Mrs A Lodh v Mission Care Management Ltd: 2304448/2019
JUDGMENT
[1]The Claimant’s claim of unfair dismissal is not well-founded. The claim is dismissed.[2]The Claimant’s claim of wrongful dismissal is well-founded. REMEDY JUDGMENT BY CONSENT 1. The Respondent will pay the Claimant agreed compensation for wrongful dismissal of £5275.36 JUDGMENT having been sent to the parties on 6th March 2023 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
[1]The Claimant initially brought claims of unfair dismissal, unlawful deduction from wages, wrongful dismissal, and direct and indirect age discrimination. The claims for unlawful deduction from wages, and direct and indirect age discrimination were dismissed on withdrawal in a Judgment dated 30th November 2022 leaving the unfair dismissal and wrongful dismissal claims.[2]The hearing took place by video hearing on the above dates. The Tribunal had an agreed hearing bundle which consisted of 225 pages. In the course of the hearing an additional document (namely the index to the disciplinary bundle) was added by agreement of both parties. The Tribunal heard evidence from the following people: For the Respondent: 1) Rebecca Price; and 2) Sakshi Wahi. For the Claimant: The Claimant; and Sheila Lodh.[3]At the time of the hearing, the Claimant was 70 years of age and suffering from ill health. She requested and was granted 10 minute breaks every 30 minutes in order comfortably to complete her evidence. By agreement the Claimant’s daughter and witness, Sheila Lodh sat beside her mother throughout the hearing, assisting her with accessing the online hearing, and finding various documents referred to in the course of the hearing.Findings of fact
[4]I made the following findings of fact.[5]The Respondent is a charity which provides nursing care to vulnerable adults with dementia across a number of care homes in South London.[6]The Claimant was employed as a nurse by the Respondent from 7th March 2005 until 7th May 2019. The Claimant worked at Homefield Care Home, for 35 hours a week, these hours being split across three shifts per week. Before her summary dismissal, the Claimant had a clean disciplinary record. I accept her unchallenged evidence that she was a hardworking employee, who cared for her patients, and came in to her place of work on her days off.[7]The Claimant’s contract of employment contained reference, under a section entitled “staff conduct” to a staff handbook, and stated that any breach of the disciplinary rules would render the Claimant liable to disciplinary action.[8]The staff handbook contained a number of policies, including a code of conduct, annual leave policy, and disciplinary policy.[9]The Respondent’s Annual leave policy contained the following: Annual leave is requested from your Line Manager, by completing an Annual Leave Request Form in advance. You should avoid booking any travel/holiday arrangements associated with any period of annual leave requested until your leave request has been approved by your Line Manager.[10]The Respondent witnesses gave evidence, and I accept, that the 24 hours a day, 7 days a week provision of service of the health care industry renders it difficult to maintain service provision if permanent staff are absent for a period of more than 2 consecutive weeks.[11]The Respondent also gave unchallenged evidence that it is more difficult to find agency and bank staff (who are not contractually obliged to accept shifts) to cover the Christmas period, when more people want time off.[12]The annual leave policy also contained the following provision relating to unpaid leave: “There is no entitlement to unpaid holiday, but it may be granted by your Line Manager subject to approval by Human Resources in extraordinary circumstances. Extraordinary circumstances do not include having used up your paid leave entitlement for the year.”[13]The Respondent’s disciplinary policy includes provision for the enforcement of standards of conduct:• Investigation, which may include interviews;• Suspension; and• Hearings, in which an employee will be given the opportunity to respond to allegations, provide evidence in support of their case, request relevant witnesses, raise any additional relevant issues which they would wish to be taken into account.[14]The Disciplinary policy also gives a non-exhaustive, indicative list of behaviour which may be considered to be gross misconduct, including:• Dishonesty;• A serious breach of trust;• A serious breach of the Respondent’s policies and rules.[15]The Respondent organised rotas for staff shifts on a home by home basis. At Homefield, the home in which the Claimant worked, the rota was scheduled by Ms Matsvi, who at the time was clinical lead. I accept the Respondent’s evidence that Ms Matsvai did not have the authority to approve or refuse requests for leave. I also accept the Claimant’s evidence that, where she was able, and whilst ensuring appropriate cover was provided, Ms Matsvai would schedule shifts according to individual staff preferences.[16]The Claimant gave evidence to the tribunal that before submitting a request for annual leave, she had a verbal conversation with Ms Matsvai about the rota for the Christmas period. She is not sure exactly when that conversation took place.