Miss T E Efuribe v Aboutcare Hastings Ltd T/a Everycare Hastings: 2306863/2023
EMPLOYMENT TRIBUNALS
Case No 2306863/2023
Between
Miss T. E. EfuribeClaimantAboutcare Hastings Ltd T/A Everycare HastingsRespondent
Before
Employment Judge G. KingIn person for claimantMr R. Dempsey - solicitor for respondentDate 29 July 2024
REASONS
[1]This case was heard on 3 June 2024. The Tribunal had the benefit of a bundle of documents of 263 pages. Where pages of that bundle are referred to, they are noted in [square brackets].[2]In her ET1 (Claim Form) presented on 2 December 2023, the Claimant brought claims of automatic unfair dismissal on the ground of reporting health and safety concerns, and unlawful deductions from wages. On reading the information at 8.2 of the Claimant’s ET1, the actual issue regarding wages is failure to pay holiday pay.[3]The Claimant’s case in relation to her holiday pay claim is that she was due to start her employment on 26 June 2023. This is the start date on her Certificate of Sponsorship and her offer letter. She says her employer made a mistake on her Disclosure Basic Service (“DBS”) application in that he gave an incomplete address. This meant that the application was rejected after two months. The Claimant then had to put in another DBS application on 4 August 2023 and this was approved after three weeks. She then signed her contract on 16 October 2023.[4]The Claimant’s case is that the Respondent has calculated holiday pay using a start date of 16 October 2023. She contends her start date should be 26 June 2023, which would accordingly give her more holiday entitlement, as it would be calculated from that date until the date of her dismissal. The Claimant says she was not informed of any new start date after 28 days of receiving an offer of employment, and the Home Office rules state that a new start date must be sent to the Home Office within 10 working days if prospective employee has not started work within 28 days of the proposed start date.[5]The Claimant’s automatic unfair dismissal claim is based on her belief that she was dismissed for raising a health and safety issue with her employer following her being bitten by a dog at a care home on 5 November 2023.[6]The Respondent’s case is that the Claimant was dismissed for not providing a medical certificate for her absence, which was an express term of her contract. The Respondent states that the Claimant’s contract [118 – 122] contained the term: “For sickness longer than seven days (whether or not they are working days) staff should obtain a medical certificate and forward this to the Respondent without delay. Subsequently staff must supply the Respondent with consecutive medical certificates to cover the whole of absence.”[7]In relation the holiday pay claim, this is based on the Claimant’s proposed start date. The Respondent’s case is that the offer letter sent to the Claimant was a conditional offer, and it was conditional on the Respondent receiving a completed DBS check. The first application was rejected and so it was only at the end of September that the Claimant’s DBS check came through, hence her start date of 16 October 2023.
Findings of Fact
[1]The Claimant was employed by the Respondent as a Care Assistant between 16 October 2023 until her dismissal with effect from 23 November 2023.[2]The Claimant received a conditional offer of employment from the Respondent on 2 June 2023 [104 – 105]. This letter gave an expected start date of 26 June 2023. The offer of employment, and the start date, were conditional on completed DBS checks being received.[3]An application for a BDS check was submitted on 5 May 2023 and was rejected. A second application was made on 8 August 2023. A completed DBS check was received on 26 September 2023 [112].[4]The Claimant had her induction day on 17 October 2023.[5]On 5 November 2023, the Claimant attended her shift as normal. She was scheduled to work at the Elizabeth Court Rest Home. During her shift, a dog belonging to one of the residents, was present in the dining room. While the Claimant was in the dining room attending to the residents, the dog bit the Claimant on the ankle.[6]The Claimant emailed the Respondent on the same day to say she had been bitten by the dog [125].[7]The Claimant had not raised any issues with there being dogs at the Rest Home previously.[8]The Claimant went to A&E on the morning of 6 November and was given a tetanus injection.[9]At 01:16 on 6 November, the Claimant sent an email to Mr Raastgoye [233 - 234], requesting sick leave due to the dog bite. Mr Raastgoye replied on the same day at 15:54 [233], saying he understood that the Claimant had not been signed off work. He explained that a medical certificate would be needed for absences longer than seven days. He also confirmed that the Claimant was entitled to Statutory Sick Pay if she is absent for four or more consecutive days.[10]On 7 November, Mr Raastgoye emailed the Claimant again [236], asking the Claimant to confirm what medication she had been prescribed and asking the Claimant to confirm if she had been signed off work.[11]The Claimant went back to A&E on 12 November and on 13 November. She had not obtained a medical certificate by this date.[12]On 14 November, the Respondent wrote to the Claimant, inviting her to a disciplinary meeting regarding her ongoing unauthorised absence [135], which was nine days at this point. The disciplinary meeting took place on 16 November [136].[13]Following the meeting, Mr Raastgoye made the decision to terminate the Claimant’s employment for breaching the sickness absence reporting policy. This was confirmed to the Claimant by letter dated 16 November 2023 [140].[14]The Claimant raised a grievance on 16 November [141].[15]The Claimant obtained a medical certificate (“fit note”) from her GP on 17 November 2023.
