O Babajeva v Gabokun Dental Care Ltd T/a East Dulwich Dental Care: 2305139/2023
EMPLOYMENT TRIBUNALS
Case No 2305139/2023
Between
O BabajevaClaimantGabokun Dental Care Ltd T/a East Dulwich Dental CareRespondent
Before
Employment Judge O’NeillDate 13 July 2024
JUDGMENT
[1]The claimant’s claim for a redundancy payment is dismissed on withdrawal.[2]The claimant’s claim of unfair dismissal is well founded and succeeds.a. The claimant is awarded compensation of £8,945.13, this figure comprises: i. a basic award of £1,944; ii. a compensatory award of £7,001.13.b. The total award is less than the statutory tax free amount and is therefore not subject to tax.[3]The Employment Protection (Recoupment of Jobseeker’s Allowance & Income Support) Regulations 1996 apply:a. The total monetary award made to the Claimant is £8,945.13.b. The prescribed element is £4,700.69.c. The dates of the period to which the prescribed element is attributable are 9 May 2023 to 4 June 2024.d. The difference between (a) and (b) is £4,244.31. Page 1 of 28
REASONS
[4]These written reasons are provided at the request of the respondent following oral reasons.[5]The respondent is a dental practice. The claimant was employed by the respondent as a receptionist from 4 March 2019.[6]The claimant brought a case of unfair dismissal against the respondent and claimed for loss of earnings, unpaid holiday pay and statutory redundancy.[7]The respondent denied that the claimant was dismissed, but instead claimed that the claimant had absented herself from work without permission. PROCEDURE AND EVIDENCE[8]The matter was listed for a final hearing over two days and was heard on 29 and 30 April 2024. Hearing on 29 & 30 April 2024[9]I was provided with a 132 page bundle and permitted the inclusion of additional material in the form of WhatsApp chat transcripts that had been sent to the respondent’s representative in time, but had not been included in the bundle.[10]I heard evidence from the claimant, and the respondent’s witnesses, Dr Ighodaro and Ms Olte.[11]It was confirmed that the claim in the ET1 for a redundancy payment was in error and the claimant’s representative confirmed that it was not being pleaded and was withdrawn.[12]Having heard the evidence and submissions I gave oral judgement at 12.00 on 30 April, concluding at 12.30. The hearing was adjourned until 2.00pm when the matter of remedy was to be discussed.[13]While the hearing was adjourned, I reflected again on my judgment and concluded that I had made a finding that meant that the claimant had submitted her claim out of time.[14]To determine the issue of unfair dismissal, I was required to make a finding of fact as to whether there had been a dismissal and if so, the date of that dismissal. I had made a finding that the claimant was summarily dismissed on 9 May 2023. So her effective date of termination (EDT) was 9 May 2023. This had the effect of making Page 2 of 28 her claim ‘out of time’ as the EDT was more than three months prior to the date her ET1 was submitted, even considering the period of ACAS conciliation.[15]As the issue of jurisdiction was fundamental, I determined that the most equitable and expedient course of action would be to reconsider my judgment under Rule 70 of the Employment Tribunals Rules of Procedure. “On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.”[16]I reconsidered my original decision and concluded that as the issue of jurisdiction had not arisen until I had determined the EDT. As it had not been properly argued by the parties, I concluded that I did not have enough evidence to either confirm or vary the judgment in order to determine jurisdiction.[17]I therefore determined, having regard to the overriding objective of the Employment Tribunal to revoke my ‘original decision’ that was delivered orally on 30 April 2024, pending further information from the parties.[18]I informed the parties of my decision to reconsider and revoke at 2.30pm on 30 April 2024. The parties were informed that the final hearing would be adjourned and that a preliminary hearing would be held to determine the issue of jurisdiction.[19]The issues in respect of the reason for dismissal and the potential fairness of it had already been heard and would not be re-heard again. The the purpose of the relisted hearing would be only to determine whether the Employment Tribunal had jurisdiction to hear the case and to determine remedy if appropriate. Hearing on 4 June 2024[20]Neither the claimant nor the respondent appeared but both were represented. I heard submissions from both representatives on the issues of(i) the time extension(ii) and remedy.[21]Oral judgment was provided and the respondent’s representative requested written reasons. ISSUES TO BE DETERMINED JURISDICTION
ISSUES TO BE DETERMINED
[22]What was the date of the dismissal?[23]Was the dismissal made within the time limit in section 111 ERA?[24]Was the claim made to the Tribunal within three months (plus early conciliation extension) of the EDT? Page 3 of 28[25]If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?[26]If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? UNFAIR DISMISSAL[27]Was the claimant an employee of the respondent within the meaning of section 230 of the Employment Rights Act 1996?[28]Was the claimant actually dismissed?a. Is the handbook contractual?b. Does it give the right to appeal that decision?c. Was she reinstated on appeal?[29]What was the effective date of termination? 9 May or a later date?[30]If the claimant was dismissed, what was the reason or principal reason for dismissal?[31]Was it a potentially fair reason? The respondent claims the reason was the claimant’s conduct of bullying her colleagues and attitude to customers, so the Tribunal has to decide:a. whether the respondent genuinely believed the claimant had committed misconduct;b. if the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant;c. whether there were reasonable grounds for that belief;d. whether at the time the belief was formed the respondent had carried out a reasonable investigation;e. if the respondent otherwise acted in a procedurally fair manner; andf. whether dismissal was within the range of reasonable responses. REMEDY FOR UNFAIR DISMISSAL[32]What basic award is payable to the claimant, if any?[33]If there is a compensatory award, how much should it be? The Tribunal to decide:a. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Did the respondent or the claimant unreasonably fail to comply with it by their conduct? If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%? Page 4 of 28b. If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?c. The matters not agreed between the parties, being: i. Holiday pay ii. Loss of statutory rights iii. Loss of pension rights iv. Unpaid/missing pensions contributions during employment v. Injury to feelings RELEVANT LAW (A) JURISDICTION Effective date of termination
RELEVANT LAW
