raised the issue of her workload having not reduced to fit the 2 days a week when she was asked to sign a contract permanently varying her hours to two days a week. She was unhappy to do this and gave the Respondent the two choices as set out at paragraph 24 above. Her own letter leaned towards restoring her hours to 21 hours per week (which is what she said she was realistically doing) and the Respondent agreed to this. 46. I do not agree that it was obvious to the Respondent that the Claimant felt she had an excessive workload and was not coping with 2 days a week plus overtime or that her workload had not reduced sufficiently to reflect her hours. The Claimant raised issues when she had them and she tended to present information in a way favourable/ to support whatever request she was making, see for example that she said she could do her work in 2 days when she was asking to reduce her days. I do not find it obvious that she would not be coping with the 2 days and the overtime she was claiming without her raising it with the Respondent. I do not accept that she asked for any specific duties to be taken away. Nor did she specifically ask to be able to reduce the time she was in London. Had she raised these issues the Respondent would have considered them.

[47]Although it is not clear what would have been decided had she raised these issues, the Respondent gave her what she requested each time she asked, with the exception of appointing a new part time worker to cover in the office.

[48]With respect to the issue of a new part time role to cover in the office, I accept the Respondent did not consider that role necessary in the absence of the Claimant being clear about duties she needed to redistribute, and as the Claimant’s duties have now been absorbed by existing staff it is likely it was not necessary. 48. The Respondent’s conduct was not conduct that could destroy or seriously damage trust and confidence. Anything less is expected to be absorbed by the parties. Moreover, the Respondent had reasonable and proper cause not to recruit the additional member of staff requested for the reasons set out at paragraph 47. Otherwise, the Claimant’s hours of work reflected her own requests. Although she may have had more overtime than she had intended between January and September 2018 she made no issue of it.

[49]I do not find that the Respondent breached the mutual term of trust and confidence. Did the Claimant resign in response?

[50]In any event the Claimant resigned because of the commute and her caring responsibilities and because she could not see how the job could be done any other way. She preferred to seek a job local to home. This had nothing to do with the Respondent’s conduct. She only became unhappy when she perceived someone else to be given a more flexible arrangement and to be expected to be in the office less and she felt the Respondent should have raised this option with her. This was after her decision to resign and was not therefore the reason that she resigned. Did the Claimant affirm the contract

[51]Even if there was a fundamental breach of contract in respect of the period of time when the Claimant’s hours had reduced to 2 days a week with overtime (the period January- September 2018) then the Claimant affirmed the contract by agreeing to the variation to 21 hours, which she said reflected what she was doing. At that time she did not raise any suggestion that the alternative of reducing her workload was her preference. On the contrary her own letter appeared to steer towards the 21 hours option, which was granted.