[17]The Claimant’s evidence in her witness statement and to the Tribunal was that she had agreed verbally with Ms Matsvai that she would work on 28th, 29th and 30th Dec. At paragraph 6 of the ET1, the Claimant states that she asked Ms Matsvai “not to schedule me for the Christmas period”. In evidence, the Claimant agreed when it was put to her by the Respondent that “the Christmas period” means the period between Christmas and New Year. I consider it possible that some confusion arose between the Claimant and Ms Matsvai as to the precise nature of the Claimant’s request.[18]Following her conversation with Ms Matsvai, the Claimant gave evidence that she spoke with her manager Stellamary Georgy about her request. I have seen an email chain (page 123) dated 22nd Nov in which Ms Georgy is asked whether she authorised the Claimant’s annual leave request before it was sent to HR. Ms Georgy responds that she hasn’t authorised the request, and that she made it clear to the Claimant that the request had to be “approved from HR (Rebecca) as it is over 3 weeks of leave”. On the basis of this email; the Respondent’s policy in respect of annual leave requests of over 2 weeks; and the Claimant’s subsequent actions in making a written request for 4 weeks annual leave, I make a finding of fact that Ms Georgy did not tell the Claimant that she authorised her request for annual leave.[19]At page 111 of the bundle there is a typed letter dated 30th October 2018, addressed to the Manager of Homefield Care Home, in which the Claimant requested 4 weeks annual leave from 3rd to 30th December 2018, due to a family reunion. Within the request the Claimant states that she has never attended this reunion since working at Homefield; that she has always worked on Christmas Day and over the festive season; and asks for the request to be accommodated in light of this. The Manager of Homefield Care Home at the relevant time was Stellamary Georgy.[20]At page 115 there is an email from Ms Georgy, dated 30th October 2018, which states “Please find the attached annual leave from Anita Lodh for 4 weeks”. This email was sent to Rebecca Price, HR manager.[21]I have heard evidence that, in 2018, the Claimant had an informal verbal discussion with her manager about resignation/retirement, and that this was then discussed in a performance review in Aug 2018. There is no note of any discussion surrounding retirement in the notes of that meeting. In her response to the email from Ms Georgy about the Claimant’s annual leave request, Ms Price states “I understand that Anita has verbally said to you that she is resigning in December, is this why she wants to take 4 weeks annual leave?”. I make a finding of fact that a verbal discussion about any intention of the Claimant to resign/retire must have been taken place before this. The Claimant’s evidence is that Ms Georgy’s response to the conversation was that she was a valued member of staff and that she didn’t want to lose her.[22]On 7th November 2018, Ms Georgy sent a further email asking on the Claimant’s behalf for a response to the annual leave request. On 8th November, Ms Price responded that the Respondent cannot approve 4 weeks annual leave but would be able to approve 3 weeks.[23]Ms Georgy forwarded this email to the Claimant on 12th November 2018.[24]On 18th November, the Claimant replied to Ms Georgy’s email, copying in Rebecca Price. In this email she states she wishes to take 3rd-24th December 2018 as annual leave, and that she would then like to take one week unpaid leave from 25th to 31st December 2018. She states “this is because I have booked my ticket which I did explain in a covering letter when sending my annual leave form in.”[25]The only document included in the bundle from the Claimant relating to her initial request for annual leave is the letter dated 30th October. The Claimant’s evidence to the tribunal was that she never filled out a form requesting annual leave, and that she couldn’t remember whether she created or sent a covering letter with the letter dated 30th October. I make a finding of fact that the only document the Claimant gave the respondent related to her initial annual leave request was the letter dated 30th October. This letter made no mention of the Claimant having booked her ticket.[26]It is agreed that in December 2018, the Claimant flew to Trinidad. The Claimant’s unchallenged evidence is that her son booked the flights for her using a computer. There is conflicting evidence as to precisely when the flights were booked. On balance, I accept the Claimant’s evidence that her son booked the flights for her at some point between 12th November 2018 when she was informed that her request for 4 weeks annual leave was refused but 3 weeks would be granted, and when she sent the email of 18th November 2018.[27]On 30th November, in the context of discussing attendance at training sessions, the Claimant informed the Respondent that she was unavailable to work on 3rd Dec, and was travelling abroad on 4th Dec.[28]At the time of the Claimant’s annual leave starting on 3rd December, the Respondent had not responded to the Claimant’s request for one week’s unpaid leave from 25th Dec to 31st Jan. The Claimant had not chased the Respondent for a response.