[34]The “effective date of termination” (EDT) isa. in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,b. in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect. (s97(1) ERA) Time limits[35]A complaint to the Tribunal for unfair dismissal must be made within three months of the EDT or such longer period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months (s111(2)(b) ERA96).[36]S.111(2) ERA96 says; Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Page 5 of 28[37]A tribunal may only extend time for presenting a claim where it is satisfied of the following:a. it was "not reasonably practicable" for the claimant to present that claim in time; andb. the claim was nevertheless presented "within such further period as the tribunal considers reasonable". (B) UNFAIR DISMISSAL[38]An employee has the right not to be unfairly dismissed (s94 ERA96).[39]The tribunal has to be satisfied that on the balance of probabilities the claimant has been dismissed. The burden of proof lies with the claimant to establish that they have been dismissed.[40]The claimant must show that they were was dismissed by the respondent in one of the circumstances listed in s95(1) ERA96:a. the contract under which he is employed is terminated by the employer (whether with or without notice),b. he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, orc. 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.[41]If the contract permits an appeal from dismissal, and the sanction of dismissal is reduced on appeal, the effect of the decision on appeal is to revive the contract of employment to treat the employee as if he or she had never been dismissed for the purposes of an unfair dismissal claim, ie a ‘vanishing dismissal’ (Roberts v West Coast Trains Ltd 2005 ICR 254, CA).[42]A ‘vanishing dismissal’ following an appeal must happen by virtue of the operation of the provisions of the contract (Saminaden v Barnet Enfield and Haringey NHS Trust UKEAT/0018/08) Reason for the dismissal[43]If the claimant has shown that they were dismissed, then is for the respondent to show:a. the reason, or principal reason, for dismissing the claimant (s. 98(1) ERA); andb. that it is a ‘potentially fair’ reason. (s98)(2) ERA96.[44]The ‘reason’ for dismissal is the factor operating on the decision-maker’s mind which causes him/her to take the dismissal decision (Croydon Health Services NHS Trust v Beatt [2017] ICR 1420). Page 6 of 28 Was that reason ‘potentially’ fair - S98(2) ERA96[45]There are a limited number of fair reasons for dismissal. The respondent needs to establish that the reason for the claimant’s dismissal falls into one of these categories:a. it relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do (s98(2)(a); i. capability: means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality (s98(3)(a)), and ii. qualifications: means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held (s98(3)(b));b. it relates to the conduct of the employee (s98(2)(b);c. the employee is redundant (s98(2)(c));d. the employee could not continue to work in the position which (s)he held without contravention of the law (s98(2)(d)); ore. some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (s98(1)(b))[46]In order to be ‘substantial’ the reason for dismissal must not be whimsical or capricious (Harper v National Coal Board [1980] IRLR 260) and, if, on the face of it, the reason could justify the dismissal then it will pass as a substantial reason (Kent County Council v Gilham [1985] IRLR 18).[47]“The hurdle over which the employer has to jump at this stage of an inquiry into an unfair dismissal complaint is designed to deter employers from dismissing employees for some trivial or unworthy reason. If he does so, the dismissal is deemed unfair without the need to look further into its merits. But if on the face of it the reason could justify the dismissal, then it passes as a substantial reason, and the inquiry moves on to [S.98(4)], and the question of reasonableness” (Gilham and ors v Kent County Council (No.2) 1985 ICR 233). Was the dismissal fair – s98(4) ERA96[48]If a potentially fair reason is shown by the employer, then the tribunal will need to decide whether the dismissal is fair.[49]S98(4) ERA96 says that whether the dismissal was fair or unfair (having regard to the reason shown by the employer)— Page 7 of 28a. “depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, andb. shall be determined in accordance with equity and the substantial merits of the case”[50]The concept of fairness is often broken down to substantive and procedural fairness. Substantive fairness[51]Did the employer act reasonably in treating the reason as a sufficient reason for dismissal?[52]The test in s98(4) as to whether the employer acted reasonably is an objective one. The tribunal must not consider at what they would have done in the employer’s position, but should decide whether the dismissal of the claimant lay within the range of conduct or reasonable responses that a reasonable employer could have adopted (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT, Foley v Post Office; Midland Bank plc v Madden [2000] IRLR 82;).[53]If the dismissal was for misconduct, then in addition to the considering whether the dismissal was within the range of the reasonable responses, the dismissal will only be fair if, at the time of dismissala. the employer believed the employee to be guilty of misconduct;b. the employer had reasonable grounds for believing that the employee was guilty of that misconduct; andc. at the time it held that belief, it had carried out as much investigation as was reasonable. (British Home Stores v Burchell [1978] IRLR 379 EAT). Procedural fairness[54]The range of reasonable responses test applies to the procedures adopted by the employer as well as the dismissal itself (Sainsburys Supermarket Ltd v Hitt [2003] IRLR 23 CA).[55]The employee should know the case against them (Byrne v BOC Ltd [1992] IRLR 505). The ACAS Code suggests that before dismissing an employee for misconduct, an employer should:a. Investigate the issues. Page 8 of 28b. Inform the employee of the issues in writing.c. Conduct a disciplinary hearing or meeting with the employee.d. Inform the employee of the decision in writing.e. Give the employee a right of appeal.[56]“It will almost inevitably be the case that in any alleged unfair dismissal a Claimant will be able to identify a flaw, small or large, in the employer's process. It will be and is for the Tribunal to evaluate whether that is so significant as to amount to unfairness any prospect of there having been a dismissal in any event being a matter for compensation and not going to the fairness of the dismissal itself.” (Sharkey v Lloyds Bank Plc UKEAT/0005/15/SM) (C) REMEDY Basic award[57]The basic award is a mathematical formula determined by s.119 ERA. Compensatory Award[58]The compensatory award is defined as such amount as is “just and equitable in all the circumstances, having regard to the loss sustained by the complainant inconsequence of the dismissal insofar as that loss is attributable to action taken by the employer.” (s123(1) ERA)[59]Tribunals may also award a nominal amount by way of compensation for the loss of statutory rights as part of the compensatory award (Dugdale v Cartlidge UKEAT/0508/06).