The Law
[16]Section 100, Employment Rights Act 1996 (“ERA”) provides that: Health and safety cases. (1) 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— (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee— (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.[17]The Claimant has cited the “Employee Right Act 1996 section 44 1 d and e and 2”. By this, the Tribunal assumes she refers to s.44 of the Employment Rights Act 1996.[18]Subsections (d) and (e) of s.44 of the Employment Rights Act have been omitted following the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021.[19]The Tribunal understood that the Claimant was representing herself without the benefit of legal advice. No criticism is made of the Claimant for quoting the wrong section of the legislation and this is not the reason the Clamiant’s claim failed. The Tribunal understood that the Claimant wished to bring a claim of automatic unfair dismissal for raising a health and safety concern, and this was the basis on which the claim was assessed.[20]The Tribunal Rules of Procedure are all subject to the terms of Rule 2. It states as follows: Rule 2 - Overriding objective[21]The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— a) ensuring that the parties are on an equal footing; b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; c) avoiding unnecessary formality and seeking flexibility in the proceedings; d) avoiding delay, so far as compatible with proper consideration of the issues; and e) saving expense.[22]A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. Rule 37[23]Rule 37 provides as follows:(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the Claimant or the Respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[24]The Employment Appeal Tribunal held that the striking out process requires a two-stage test in HM Prison Service v Dolby [2003] IRLR 694, and in Hassan v Tesco Stores Ltd UKEAT/0098/16. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the Tribunal to decide as a matter of discretion whether to strike out the claim. In Hassan Lady Wise stated that the second stage is important as it is “a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit” (paragraph 19).[25]Striking out is not automatic and care is needed given the draconian nature. In Hassan the Employment Appeal Tribunal held that relevant factors in the exercise of that discretion that might have weighed heavily included the early stage of the proceedings, the ability to direct that further and better particulars of each claim be specified, and the absence of any application on the part of the Respondent for striking out. Consideration[26]During her evidence to the Tribunal, the basis on which the Claimant was bringing her case became clearer. She has also stated it very concisely in her email of 17 June 2024, in which she says: “My claim was based on Automatically Unfair dismissal because I could not provide medical note within 2 working days of absence. Reason I did not bring in sick note early was because the dog bite which is a health and safety issue endangered me and caused me pain which left me unable to go out to borrow phone to make call or to visit the GP for appointment. I did not have airtime to make calls and could not walk out to go borrow phone to ame calls and also reported this to the employer and he acknowledged it yet he dimsissed me for not calling or bringing a medical evidence within 2 working days of absence.” [sic][27]Subsections (a), (b), and (e) of s.100 ERA did not apply to the facts of this case.[28]During her evidence to the Tribunal, the Claimant accepted that she had not raised any previous concerns about dogs being present at the care home. She stated that she was worried about coming back to work, but said this was not because of dogs. She said the reason she was worried about returning to work was because she was in pain. Her letter to the Respondent of 6 November [132], however, does not convey that information.[29]Her case in relation to subsection (d) was therefore that she was unable to return to work because of the pain caused by the dog bite. She was asked repeatedly what the “danger” - as required by the wording of s.100(d) – was. Her answer was “the danger is the pain”. The Claimant’s claim was more akin to a personal injury claim than a claim under s.100(d). It was clear on her own evidence there was no imminent danger at work, and the thing she was complaining of was the pain caused by the dog bite.[30]The Tribunal therefore found, on the Claimant’s own evidence, that her claim under s.100(d) had no reasonable prospects of success. The claim was therefore struck out under Rule 37(1)(a).[31]The Claimant also wished to rely on subsection (c). The Claimant’s contention is that, having been bitten by the dog, her being unable to get a medical certificate for her absence due to the pain in her leg amounted to reporting a health and safety concern.