[29]On 4th December the Claimant flew to Trinidad. She gave unchallenged evidence that her children took her to Gatwick airport; her son checked in her luggage; and that he had booked for her “special assistance”, meaning a member of staff who took her in a wheelchair through security, to the gate, up to the door of the plane, and then assisted her to her seat.[30]There is a dispute as to whether the Claimant was provided with any physical documentation to allow her to board the plane. Doing the best I can on the evidence before me: a) I consider, on the balance of probabilities, that there would have been a physical boarding pass allowing the Claimant to go through security and board the plane at Gatwick. b) I consider, on the balance of probabilities, that the person providing special assistance could have been in possession of that boarding pass as part of the assistance provided to the Claimant in that role, up to the point the Claimant had boarded the plane. c) I consider, on the balance of probabilities, after that point the physical boarding pass would have been handed to the C, but that there would have been no requirement for her to use it after that time. d) The Claimant has given evidence that she was not given any physical documentation in respect of her flight. Whilst I do not consider this to be accurate, nor do I find it to be dishonest. I consider she had little involvement in any physical documentation at Gatwick airport as a result of the assistance of her son, and the staff member from “special assistance”, and as a result of this she has forgotten any documentation that was in her possession. I consider that any documentation she did have was not retained by her after the flight, and nor was she aware of any reason at that stage why she would need to retain it.[31]On 14th December, Rebecca Price wrote to the C (page 137), at her home address. In the letter, she set out (my numbering): a) The Claimant’s original request for 4 weeks annual leave dated 30th October; b) The approval of 3 but not 4 weeks leave on 12th Nov; c) The annual leave policy recommending avoiding booking travel/holiday arrangements until a leave request has been approved; d) The Claimant’s email of 18th Nov stating that she had already booked her tickets and that this was mentioned in the letter of 30th October; e) The Respondent’s understanding that the original request made no mention of the flights being pre-booked; f) The Claimant’s request of 18th Nov for 1 week’s unpaid leave from 25th to 31st Dec 2018; g) The Respondent’s policy that there is no entitlement to unpaid leave/holiday but that it might be granted in extraordinary circumstances; h) That the Respondent refuses the Claimant’s request for unpaid leave between 25th-31st Dec as it does not consider there to be extraordinary circumstances.[32]Within the letter, Ms Price requested the Claimant provided, by 4th Jan 2019: a) A copy of her ticket; b) A copy of the confirmation of her booking; and c) A written explanation as to why she has chosen to ignore the Respondent’s annual leave policy.[33]The Claimant gave evidence that whilst she was abroad, her son was at home, and he would put any post for her to one side, but would not open or read it. I make a finding of fact that the Claimant was unaware of the content of that letter until after her return to the UK.[34]There is a dispute as to when the Claimant’s first scheduled shift with the Respondent after her agreed annual leave. The Claimant’s evidence in her witness statement and to the Tribunal was that she had agreed verbally with Ms Matsvai that she would work on 28th, 29th and 30th Dec. She says she did not check the rota before she left, and assumed that the rota would be completed in line with the verbal agreement. I have seen a copy of a rota at page 136A of the bundle, dated 3rd Dec 2018-6th Jan 2019. This lists the Claimant as being on annual leave during the 4 week period Monday 3rd Dec to Sunday 30th Jan, and her first shift following annual leave being on 31st Jan. The Claimant’s ET1 at page 16 states that her next shift (after annual leave) was not due until 31st December 2018. I make a finding of fact that as a result of the Claimant’s discussion with Ms Matsvai, her first scheduled shift after her annual leave started on 3rd December 2018 was 31st December 2018.[35]On 17th December, the Claimant visited a doctor in Trinidad, complaining of chest pain. This was in the context of her having suffered a heart attack in 2012, and ongoing intermittent related symptoms from that time. The doctor wrote a note on 17th Dec stating that the Claimant was unfit to travel for 29 days from that date (until 15th Jan).[36]Following this, the Claimant visited a travel agent in Trinidad to change her flight home. Based on a letter I have been provided with at page 139 I make a finding of fact that the Claimant was originally booked to fly home on 26th Dec and that this was changed on 19th Dec to a flight on 15th Jan. The change was made by a travel agent in Trinidad for a charge of £150. The type of ticket was an eticket.