Ms S Brinton v Signature Senior Lifestyle Operations Ltd: 2305753/2023

EMPLOYMENT TRIBUNALS

Case No 2305753/2023

Between

Ms S BrintonClaimant

Signature Senior Lifestyle Operations Ltd RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Burge

In person for claimant

Ms A Greenley (instructed by Counsel) for respondent

Date 21 October 2024

JUDGMENT

[1]The Claimant’s complaint of automatic unfair dismissal for having made protected disclosures was not presented within the applicable time limit. It was reasonably practicable to do so and so it is therefore dismissed.

[2]The Claimant’s complaints of detriment in April and May 2023 for having made protected disclosures were not presented within the applicable time limit. It was reasonably practicable to do so and so they are therefore dismissed. 1 of 2 Case Number: 2305753/2023

REASONS

JUDGMENT having been delivered orally on 21 October 2024 and written reasons having been requested by the Claimant on 4 November 2024 in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013 (“ET Rules”), the following reasons are provided:

[1]The Claimant’s claim form brings complaints of whistleblowing detriment, disability detriment and automatic unfair dismissal. The protected disclosures can be summarised as:1.1 Reporting a blocked fire exit

1.2 Failure to provide “ski ramps” for evacuating residents in the event of a fire

1.3 Not having a locked office door to keep data safe

1.4 Some food having incorrect allergen information in the resident’s café

1.5 Failure to assess means of escape for certain parts of the Respondent.

[2]For the purposes of this hearing the Tribunal has not looked at whether or not the Claimant did make the protected disclosures she says she did.

[3]The Respondent made an application dated 3 April 2024 that:(a) that the Claim has been brought out of time and that the Employment Tribunal has no jurisdiction to hear it; or

(b) alternatively, that the Claim should be struck out as being scandalous, vexatious and/or having no reasonable prospect of success; and/or

(c) further or alternatively, that a Deposit Order should be made by reason of the Claim having little reasonable prospect of success. 1 of 7

[4]A 3 hour hearing was listed to consider the Respondent’s application. The Tribunal had before it a bundle of documents running to 299 pages which included a witness statement from Mr V Seewoolall (Group Director of Operations and Sales of the Respondent) and a list of medical appointments from the Claimant. A witness statement from the Claimant was sent to the Respondent and Tribunal the night before the hearing and a skeleton argument was provided from the Respondent. The Claimant and Mr Seewoolall gave evidence, both parties gave oral submissions.

[5]The Issues in the case were discussed prior to the evidence being heard and the Issues were agreed to be:a. A. Detriment/dismissal for making Protected Disclosures i. Treatment by M Gray in her manner of presenting her letter of 12 May 2023 and her conduct of the meeting on 15 May 2023 which was hostile, unfriendly, dismissive and unprofessional. ii. Treatment by F Kirkland in reaction to the Claimant’s protected disclosures between 21 April and 12 May 2023 by dismissing and belittling her concerns. iii. Treatment by C Krokidis between 21 April and 12 May 2023 responding dismissively “not my problem, there’s no storage here and the residents aren’t using the table”. iv. Treatment by D Swinton during 11 May and the meeting of 15 May 2023 when acting as note taker at the Claimant’s ‘probation review meeting’ when she began ignoring the Claimant at work and making her feel excluded. v. The unfounded allegations of [unspecified] unprofessionalism communicated to the Claimant in the letter of 12 May and detailed in the meeting of 15 May 2023 by M Gray which caused the Claimant great anxiety between 12-15 which included the weekend. vi. The failure to provide the Claimant with details of any allegations made against her and the failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures in relation to these allegations and her dismissal vii. The dismissal, as instigated by the Respondent via M Gray viii. The manner (as opposed to the fact of) the Claimant’s dismissal, communicated to her on 15 May 2023 ix. On 7 July 2023 Mr Whitehead informing the Claimant in the appeal meeting that there was no right to an appeal against probation and it was additional to what the requirement was 2 of 7 x. The failure of the Respondent to provide a suitably qualified note taker (D Swinton) in the meetings of 15 May and 7 July 2023. The notes provided by the Respondent are neither proof read, professional nor accurate. xi. The failure of the Respondent to provide a suitably qualified note taker (D Swinton) in the meeting of 12 October 2023.

b. B. Disability related harassment i. The discussion with Mr Whitehead on 7 July 2023 whom the Claimant found to be humiliating, disrespectful and unnecessary into disabilities asking whether Primary Biliary Cholangitis, Reynauds, Rheumatoid arthritis and depression are her “recognised disabilities”.

c. C. Automatic Unfair Dismissal i. The decision to dismiss on 15 May 2023 because the Claimant had made Protected Disclosures. Law

[6]S. 48 Employment Rights Act 1996 (“ERA”) provides that: “…(3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures , the last of them, 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. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

[7]In respect of what constitutes a “series of similar acts or failures”, Ibarz v University of Sheffield EAT 0018/2015 cautions a Tribunal against only focusing on the time between acts, rather than also looking at the substance of the matters to decide whether or not there were similar acts.