[60]Any loss of pensions benefit where the claimant’s scheme was a defined contribution scheme will be the value of the contributions that, but for the dismissal, the respondent would have made to the claimant's pension scheme during the identified period of loss. Adjustments[61]A reduction may be made to the compensatory award made to an employee in a successful claim for unfair dismissal to reflect the likelihood that there would have been a fair dismissal in any event Polkey v AE Dayton Services Ltd [1988] ICR 142, HL.[62]Deductions and adjustments (if applicable) should then be made in the following order: Page 9 of 28a. deduction of any payment already made by the employer as compensation for the dismissal – to include payment in lieu of notice but not any enhanced redundancy payment;b. deduction of sums earned by way of mitigation, or to reflect the employee’s failure to take reasonable steps in mitigation;c. ‘just and equitable’ reductions, including reductions in accordance with the principle in Polkey v AE Dayton Services Ltd;d. increase or reduction of up to 25 per cent where the employer or employee failed to comply with a material provision of the ACAS Code of Practice;e. adjustment of up to four weeks’ pay in respect of the employer’s failure to provide full and accurate written particulars;f. percentage reduction for the employee’s contributory fault;g. deduction of any enhanced redundancy payment to the extent that it exceeds the basic award;h. grossing up the figure to allow for the incidence of tax; andi. application of the statutory cap if applicable. FACTS Events Prior to Dismissal
FACTS
[63]The claimant commenced her employment with the respondent in March 2019. She worked as a dental practice receptionist.[64]She said that enjoyed her job and there were no issues. Dr Ighodaro said in his witness evidence that he had observed that she had “a very serious attitude” but that he was determined to provide her with an opportunity to establish herself. However, Dr Ighodaro could not provide any such incidents or examples to support his recollections, so I find that it is more likely than not that there were no performance issues with the claimant in the early years of her employment.[65]In September 2022 a new dentist joined the practice and was given business management responsibilities. It appears that this dentist and the claimant did not work well together, but managed to co-exist. Then in January 2023, Ms Olte was appointed as practice manager. This was a new role for the organisation. March 2023 onwards Page 10 of 28[66]The claimant had initially had a good relationship with her co-receptionist colleague Ana. There was evidence to show friendly texts messages and support being offered by the claimant in respect of Ana’s difficult personal circumstances. However the relationship between them grew increasingly tense as the claimant perceived that her colleague was not being held to the same standards as other employees in terms of timekeeping and absences.[67]There is contemporaneous evidence of an email 6 April 2023 from Ana to Dr Ighodaro saying she was being bullied and harassed by claimant, and I have no reason to doubt that evidence.[68]Dr Ighodaro asked for another dentist, Dr Samadi, to investigate the matter.[69]The claimant confirmed in evidence that she had attended a meeting with Dr Samadi regarding the investigation and that this took place soon after the complaint from Ana. She said that Dr Samadi told her that he wanted to hear both sides of the story before coming to a conclusion.[70]The respondent did not call Dr Samadi as a witness, although I understand that Dr Samadi still works for the respondent. Nor did the respondent provide any written evidence of the investigation or of Dr Samedi’s conclusions.[71]Ms Olte said in evidence that Dr Samadi did not make a note of the investigation and that she did not speak to him about the outcome of the investigation. She said that she only spoke to Dr Ighodaro about it.[72]Ms Olte confirmed that her understanding (from Dr Ighodaro) was that Dr Samadi’s conclusion of that investigation was "that if both Ana and Ms Babajeva "could not find common ground” and find a way to work together or they should both be terminated”.[73]Dr Ighodaro also confirmed that Dr Samadi’s recommendation was both Ana and the claimant should be terminated if there was no improvement to their working relationship.[74]At some point in late April 2023 a meeting took place between the claimant and Dr Ighodaro.a. The claimant confirmed that she had an informal meeting with Dr Ighodaro, where she was told to “be careful, because Ana was young and they were uncertain what to expect from her”.b. Dr Ighodaro said in his witness statement that he spoke with the claimant about her future conduct within the practice. Page 11 of 28c. There was no formal invitation to this meeting, no meeting minutes were taken and the claimant was not informed that this meeting was a disciplinary or a formal warning.[75]Ana resigned with immediate effect on Friday 5 May.[76]As the investigating dentist recommended terminating both parties if they did not find a way to work together, the claimant could not have been 100% at fault in terms of her conduct..[77]I find that for these reasons there was no evidence that the claimant had actually bullied Ana, but simply that the two colleagues did not get along and that there was a clash of personalities. Dismissal[78]During witness evidence Ms Olte confirmed that it was her decision to dismiss the claimant. However Dr Ighodaro’s witness statement indicated that he had a role in the decision. However I find that Ms Olte’s witness evidence had more detail and internal consistency regarding the decision to terminate and that as practice manager she would have been the diver of the decision and had the final say.[79]It is not disputed that Ms Olte handed the claimant a dismissal letter from the respondent on the morning of Tuesday 9 May 2023, when the claimant returned to work after the bank holiday break. This letter terminated her employment with immediate effect, but agreed to provide one month’s pay in lieu of notice.[80]The letter confirmed that the reason for the dismissal was the claimant’s conduct. In particular the letter said that “it’s been alleged that on several occasions of you bullying your colleagues over one issue or another. Bullying can never be tolerated in the … practice, shouting and asking your colleague to shut up and leave the practice is totally wrong”.[81]Ms Olte was asked why she went ahead with the dismissal of the claimant, even though Ana had left. Ms Olte said that “Had it just been an Ana issue, then I might have reconsidered, but it was more than that”.a. Apart from the issue with Ana, Ms Olte could not provide anything but highlevel, non-specific examples of issues with patients and staff. There was no written or oral evidence of any specific patient or staff complaints.b. Ms Olte said she didn’t like the way reception was run but could offer no evidence to support this. Ms Olte alluded to a history of poor behaviour but there was no evidence of this and Ms Olte had only worked with the claimant for just under four months. Page 12 of 28c. I found Ms Olte’s evidence in respect of her reasons for dismissing the claimant difficult to follow and not wholly convincing.d. Neither of the witnesses could recall any specific instances of the claimant’s conduct and how those concerns were dealt with.