[37]The Claimant returned to the UK on 16th January 2019. She gave evidence that she was not provided with any physical documentation to allow her to board the plane in Trinidad. She gave evidence that the only documentation she had, allowing her to board the plane, was her passport. Again, doing the best I can on the evidence before me, I make the following findings: a) The letter from the travel agent refers to an e-ticket. The Claimant gave unchallenged evidence that the travel agent was able to change her flight with just her passport. She gave unchallenged evidence that the travel agent told her that all she would need to take to the airport was her passport. I consider it possible that an e-ticket could have been recovered digitally by the airline at the airport if the Claimant presented her passport at check in. On the balance of probabilities I find that this is what happened. b) The Claimant had not requested special assistance in Trinidad airport, the airport being much smaller than Gatwick. c) I find that after she checked in the Claimant would have been provided with a physical boarding pass allowing her to clear security and board the plane. I do not consider, on the balance of probabilities, that she would have been able to do so without a physical or digital boarding pass. d) However, I do not consider the Claimant’s evidence that she was not given such document to be dishonest. I consider that she is mistaken, that mistake being made in the context of her age, the fact she was taken ill abroad leaving her unable to return home when planned, and the inevitable stress that would have caused. e) Having boarded the plane I find that the Claimant would have had no particular reason to keep the boarding pass.[38]On her return to the UK, the Claimant was signed unfit to work by her GP from 17th to 21st Jan 2019. Following this the Respondent required the Claimant to attend an occupational health appointment on 4th Feb. At the appointment, the occupational health practitioner found that the Claimant was fit to return to work, but recommended that she work no more than 2 consecutive shifts to ensure sufficient recovery time. The Claimant’s first shift back at work was 16th February.[39]Rebecca Price was challenged as to the need to send the Claimant for an OH assessment when her GP had deemed her fit to work. The decision came in the context of an employee who had suffered a heart attack in 2012, had had intermittent periods of related symptoms since that date, and had recently been deemed medically unfit to fly for 29 days, and unfit to work for a further 6 days. I accept Rebecca Price’s evidence that she believed she was doing the right thing in asking for an assessment from OH before the Claimant returned to work to see if any reasonable adjustments were required.[40]It is agreed evidence that by 18th February, the Claimant had received the Respondent’s letter of 14th Dec and had not responded to it in any way (either by providing evidence to the Respondent, or providing an explanation as to why she could not provide evidence).[41]On 18th February, the Respondent sent a further letter to the Claimant, within that letter was stated:• You made a request for 4 weeks annual leave for the period 3rd to 30th Dec 2018. The request was granted for a period of 3 weeks annual leave;• A concern has arisen about the booking and that you were off work for more than the agreed period;• As part of the investigation we require you to provide the following documents by 25th February 2019: o The original flight booking; o Copies of any documents showing your attempts to change that booking or make a new booking so you would be able to return to work promptly after the 3-week agreed period.• This… is a reasonable request and one that you are fully expected to comply with, within the time frame given.[42]At pages 139 is a copy of a document the Claimant says she asked her sister to obtain from the travel agent confirming the change of booking. The Claimant says she asked her sister to obtain this after she had returned to the UK on 16th Jan. There is a handwriting at the top of the document “21/02/19 sent”. I consider this date to be consistent with the Claimant’s account of her sister obtaining and sending her the document after the Claimant’s return.[43]The Claimant says that she sent a copy of this letter to the Respondent with a covering letter. No covering letter has been included in the bundle. The Respondent states it did not receive the letter prior to the disciplinary hearing. On the balance of probabilities, I accept both accounts; namely that the Claimant did send the document in advance of the hearing, but that the Respondent did not receive it. The Claimant’s evidence is unclear as to the date she sent the letter to the Respondent, and whether that was within the period required by the letter of 18th Feb.[44]Having received no response to her letter of 18th February 2019, Rebecca Price completed an investigation report. It is agreed that her investigation did not include interviewing the Claimant.[45]Within the report, Ms Price set out the chronology of events, and then made a recommendation that the Claimant should attend a formal disciplinary hearing to answer concerns arising from her conduct, on the following grounds: a) That she took 1 weeks unauthorised absence between 3rd and 30th Dec 2018; b) That she failed to respond to a reasonable management request by not providing the requested documents.