[8]The relevant parts of S.111 ERA provide: “(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) 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— 3 of 7(a) before the end of the period of three months beginning with the effective date of termination, or

[9]S. 103A ERA provides: “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

[10]The primary limitation period has been amended by the ERA, section 207A. The effect of section 207A ensures that the period between the date when the prospective claimant contacts ACAS and the date when the prospective claimant receives or is treated as receiving the ACAS Early Conciliation Certificate and does not count towards the three-month primary limitation period.

[11]The onus of proving that presentation in time was not reasonably practicable is on the Claimant.

[12]In Lowri Beck Services Ltd v Brophy

2019 EWCA Civ 2490

, CA, Lord Justice Underhill set out the essential points established in the case law: “(1) The test should be given “a liberal interpretation in favour of the employee … (2) The statutory language is not to be taken as referring only to physical impracticability and for that reason might be paraphrased as whether it was “reasonably feasible” for the claimant to present his or her claim in time: see Palmer and Saunders v Southend-on-Sea Borough Council

[1984] IRLR 119

… (3) If an employee misses the time limit because he or she is ignorant about the existence of a time limit, or mistaken about when it expires in their case, the question is whether that ignorance or mistake is reasonable. If it is, then it will have been reasonably practicable for them to bring the claim in time (see Wall’s Meat Co Ltd v Khan

[1979] ICR 52

); but it is important to note that in assessing whether ignorance or mistake are reasonable it is necessary to take into account any enquiries which the claimant or their adviser should have made. (4) If the employee retains a skilled adviser, any unreasonable ignorance or mistake on the part of the adviser is attributed to the employee (Dedman)… (5) The test of reasonable practicability is one of fact and not of law (Palmer).”

[13]In Cygnet Behavioural Health Ltd v Britton

[2022] EAT 108

the Employment Appeal Tribunal decided that, against findings that the claimant was able to do a great many other things during the period after his dismissal, it was perverse for 4 of 7 the Employment Tribunal to find that the claimant's mental health problems and dyslexia and his focus on the professional body investigation meant that it was not reasonably practicable for him to make himself aware of the time limits. “A person who is considering bringing a claim for unfair dismissal is expected to appraise themselves of the time limits that apply; it is their responsibility to do so” (paragraph 53).

[14]The Claimant started working as a Client Liaison Manager on 17 April 2023. The Respondent says that a significant number of material issues emerged regarding her conduct and performance which caused the Respondent to terminate her employment during a probationary review meeting on 15 May 2023, with pay in lieu of notice. These included timekeeping, the Claimant being on her personal mobile phone, not complying with the Respondent’s dress code, her reaction to being told she was not complying, inappropriate conduct, intervening in areas outside of her remit demonstrating a lack of judgment and undermining colleagues.

[15]The Claimant says that during her employment she made protected disclosures about a fire exit being blocked, a lack of (and training on) the use of “ski pads” for evacuations, a failure to install a keypad lock on the Client Liaison Manager’s office and a failure to label food in the resident’s café with appropriate food allergen information.

[16]The Claimant appealed her dismissal on 22 May 2023 and the appeal was heard on 7 July 2023. At that meeting the Claimant says that she was the subject of disability discrimination by way of harassment as a consequence of being asked questions about several of her alleged disabilities by Mr Whitehead, the interim Regional Director, during the course of the hearing of her appeal against dismissal on 7 July 2023.

[17]By letter dated 10 July 2023, the Respondent confirmed that the Claimant’s appeal was dismissed and upheld the Respondent’s decision to dismiss the Claimant made on 15 May 2023.

[18]Early conciliation started on 8 August 2023 and ended on 11 September 2023. The claim form was presented on 16 October 2023. The Claimant’s allegations from April and May 2023, including her dismissal on 15 May 2023, are out of time. The deadline for presenting her claim was 11 October 2023 but the claim was presented on 16 October 2023. The only three allegations that are in time are:18.1 the detriments from 7 July and 12 October 2023; and

18.2 the complaint of harassment related to disability discrimination dated 7 July 2023.