[82]The claimant and Dr Ighodaro had a meeting in the afternoon of 9 May, to which Ms Olte was also invited.[83]Dr Ighodaro and Ms Olte gave evidence that during that meeting, they believed that the claimant said she was suffering from an undisclosed medical issue. Therefore Dr Ighodaro said he revoked the dismissal, subject to the provision of a medical report from her GP or provide the practice with a authority to contact her GP about her medical history and prognosis.[84]Dr Ighodaro said that the claimant agreed with them that she had “changed a lot”. He said that he understood that she had been diagnosed recently and her GP had put her on meds that helped a lot. He recalled that he told her that he needed to know a little more about the medications and diagnosis. He said that this was important, as a clinical director, he was particularly interested in how the patients are treated, not just the staff. He wanted his staff to have the patients’ interests at heart and that is why he needed to know about the staff’s ability to perform their jobs properly.[85]The claimant explained in her evidence that during the meeting she became confused about the status of her employment and what Dr Ighodaro expected of her. She was under the impression that Dr Ighodaro had disregarded the dismissal letter and suggested that she seek psychological support and obtain a fit note to return to work and she would be reinstated in her job. She thought that she was not allowed to return to work because of their medical concerns about her. She said in evidence that she did not tell Dr Ighodaro that she had a medical condition, just that she was stressed because of family issues.[86]It was clear from witness evidence during the hearing that both parties had an entirely different recall of events. I find that the evidence from all the parties was credible on this point and that there was a genuine misunderstanding between Dr Ighodaro and the claimant.[87]I find that this miscommunication was understandable given:a. On the claimant’s part - her anxiety on the day in response to her dismissal; the lack of clarity about the purpose of the meeting in the afternoon with Dr Ighodaro; her belief that in her opinion Dr Ighodaro was a good man; and that there had been no prior formal disciplinary process about her conduct; and Page 13 of 28b. On Dr Ighodaro’s part – he seemed in witness evidence that he was unclear exactly why she had been dismissed at the time, what the purpose of the afternoon meeting was and how it was concluded. Following dismissal[88]The respondent did not follow-up or confirm in writing what had happened during the afternoon meeting. There was no written confirmation that her dismissal had been revoked and that the revocation was conditional on the claimant providing medical evidence or authority for the respondent to contact her GP for further information.[89]On 17 May 2023 the claimant sent an email to Dr Ighodaro where she noted thata. she believed she had been dismissed without any due process, formality or resolution;b. the only suggestion made before her departure was to “consult my GP regarding my mental health and the possibility of reinstatement. Therefore I am still uncertain about current employment status”;c. after consulting her GP she was told that it was the responsibility of the employer to refer her to an occupational health service if there are any health-related concerns or inquiries that need clarification; andd. the dismissal had made her so anxious that she had self-referred and been recommended therapy.[90]She asked Dr Ighodaro if the respondent woulda. cover her absence and the therapy sessions she had been recommended but there was a two-week referral delay;b. if the respondent would be willing to refer her to an occupation health service if that would be quicker; andc. confirm her employment status.[91]The next day, 18 May 2023, Dr Ighodaro responded. He started the email by saying that “our” decision to terminate her employment was reached due to several incidents involving your behaviour.[92]He said that they had concerns about her behaviour and that they had “numerous complaints about her rude and irrational behaviour towards both your colleagues and patients”. He said that the practice strongly believed in fostering a positive and supportive work environment where every individual feel appreciated but that “your Page 14 of 28 consistent disregard for these principles had left us with no choice but to terminate your employment”.[93]He addressed the medical issue at that point. He said that the claimant had “only informed him of health issues as mitigating factors which were not to my knowledge before now. You said that you were receiving treatment from your doctor. On the basis of this new information, I then asked you to get a full medical report from your doctor and your current medications. It’s your responsibility to provide that information to the practice. We will of course review your current position when we get that report and may decide to place you on probation monthly assessment period of 3-6 months with the hope that there will be changes in your behaviour that will meet our professional expectations” the email concluded with “until we receive your doctor report our position remains unchanged.”[94]Dr Ighodaro said in evidence that they were planning “full reinstatement” but that the claimant disregarded everything. On balance I find that it is unlikely that the respondent was intending to fully reinstate the claimant.[95]On 19 July 2023 the claimant emailed the respondent wanting to know whether she still had a job and whether she could return to work. In that email she said “Before my dismissal, I expressed concerns regarding my family, specifically regarding my mother’s health. She has undergone two joint replacement surgeries and now requires full-time assistance as she is no longer able to walk. On the day of my dismissal, I mentioned that these family issues were causing significant stress and anxiety, but I assured you that apart from these concerns, I did not have any other health issues”[96]On 14 August 2023, the claimant emailed the respondent and requested her P45. Contract & handbook[97]It was not disputed that there was a ‘pay in lieu of notice’ (PILON) clause in the contract and that the handbook formed part of the terms and conditions of the employment contract.