[46]Ms Price then wrote to the Claimant on 14th March, enclosing the investigation report, and informing her that she was required to attend a disciplinary hearing. Within this letter was listed the allegations which would be considered at the disciplinary hearing: 1) You arranged to take 4 weeks absence between the dates of 03/12/18 to 30/12/18, rather than the 3 weeks authorised 2) You failed to make arrangements so that your absence would be limited to the period agreed and avoid the risk of unauthorised absence (for example, rescheduling your flight) 3) You failed to comply with reasonable management requests to provide documents requested from you on 14 December 2018 and (in the course of the disciplinary investigation) on 18 February 2019 4) That in doing the above you failed to follow Mission Care’s Attendance Policy, Annual Leave Policy Code of Conduct Policy and Disciplinary Policy.[47]The letter of 14th March warned that the possible consequences arising from this hearing may result in a warning or dismissal. It stated that Mrs Lodh would have every opportunity to respond to the concerns and present her case; that she had the right to be accompanied by a colleague or trafe union rep. The letter enclosed the documents the Respondent considered to be relevant along with a disciplinary index, and a copy of the disciplinary policy.[48]The letter wrongly stated that the Claimant’s suspension would continue until the hearing. The Claimant had never been suspended. The error was raised by the Claimant by email on 20th March, and corrected by the Respondent by email on the same day.[49]It was evident from the index to the hearing that the travel agent’s letter the Claimant sent to the Respondent had not been included. The Claimant did not raise this as an issue before the hearing.[50]The Claimant and her witness’s unchallenged evidence was that the Claimant requested details of the flight booking from her son, and that he refused to provide it. Following this, the Claimant’s son has moved out and is currently not speaking to his mother or sister. I accept the evidence of the Claimant and her daughter on this.[51]The disciplinary hearing took place on 2nd April 2019. It was chaired by Sakshi Wahi, who had equal decision making power with a panel member who was also present during the hearing. Rebecca Price presented the “management case”, the Senior HR officer acted as note taker, and the Claimant was accompanied by her trade union representative; the Regional Officer of the Royal College of Nursing.[52]The notes taken at the disciplinary hearing are included at pages 175-179 of the bundle. The notes are summary rather than verbatim. The Claimant was not given an opportunity to check the accuracy of the notes following the hearing. The accuracy of the notes was challenged in the course of the hearing. In the course of her evidence, the Claimant intimated that she could not remember precisely what was said in the course of the hearing, it being now nearly 4 years ago. In the absence of any positive evidence to the contrary, I accept the summary note of the hearing as being an accurate reflection of the issues raised on both sides.[53]In the course of the disciplinary hearing: a) Ms Price presented the management case; b) Following this, the Claimant asked no questions of Ms Price; c) The Claimant then gave an account of her request for and taking of leave in December 2018.[54]In her account, the Claimant stated: a) That her children had bought the tickets for her holiday. b) That she had never at any point in the course of travelling to Trinidad or back home, been given any physical document relating to travel, by anyone. c) That the only document she had in her possession in the course of travel had been her passport. d) That before she became ill, her plan had been to return to the UK on 26th Dec 2018. e) That she had wanted to use the rest of the 4th week of leave requested to rest after the flight. f) That she knew now that the Respondent’s AL policy said that staff should avoid booking any tickets prior to annual leave being authorised, but that it had been a “conspiracy” between her children.[55]In the course of the hearing, Ms Wahi asked the Claimant questions challenging the veracity of the Claimant’s account. At no point did Ms Wahi specifically say that she was concerned that the Claimant was not being honest. The Claimant was challenged on her accounts: a) That a return flight booked for 26th December was after the agreed annual leave period which ended on 24th December; b) That she had had no documentation in order to board the flights; c) That she had no documentation to change her flight home after becoming ill; and d) That her children were the only ones with access to the booking and tickets and that they refused to provide the information.[56]The Claimant responded to those challenges and was given an opportunity at the end of the hearing to make any further representations.[57]Following the hearing, on 3rd April, the Respondent made further requests for documentation: a) The original flight booking; b) Confirmation of the £150 amendment charge mentioned in the travel agent’s letter for changing her return flight.[58]On 11th April, the Claimant’s union representative responded on her behalf stating that she would not be able to provide a copy of the flight booking because her children bought the flight as a Christmas present and they do not want her to know the cost of it so won’t show her the ticket; and they won’t be a party to the way the R is treating their mother.