[19]The earlier alleged detriments spanned the Claimant’s short employment of under a month (from 17 April 2023 to 15 May 2023) and were about the Claimant’s alleged treatment and allegations about her work by M Gray, F Kirkland, C Krokidis, D Swinton (when she began ignoring the Claimant at work and making her feel excluded), the allegations of unprofessionalism levied at her, the failure 5 of 7 to provide details of allegations made against her, not following the Acas Code of Practice on Disciplinary and Grievance Procedures, and the manner of the Claimant’s dismissal by M Gray on 15 May 2023.

[20]A gap of just under two months then occurred and the next allegations were about the appeal meeting on 7 July 2023 when Mr Whitehead told the Claimant that there was no right of appeal but that they were doing it anyway, the Claimant’s allegation that the notes of meeting by D Swinton were not proof read, professional nor accurate. The final allegation of detriment is a failure to provide a notetaker on 12 October 2023 at a meeting where settlement is discussed. There is a time gap between the detriments that took place while the Claimant is in employment (17 April 2023 to 15 May 2023) and the next allegation which took place on July 2023. The in time allegations (7 July and 12 October 2023) are of a different character from the detriments arising during her employment and dismissal – the first is being told that the appeal is not a requirement under the policy (this is a different individual to previous allegations), the notes from 7 July being “neither proof read, professional nor accurate” and not providing a note taker at a settlement meeting do not form part of a series and so the detriments/automatic unfair dismissal from April/May 2023 are out of time.

[21]The Claimant had brought two other Employment Tribunal claims and so knew about proceedings, she was aware of time limits as she mentioned them to the Respondent at the time, she had advice from solicitors at the time as she had referenced them, she had legal advice via her Home Insurance and generic advice via Which legal. A transcript of the telephone call on 2 October 2023 shows that the Claimant said to Mr Seewoolall “I have to get on because of time constraints with the Employment tribunal”. She also says “I know having been in court a lot and lot and lot of times”.

[22]While ACAS did say that time limits meant she had “at least” one month from putting her claim in, it did also emphasise the importance of time limits and submitting claims if unsure.

[23]The Tribunal does not accept the Claimant’s submission that she was too unwell to put her claims in in time, she was applying for jobs during that time, she was speaking and trying to negotiate with the Respondent. Even after her root canal she spoke at length with Mr Seewoolall. Her focus was on trying to broker a settlement with the Respondent. On 20 September 2023 the Claimant said that she would support the relative of a wronged former patient at the Care Home, that the Guardian were in touch with her, that there was “a heap of trouble coming down the track” for the Respondent. In her conversation with Mr Seewoolall on 22 September 2023 the Claimant said that if her complaint was resolved then she would drop her support for the relative of the wronged former patient. The Tribunal concludes that the Claimant was robustly negotiating during the period and therefore well enough to put her claims in.

[24]The Claimant had a hip replacement on 10 October 2023 but she was well enough to have a meeting with Mr Seewoolall on 12 October. She says she was “wooly headed” at that meeting but this does not accord with the transcript of (the Claimant’s covert) recording where she is extremely robust in her negotiation style: 6 of 7 “But the company could well, is going to suffer. It is going to suffer. And for me, when there, you know, high payouts are not uncommon…” “I am not a nobody. Do you know my family name?” “So we’re, we are the Brintons of Brintons’ Carpets. So I know really – a real lot of very important, powerful people – Our local MP is one of my best friends. Her kids were at school with mine. We are – I will be pulling out – for the safety of, of the residents. So if that’s the way the company wants to go down – I’m telling you this honestly.”

[25]The Claimant says that an extension of time was agreed with the Respondent to accommodate an in-person meeting with the Claimant. However, the transcripts of conversations reveal no such agreement. In any event the Respondent would not be able to agree an extension to a statutory requirement.

[26]The Tribunal concludes that the detriment and automatic unfair dismissal complaints from April/May 2023 were not presented within the applicable time limit. It was reasonably practicable to do so and so the complaints are dismissed. RECONSIDERATION

[1]Rule 72(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the “Rules”) enable an Employment Judge to refuse an application for reconsideration if they consider that there is no reasonable prospect of the original decision being varied or revoked. The test is whether it is necessary in the interests of justice to reconsider the judgment (Rule 70).

[2]Preliminary consideration under Rule 72(1) must be conducted in accordance with the overriding objective which appears in Rule 2, namely that cases should be dealt with fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just process.

[3]The Claimant seeks to relitigate matters that have already been litigated. It is an attempt to have a second bite at the cherry which is contrary to the overriding objective, it would not be fair nor just to allow the Claimant to do so.

[4]It is therefore not in the interests of justice for the decision to be reconsidered. There is no reasonable prospect of the original decision being varied or revoked. 1 of 2 Case Number: 2305753/2023