[98]The Employee Handbook saysa. The Practice views … bullying… as gross misconduct.b. The level of the disciplinary sanction, if any, will be determined by the severity of the offence. The Practice will normally select one of the following: i. Verbal Warning Page 15 of 28 The Practice will advise you that your conduct or performance has been unacceptable and that a failure to improve may result in further disciplinary action. The required standard will be outlined. The warning will be given verbally and subsequently confirmed in writing. ii. Written Warning Written warning will usually be applied as the second step of corrective action following unsatisfactory performance or conduct offences. The Practice will define the unacceptable acts and explain the conduct or standards required in the future. You will be advised in writing that a failure to improve the standard of conduct or performance may result in further disciplinary action. A time limit will be placed on the warning iii. Final Written Warning A final written warning is usually applied after a written warning has been given and performance or conduct has not improved but may be applied after a more serious first or second offence. You will be advised in writing that a failure to improve the standard of conduct or performance may result in dismissal. A time limit will be placed on the warning iv. Dismissal Dismissal occurs when your employment is terminated either with or without notice. Dismissal without notice is also referred to as summary dismissal and is restricted to cases of gross misconduct.c. This Practice reserves the right, at its complete discretion, to impose a sanction short of dismissal if it is deemed appropriate. This may include demotion, transfer to a different post or another appropriate sanction. Any such decision will be confirmed to you in writing once you have been informed of the outcome.d. Notification of the decision and disciplinary action Following the disciplinary meeting the practise will notify you of its decision and the disciplinary sanction it will apply. This letter will also explain your right to appeal against any decision taken and sanction applied.e. Your right of appeal against disciplinary action If you wish to appeal against a decision you must submit your request in writing, stating the reasons for appeal, to the individual identified in the letter Page 16 of 28 confirming the sanction. This should be submitted within 5 days of receiving notification. The first of these five working days is the day on which you received written confirmation of the decision.f. The appeal meeting You will be informed of the date and time of the appeal meeting. If you feel you have a legitimate reason as to why you cannot attend the meeting on the proposed date, you must contact the person named on the invitation letter to inform them of this fact immediately. The meeting may then be delayed to facilitate your attendance, if this is considered reasonable. You will be entitled to be accompanied by a fellow employee or trade union official. At the appeal meeting you will be given the opportunity to state your case. Your companion is permitted to put forward an summarise your case, respond on your behalf to views expressed in the meeting, ask questions and confer with you, but will not be entitled to answer questions directly on your behalf. The meeting will then be adjourned to allow the Practice to consider the facts and the decision will be confirmed in writing. The outcome will be communicated as soon as possible, taking into account the complexity of the issues raised in the appeal. The decision at this stage will be final.[99]As my finding of fact regarding the claimant’s effective date of termination created a jurisdiction point, there is a certain amount of circularity involved in explaining my reasons. For clarity I have presented this in the order of the matters as they arose: my decision on unfair dismissal, then my decision regarding jurisdiction and finally my decision on remedy. (A) UNFAIR DISMISSAL[100]It was not disputed that the claimant was an employee of the respondent within the meaning of section 230 ERA and that she had been an employee for 4 years. So the claimant was entitled to bring a claim of unfair dismissal. Was there a dismissal?[101]In order to bring a claim, the claimant has to show, that on the balance of probabilities, i.e. it was more likely than not, that she was dismissed by her employer[102]That there was a summary dismissal on the morning of 9 May is not disputed. It is also not disputed that ‘something’ took place that afternoon, and the respondent submits that the dismissal was revoked. Page 17 of 28[103]I have to determine whether the revocation was legally effective to extinguish the earlier dismissal and to restore the claimant’s employment unbroken.[104]The relevant facts are:a. Both parties agreed that the handbook formed part of the terms and conditions of the employment contract.b. Employee Handbook says “Dismissal occurs when your employment is terminated either with or without notice. Dismissal without notice is also referred to as summary dismissal and is restricted to cases of gross misconduct. This practice reserves the right at its complete discretion, to impose a sanction short of dismissal if it is deemed appropriate. Any such decision will be confirmed to you in writing once you have been informed of the outcome.”c. In order to rely on the operation of the contract/employee handbook, the claimant must appeal in writing and the respondent’s decision should have been made in writing (see paragraph 98.e and paragraph 98.f above) .[105]So I find that her employment contract permits an appeal from dismissal, and that the sanction of dismissal can be reduced on appeal. This means that there could have been a ‘vanishing dismissal’ (Roberts v West Coast Trains Ltd 2005 ICR 254, CA). A ‘vanishing dismissal’ following an appeal must happen by virtue of the operation of the provisions of the contract (Saminaden v Barnet Enfield and Haringey NHS Trust UKEAT/0018/08)[106]It was obvious from the witnesses during the hearing and emails at the time that both parties had very different recall of events, although I found that both Dr Ighodaro and the claimant were credible in this regard and that there was a genuine misunderstanding.[107]However, the exact understanding of each party is not relevant as the correct procedure must be followed in order to establish whether the dismissal was revoked. It is clear that the claimant did not appeal the dismissal decision in writing and it is equally as clear that the respondent’s decision to suspend the dismissal decision (pending medical evidence) was not communicated to the claimant in writing.[108]Although it was not argued before me I have considered whether the parties had varied the contract so that the handbook provision could operate without the need for written confirmation. I conclude that would need to have been a clear understanding of what was agreed to or varied in order to rely on this approach.[109]In the absence of a clear understanding of what happened on the afternoon of 9 May regarding the claimant’s employment status, it is difficult for me to conclude that that the parties had mutually agreed to vary the terms and conditions of the Page 18 of 28 contract. I therefore determine that the contract was not varied to remove the requirement to appeal and to give a response in writing.