[59]Ms Price responded stating that the Claimant’s children could send the ticket directly to her which would keep the price confidential. There is no evidence of any response from the Claimant to this suggestion before me.[60]On 7th May 2019, the Respondent wrote to the Claimant with the outcome of the disciplinary hearing. In the letter, the Respondent states that it relies upon the following (the numbering is mine): a) That prior to the investigation by Ms Price, the Claimant was asked to help by providing certain documents, and did not do so; b) That the Respondent accepted that there had been no unauthorised absence; c) That the Claimant’s original request was for 4 weeks leave; d) That when 3 weeks leave was authorised, the Claimant made a request for an additional week of unpaid leave; e) That the Claimant’s booked flight home fell outside the agreed 3 weeks annual leave; f) That the Claimant did not provide any requested documents relating to the booking of her flight; g) That the Claimant did not provide documents showing the veracity of the document detailing the change of the flight; h) That in the Claimant’s initial request she was not transparent that the flights had already been booked; i) That in the request for unpaid leave the Claimant said that she (not children) had already booked flight ticket; j) That the Claimant did not mention to the Respondent before leaving that her return flight was outside of the agreed 3 weeks annual leave; k) That before she fell ill, the Claimant did nothing to change her return flight to fall within the agreed 3 weeks annual leave; l) That the Claimant therefore arranged to be away for more than 3 weeks, and made those arrangements prior to approval of annual leave; m) That the requests for documentation were reasonable requests; n) That the explanation for being unable to provide the original booking (namely her children refusing to provide it) was not plausible; o) That the explanation for not having any documentation used in the course of the flight (namely that she had never been given any) was not plausible; p) The Claimant had not been honest in the account she had given the panel; q) That the reason the Claimant had not been honest was because she wanted to conceal something from the Respondent; r) That the Claimant’s decision to withhold documents requested constituted gross misconduct.[61]On these bases, the Respondent found allegations 1 to 3 proved.[62]The Respondent stated within the letter that it went on to consider the appropriate sanction. a) In respect of allegations 1 and 2, the Respondent stated it considered these to be serious but not meritorious of dismissal; b) In respect of allegation 3 the Respondent stated it considered allegation 3 to be particularly serious because it considered the Claimant’s reason for failing to provide documentation was to conceal dishonesty. c) The Respondent considered the appropriate sanction for the dishonest concealing of dishonesty to be dismissal without notice.[63]The Claimant was given the right of appeal under the Respondent’s disciplinary procedure. The Claimant did not exercise that right.[64]It was agreed that the Claimant was dismissed without notice on 7th May 2019. Law Unfair dismissal, misconductLaw
[65]Section 98 of the Employment Rights Act 1996 provides that in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for the dismissal and that it is one of the potentially fair reasons set out in s.98(1) and (2).[66]If the employer is successful at the first stage, the tribunal must then determine whether the dismissal was fair or unfair under s.98(4), which provides that the determination of the question of whether a dismissal is fair or unfair depends upon whether in the circumstances (including the respondent’s size and administrative resources) the respondent acted reasonably or unreasonably in treating misconduct as a sufficient reason for dismissing him. This should be determined in accordance with equity and the substantial merits of the case.[67]The case of British Home Stores v. Burchell [1980] ICR 303 EAT three-fold test applies to the consideration of whether the respondent acted reasonably or unreasonably in treating misconduct as a sufficient reason for dismissing him. The employer must show that: a) it believed the employee guilty of misconduct; b) it had in mind reasonable grounds upon which to sustain that belief; and c) at the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.[68]In the course of her submissions, Ms Kaye invited my attention to the case of Robinson v Combat Stress EAT 0310/14, in which the EAT found that where a tribunal is considering multiple complaints which together formed the employer’s reason for dismissal, the tribunal should consider not what it would have been reasonable and fair for an employer to have thought, but what the employer actually thought and whether, having regard to the totality of its reasons, dismissal was reasonable. I do not consider this case particularly relevant to my decision as the Respondent’s evidence (which I have accepted) was that it was only allegation 3 which provided the basis for its decision to dismiss.