[110]The appeal and reinstatement that the respondent alleges took place on 9 May was not effected according to the terms and conditions of the contract and therefore not effective.[111]It was not argued before me but I have also considered whether the contractual appeal and revocation could have taken place in the email correspondence that took place on 17 and 18 July 2023. However the handbook says that any appeal must be made with five days of the receiving notification of the decision, so any written appeal must have been made no later than 14 July 2023.[112]The claimant was not therefore reinstated in the afternoon of the 9 May and she was summarily dismissed within the meaning of s95(1)(a) ERA on the morning of 9 May 2023. What the dismissal potentially fair?[113]Having established that the claimant was dismissed, the burden of proof passes to the respondent who must demonstrate that, on the balance of probabilities, the reason for the claimant’s dismissal and that it was a potentially fair reason. This means that weighing up the evidence, I must decide whether it was more likely than not that the reason was a potentially fair reason.[114]The respondent alleged that the claimant was dismissed because of a poor attitude generally but in particular relied on the bullying and harassment of a colleague, Ana. This would be a ‘conduct’ issue and that is a potentially fair reason within s98(2)(b) ERA.[115]I find that the respondent did not discharge their burden of proving that it was “more likely than not” that the claimant was dismissed for a “potentially fair” reason of her conduct.[116]In reaching my conclusions I relied on the following in particular:a. The respondent’s own internal procedures required a series of escalating measures to inform employees of any issues and that these would be confirmed in writing. The claimant was summarily dismissed but the respondent does not have well documented reasons for her termination contrary to its own policies.b. The respondent was unable to produce any written or specific witness evidence of the apparent past history of conduct issues (prior to the issue with her colleague Ana, which arose in April 2023, the ‘Ana issue’). Page 19 of 28c. I noted Dr Ighodaro’s explanation that the lack of written evidence and his lack of recall was simply because they were like a family who supported each other and did everything as informally as possible.d. Dr Ighodaro had worked with the claimant throughout the 4 years of her employment and in cross-examination he could not detail any specific examples of poor behaviour. He mentioned in general terms that she was sensitive and difficult to deal with; that patients had complained of her speaking in a foreign language on the phone; that she ignored patients; that she used her mobile phone in reception; but he could not recall specific incidents and there was no written evidence of these complaints having been made or addressed with the claimant.e. The decision to terminate was made by Ms Olte who had worked with the claimant for under four months and could not recall any specific incidents other than the ‘Ana issue’.f. That there was an issue between the claimant and Ana, I have no doubt. They had started their working life on a seemingly friendly basis, as indicated by the WhatsApp messages. However their relationship obviously deteriorated and Ana accused the claimant of emotional and verbal abuse on 6 April. The respondent submitted a copy of Ana’s complaint, but failed to produce: i. any written evidence about its investigation into the complaint, ii. the outcome of the complaint and iii. did not call the investigator, Dr Samadi, to be a witness or submit evidence.g. There was no evidence submitted that the claimant had actually bullied her colleague only that they did not get on which led to my conclusion that there was no evidence of bullying but only of a personality clash.h. By Dr Ighodaro and Ms Olte’s witness evidence, they believed that the investigation had concluded that claimant was not the sole the cause of the misconduct and a 50:50 cause of the tensions between the two.i. Ana, the colleague, resigned with immediate effect on 5 May. Following the conclusions of the respondent’s own internal investigation, the ‘issue’ was now resolved and any potential reason for dismissing the claimant had fallen away.j. During witness evidence Ms Olte was asked to explain why she went ahead with the dismissal of the claimant anyway, even though Ana had left. But Page 20 of 28 was unable to do so convincingly and said it was not just the Ana issue but could not give any other clear examples of poor conduct.[117]I cannot conclude on the basis of the above that the reason for the claimant’s summary dismissal was misconduct when the respondent has not provided evidence of this conduct. Was the dismissal reasonable?[118]If I am wrong in my conclusion about the reason for the dismissal, I have addressed the question of whether a misconduct dismissal was substantively unfair.[119]In order to do I have considered whether the dismissal wasa. within the range of reasonable responses to the alleged misconduct;b. the employer believed the employee to be guilty of misconduct;c. the employer had reasonable grounds for believing that the employee was guilty of that misconduct; andd. at the time it held that belief, it had carried out as much investigation as was reasonable.[120]I have considered all the facts and in particular relied on the following in considering the reasonableness:a. I find that the decision to terminate the claimant’s employment was made by Ms Olte as she had the management of the day-to-day running of the practice.b. Ms Olte had worked with the claimant for less than 4 months.c. The investigation that had been carried out related only to the issue with the claimant’s colleague Ana. As the problem Ana had been resolved a few days prior to the dismissal then I do not consider that there was as an appropriately investigated, properly considered, genuinely held belief and the reason for the dismissal.d. Neither Ms Olte not Dr Ighodaro could articulate the nature of any other misconduct being relied upon for the reason for dismissal.[121]It is difficult to conclude objectively that in the circumstances that the employer acted reasonably in treating the reason as a sufficient reason for dismissal and that it was within the range of reasonable responses. The situation with Ana was not a bullying situation (and the problem no longer existed) and the respondent had no other real reason to conclude that there was sufficient reason to dismiss the claimant. Page 21 of 28[122]Whilst I find that Ms Olte genuinely believed the claimant to be guilty of misconduct of some description, I find that she did not have reasonable grounds for believing that; and at the time she made the decision to dismiss the claimant, she had not carried out as much investigation as was reasonable.[123]I note that the respondent’s representative acknowledged in his submissions that the dismissal was also procedurally unfair so I have not been required to make a decision on that.
Conclusion
[124]The dismissal was substantively and procedurally unfair.[125]I therefore find that the claimant’s claim for unfair dismissal was well-founded and succeeds. Adjustments to any award[126]As I have found that the dismissal was substantively unfair I do not need to make a finding in respect of Polkey (see paragraph 61 above).[127]I do not find, on the balance of probability, there was any contributory fault on the part of the claimant. No evidence other than vague unspecific recall of poor behaviour was provided by the respondent.[128]The ACAS code requires fairness and transparency. In particular:a. Para 2 says that “Fairness and transparency are promoted by developing and using rules and procedures for handling disciplinary and grievance situations. These should be set down in writing, be specific and clear”.b. Para 4 says that “whenever a disciplinary or grievance process is being followed it is important to deal with issues fairly. There are a number of elements to this: i. Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. ii. Employers and employees should act consistently. iii. Employers should carry out any necessary investigations, to establish the facts of the case. Page 22 of 28 iv. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. v. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. vi. Employers should allow an employee to appeal against any formal decision made.”[129]The respondent’s representative submitted thata. the steps taken by the respondent during the investigation of the ‘Ana issue’ and those taken by Dr Ighodaro in the afternoon of the claimant’s dismissal demonstrated compliance with the ACAS code; andb. the lack of any documentary evidence of poor evidence or clear recall of specific incidents was due to the respondent’s relaxed, familial and supportive approach.[130]As I have found above, although the reasons put forward by Dr Ighodaro and Ms Olte relied on a ‘long history’ of poor behaviour, there was no evidence of this of this being dealt with by the respondent at all, let alone in compliance with process recommended in the ACAS code.[131]However, even if there had been evidence of past performance issues, which there was not, the informal, non-verbal nature of the management was also contrary to the employment handbook which was part of the contractual terms and conditions and clearly laid out a process to be followed.[132]With regards to the ‘Ana issue’ which was alleged to be the primary reason for the claimant’s dismissal, the process followed was not transparent or clear, in particular:a. Although there was an investigation into the grievance raised by Ana, there was a failure to follow proper contractual process and ACAS recommendations during and after the grievance;b. the respondent was unable to produce any supporting evidence to show that a fair process had been followed; andc. the respondent’s representative acknowledged in his submissions that the dismissal was procedurally unfair.[133]There was also a lack of clear written communication after the dismissal and the claimant was unsure whether she was even employed or not. Page 23 of 28[134]In para 3, the ACAS code acknowledges that “Where some form of formal action is needed, what action is reasonable or justified will depend on all the circumstances of the particular case. Employment tribunals will take the size and resources of an employer into account when deciding on relevant cases and it may sometimes not be practicable for all employers to take all of the steps set out in this Code.”[135]The Respondent was a dental practice, employing a number of professionally trained staff. Although not a large employer, it was one that would have had the ability to follow their own processes and to have been aware of the ACAS code.[136]I therefore find that an uplift of 25% to any element of compensatory award should be made for the failure of the respondent to follow the ACAS code. (B) JURISDICTION What was the EDT?[137]I have found that claimant’s effective date of termination (EDT) is 9 May 2023.[138]Time limits start to run from 9 May 2023 and meant that the claimant had three months from that date to submit her claim to the Tribunal. The claimant’s ACAS form was submitted 14 August 2023, the ACAS certificate was issued 22 September 2023 and her claim submitted 25 September 2023..[139]The claimant’s representative submitted that the correct date is the date when the pay in lieu of notice (PILON) was actually paid and he relied on the case of Société General v Geys (2012) UKSC 63, where the Supreme Court said that termination under a PILON clause will only be effective if the employee is explicitly notified that the clause has been exercised and informed when the payment has been or is to be made. He argued that if the notice is given before the payment is made, as in the claimant’s case then the contract terminates on the date of the payment, which was actually 31 May.[140]On the other hand, the respondent’s representative submitted that the correct date is 9 May, as the date when respondent notified the claimant that her employment was terminated with immediate effect and that she would be paid in lieu of notice at that point but for the assumption (albeit as assumption that I have found to have been incorrect) that Dr Ighodaro had rescinded the dismissal.[141]In considering this case I looked at the precise terms of the PILON clauses. The relevant PILON clause for the claimant says “the practice reserves the right to make a payment in lieu of notice for all or any part of your notice. Upon the termination of your employment, regardless of whether notice to terminate the contract is given by you or the practice.” Page 24 of 28[142]The PILON clause in Société General v Geys was as follows (paragraph 7 of the Judgment): “SG reserves the right to terminate your employment at any time with immediate effect by making a payment to you in lieu of notice (or if notice has already been given, the balance of your notice period)…. “[143]I find that there are distinguishing features in this case to the Société General v Geys case. In that case the wording of the PILON means that the payment of the PILON is the method by which the contract would be terminated. The use of the word ‘by’ means that the actual payment of the PILON is necessary to terminate the contract. This is not the same as the Claimant’s PILON clause.