[69]In considering whether the dismissal was a fair sanction, the Tribunal must consider whether dismissal was within the range of reasonable responses open to a reasonable employer when faced with those facts. In assessing this, the Tribunal must not substitute its own views for those of the employer.[70]The Tribunal must also consider whether the employer adopted a fair procedure. Wrongful dismissal[71]Following the decision in Enable Care and Home Support Ltd v Pearson EAT 0336/09, in a claim wrongful dismissal (unlike unfair dismissal), the Tribunal is concerned not with the reasonableness of the employer’s decision to dismiss, but with the factual question was the employee guilty of conduct so serious as to warrant summary dismissal. Conclusions Unfair dismissal What was the reason for the Claimant’s dismissal?Conclusions
[72]I find that the reason for the Claimant’s dismissal was conduct. I do not find, on the balance of probabilities, that the discussions surrounding Claimant’s possible resignation or retirement had any influence or bearing on the mind of the Respondent’s disciplinary panel in reaching its decision. I find that the decision-making panel of the Respondent was independent of any such discussion, albeit it would have seen reference to the issue in an email chain. Did the Respondent hold a genuine belief in the Claimant’s misconduct, based on reasonable grounds?[73]I find that the Respondent did hold a genuine belief in the Claimant’s misconduct, based on reasonable grounds. The Respondent’s thought process is clearly set out in the disciplinary outcome letter. Working backwards, the 3 areas of misconduct the Respondent believed the Claimant to be guilty of were: a) That the Claimant arranged to take 4 weeks absence when only 3 had been agreed; b) That the Claimant failed to make arrangements so that her absence would be limited to 3 weeks; c) That the Claimant failed to comply with reasonable management request, and did so in order to cover up dishonesty.[74]The reasons for that were clearly set out. In respect of allegations 1 and 2, the Respondent considered that the Claimant’s flights had been booked before she applied for annual leave. I find this was a reasonable conclusion given that: a) In her original request, the Claimant makes no mention of booked flights/tickets; b) In her email of 18th Nov, the Claimant states (albeit incorrectly) that her first written request for annual leave had stated that her ticket had already been booked; c) In the disciplinary hearing the Claimant referred to a “conspiracy” between her children in reference to the policy saying flights shouldn’t be booked before annual leave; and d) The Respondent had requested details of the original booking to see when it was made and had not been provided with it.[75]In respect of allegation 3, the Respondent considered that the Claimant’s explanations as to why she could provide no documentation of the booking of her flights were implausible: a) The evidence the Respondent was considering of the Claimant’s booking of the tickets was inconsistent: 1. There was no mention of the booking of tickets in the first request for annual leave; 2. In the second request, reference was made to the Claimant booking the tickets, and having already done so; and 3. In the hearing the Claimant stated her children had booked the tickets in a “conspiracy”. b) The Respondent was told that at no time did the Claimant ever have any physical documentation to board her flights. The Respondent was entitled to draw on its own experience in relation to flights and whether a person would be able to do so with only a passport. I consider it reasonable that the Respondent did not find it to be plausible that a person could board an international flight with only a passport. c) The Respondent was told that the Claimant was now not able to get hold of the booking information because her children refused to provide it. The Respondent considered this implausible, on the basis that it considered the Claimant’s children would want to help their mother. I consider this was not an unreasonable conclusion for the Respondent to draw.[76]I therefore consider the Respondent’s conclusions that the Claimant’s accounts were inconsistent and implausible to be reasonable.[77]Having drawn those conclusions I find it reasonable for the Respondent to further have concluded that the reason the Claimant failed to provide the documentation was that she wanted to conceal dishonesty. Did the Respondent’s belief follow such reasonable investigation as was warranted in the circumstances?