[144]The email given to the claimant on the morning of 9 May was clear and it terminated her employment with immediate effect, but agreed to provide one month’s pay in lieu of notice.[145]I find therefore that the claimant’s EDT was 9 May and therefore the time limits ran from that date. Her claim should have been submitted by 8 August, instead the application to ACAS was not made until 14 August. Her claim was therefore submitted out of time. Extension of time limits[146]In the event that the claim was submitted out of time, the claimant has made an application for the tribunal to extend the time limit.[147]I may only extend time for presenting a claim if I am satisfied of two things:a. It was not “reasonably practicable" for the claimant to present that claim in time.b. The claim was nevertheless presented "within such further period as the tribunal considers reasonable".[148]On the first point about whether it was reasonably practicable for the claimant to submit before 8 August 2023, I heard submissions from the claimant’s representative that the claimant was confused about her employment status; that following Dr Ighodaro’s rescission of termination she was unsure what her status was. He drew my attention to evidence in the original bundle that demonstrated her confusion and the lack of clarity from the respondent. He explained that it was not until she received her P45 that she fully appreciated that she was no longer employed. I note that her P45 said that her last day of work was 31 May but was dated the 16 August and provided to the claimant shortly after that date.[149]I took note of the respondent’s representative’s representations that I should not lightly exercise my discretion regarding jurisdiction and I agree wholeheartedly with his submissions in principle. However I do think that under these circumstances it Page 25 of 28 would be unfair to expect a claimant to understand that her EDT was 9 May. In fact it was not until I made my finding of fact regarding the inability of Dr Ighodaro to revoke the termination that anyone appreciated that time limits would be an issue.[150]I find that the claimant was unaware that ‘the clock was ticking’ and I find that this was not an unreasonable conclusion given the amount of uncertainty, confusion and lack of communication from the respondent.[151]Therefore I find that the first limb of the test is met and move to consider the second – whether the claim was then presented within such further period as reasonable.[152]I find this is more straightforward to answer, as it is clear that from the moment the claimant realises that she was no longer employment she moved through the process swiftly and promptly. ACAS was contacted almost immediately and the ET1 was submitted within 3 days of the ACAS certificate.[153]I therefore exercise the power given to the tribunal in s11(2)(b) ERA96 to allow the time extension for the submission of the claimant’s claim. I consequently reinstate my decision of unfair dismissal that was given on 30 April 2024. (C) REMEDY[154]It was confirmed by the claimant’s representative even though the claim had been successful, reinstatement or reengagement was not sought and the remedy pursued was compensation.[155]Some items of the claimant’s of schedule of loss were agreed:a. Basic award - £1,944.00b. Compensatory loss – £6,338.83c. Amount already paid by the employer - £1,638.14d. No future loss was claimed so the compensatory award was limited to the immediate loss of earnings, i.e. the loss of earnings between the date of dismissal and the date of the remedies hearing.[156]Items claimed to be determined by the Tribunal:a. Loss of statutory rights The respondent’s representative submitted that the award should not exceed £150 or £200 as that would be inconsistent with past awards made at the employment tribunal. The amount awarded by the tribunal is £300 as Page 26 of 28 claimed by the claimant and this amount is in line with principles in Dugdale v Cartlidge UKEAT/0508/06.b. Loss of pension benefits in the relevant period The claimant claimed £600.21, calculated at £105.30 for 5.7 months. The respondent’s representative submitted this should be reduced to £100 as it should be a nominal award to represent loss of rights. The respondent’s submissions were incorrect in this regard as the loss will be the value of the contributions that, but for the dismissal, the respondent would have made to the claimant's pension scheme during the identified period of loss. The claim is therefore awarded.c. Loss of Holiday pay The claim for unpaid annual leave is dismissed as it was not claimed in time.d. Loss pension benefits accrued during employment Although submitted in the ‘loss of future earnings’ section of the schedule of loss, the claimant’s representative explained that the amount claimed (£5,059.20) was in respect of pension accrued during the claimant’s employment. The claimant was unable to locate any record of the claimant’s pension and that having contacted the People’s Pension she was told no record existed. This potential loss does not arise from the claimant’s unfair dismissal and therefore the Tribunal has no jurisdiction to make an award.e. Injury to feelings There was no discriminatory element to the dismissal so no award made.[157]It was noted that the claimant’s schedule of loss failed to record the amount received by the claimant from the respondent after she had left employment.
Summary
[158]The claimant is therefore awarded £8945.13, calculated as follows: Basic Award £1,944.00 Compensatory Award: loss to date of hearinga. Loss agreed £6,338.83b. Loss of statutory rights £ 300.00 Page 27 of 28c. Loss of pension £ 600.21 Lessd. £s already paid by ER (£1638.14) Total £5,600.90e. ACAS uplift @ 25% £1,400.23 Total compensatory award £7,001.13[159]Total award £8,945.13 Tax[160]The total award is less than the statutory tax free amount and is not subject to tax. Recoupment[161]I note that the claimant’s schedule of loss noted that Jobseeker’s allowance had been received.[162]Therefore the Employment Protection (Recoupment of Jobseeker’s Allowance & Income Support) Regulations 1996 apply:a. The total monetary award made to the Claimant is £8,945.13.b. The prescribed element is £4,700.69.c. The dates of the period to which the prescribed element is attributable are 9 May 2023 to 4 June 2024.d. The difference between (a) and (b) is £4,244.31.