[78]Considering the investigation as a whole, I find that it was reasonable in the circumstances of this case. Addressing the specific criticisms raised by the Claimant: a) The Respondent did not interview the Claimant before concluding its investigation. However, it had written to her on two occasions and had received no response. That is, it did not receive the documents requested, nor an explanation as to why the documents could not be provided. I find that it was reasonable for the Respondent to conclude on that basis that the Claimant was not engaging with the process and to conclude its investigation without interviewing her. b) The rota was missing from the disciplinary bundle, however the Claimant did not request that it be included. In any event, as the rota wrongly showed that the Claimant was on annual leave in the final week of December, its inclusion would not have assisted her. c) Whilst a specific allegation of dishonesty was not discussed in the disciplinary hearing, the Claimant was asked questions which clearly tested the veracity of her account. d) Neither Ms Matsvai nor Ms Georgy was interviewed as part of the investigation. But neither did the Claimant mention them or any discussions held with them in the course of the disciplinary hearing. The Claimant was given the opportunity to ask for witnesses to be called and did not ask for any. e) In the course of the disciplinary hearing, the Claimant was given an opportunity to respond to questions and given a further opportunity to provide evidence after the hearing. f) Whilst it was not ideal to have Ms Price conduct the investigation when she was the person who had determined the Claimant’s requests for annual leave and unpaid leave, I do not consider any particular unfairness turned on this point. Was the decision to dismiss a fair sanction?[79]I find that it was. The overall finding of the Respondent (which I have found to have been reasonable in all the circumstances) was that the Claimant failed to comply with management direction in order to cover up dishonesty. Dishonesty is specifically listed in the disciplinary policy as behaviour which may be considered to be gross misconduct, as indeed it would be by most employers. I therefore consider dismissal was within the range of reasonable responses. Did the Respondent adopt a fair procedure?[80]I find that it did. The procedure was not perfect, but on balance I consider that it was fair. The Claimant was given notice of the Respondent’s allegations before the hearing, allowed to be accompanied to the hearing, given an opportunity to present a response to the Respondent’s allegations in the hearing, was given a further opportunity after the hearing to provide documents in support of her case, and was allowed a right of appeal. Addressing the specific criticisms raised by the Claimant: a) Whilst the conclusions of dishonesty weren’t specifically put to the Claimant, it was clear from the challenges to her account in the course of the disciplinary hearing that this was what was being considered, and she was given an opportunity both to answer the questions, and make any further representations at the end of the hearing; b) Counsel for the Claimant argued that Claimant was dismissed for a different reason than the one given in the dismissal letter – for the reasons given I do not consider this to be the case;[81]The Claimant’s claim for unfair dismissal therefore fails. Wrongful dismissal[82]It is agreed that the Claimant was summarily dismissed and that she was not paid the 12 weeks’ notice due to her.[83]The question I need to decide is whether the Claimant was guilty of gross misconduct or did she do something so serious that the Respondent was entitled to dismiss without notice?[84]On the balance of probabilities, I find that she was not.[85]I find that by arranging a flight home on 26th Dec, the Claimant did arrange to take annual leave longer than that allowed by the R, namely until 24th Dec. However, the Respondent’s view, and mine, is that this was not so serious as to constitute gross misconduct. Whilst she might theoretically have been required to work, the Claimant did not miss any rostered shifts as a result of her travel arrangements. In light of the Claimant’s 15 years service, unblemished disciplinary record, I do not consider this to have constituted gross misconduct.[86]The issue really is whether she failed to comply with a management instruction to provide documentation in relation to this, and if so, why. The date of the Claimant’s flight to Trinidad was not in dispute. The Claimant provided evidence, which I have accepted as to the original date of return, in the form of the travel agent’s letter. The Claimant has given evidence, which I accept, that she has requested further details from her son and he has refused.[87]Whilst I have found that the Respondent’s conclusion that the Claimant was being dishonest was reasonable, I do not draw the same conclusion. I do not consider that the Claimant was attempting to cover up dishonesty in failing to provide documents; I consider she believed she was unable to do so. The Claimant did not believe she had ever been in possession of flight documents. I consider the Claimant did all that she could think of to obtain the booking information, namely asking her sister to obtain information from the travel agent in Trinidad, and asking her son for the original booking information.[88]I consider that the Claimant believed that in returning on 26th December, she would be in time for her next shift. I find that the Claimant thought that she had not done anything wrong in relation to the flight home, and therefore do not consider that there was anything she thought she needed to cover up.[89]When considering the Claimant’s actions, in the light of her 15 years service and unblemished disciplinary record, I do not find, balance of probabilities, that her conduct was such to entitle the Respondent to dismiss without notice.[90]I therefore find that the Claimant was wrongfully dismissed.