[32]This is not how s.100 ERA is designed to operate. S.100(c) is designed to protect employees who bring to an “employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety”. A concern can be defined as something that causes worry. A concern is a risk that something could or might happen. S.100(c) protects workers who therefore raise with their employer a worry about a potential, future, set of circumstances which might cause harm. S.100(c) does not operate to protect workers who are unable to comply with a provision of their contract due to the work of being injured, even if the injury is sustained during work. The Claimant had simply misunderstood the application of s.100(c) ERA.[33]The Claimant also stated that she had no credit on her phone in which to explain her circumstances to her employer. She also appeared to imply criticism of her employer for not telling her that a medical certificate or “fit note”, was obtained from her GP and not from A&E. Neither of these issues are relevant to a claim under s.100(c).[34]The Claimant also accepted during her evidence she did not provide a fit note until 17 November 2023, which was one day after her dismissal. On her own evidence, therefore, the Claimant accepted that she had not complied with the Respondent’s policy on providing a fit note within one week of her absence. The Tribunal understands the Claimant’s position in relation to why she did not obtain a fit note until 17 November 2023; she says she was in pain and unable to go out; that he did not have any credit on her phone with which make calls; and that she did not know that it was the GP who issues fit notes.[35]In relation to not knowing where to obtain a fit note from, this is something the Claimant could have easily found out. In any event, there is no duty on the Respondent to explain this to the Claimant and no criticism can be levelled at the Respondent for not doing this. Nor can the Respondent be blamed for the Claimant’s lack of credit on her phone. In any event, neither of these two issues are relevant to a claim under s.100(c), as neither relate directly to raising a health and safety concern.[36]The Claimant’s own evidence therefore supported the Respondent’s case that the Claimant was dismissed for not providing a fit note within the required timeframe.[37]The Tribunal therefore found, on the Claimant’s own evidence, that her claim under s.100(c) had no reasonable prospects of success. The claim was therefore struck out under Rule 37(1)(a).[38]In relation to the Claimant’s holiday claim, she accepted that her start date was 16 October 2023. Her case is based on the argument that the Respondent failed to correctly apply for her DBS certificate, in that the Respondent only supplied part of the Claimant’s address when applying for the certificate. The Claimant’s case is that the Respondent was therefore negligent in the first DBS application, or deliberately caused it to fail, either way causing the Claimant’s start date to be delayed.[39]Whatever the reason for it, the Claimant accepted that her start date was, as a matter of fact, the 16 October 2023. Her holiday entitlement would be calculated from that date. Holiday entitlement is not calculated from proposed, conditional start dates. It was clear on the Claimant’s own evidence that her claim in relation to holiday pay had no reasonable prospect of success. The claim was therefore struck out under Rule 37(1)(a).[40]During the hearing, the Claimant became increasingly emotional. Allowances were made for the fact that she had dialled into the hearing and therefore lacked any of the visual cues that one participating in the hearing by video might benefit from. The Claimant was requested many times to not interrupts and to wait for questions to be asked of her before she started giving her answer or her account of what she thought was relevant.[41]The Claimant, however, continued to interrupt the Respondent’s counsel during cross examination. She was not listening to the questions that were being put. Repeated warnings were given to the Claimant regarding her behaviour, and short breaks were taken to allow the situation to de-escalate. A warning was given that, if the Claimant did not moderate her behaviour, the hearing would have to be adjourned and for it to resume as an in-person hearing in either Ashford or Croydon Employment Tribunal.[42]The Claimant’s behaviour, however, became unmanageable to the point that it was not possible to have a fair hearing. She would not listen to the question that was being asked of her and kept interrupting and trying to ask her own questions of the Respondent’s counsel.[43]At this point, the Respondent’s counsel made an application for the Claimant came to be struck out on the basis that it was no longer possible to have a fair trial. The Tribunal gave consideration to the hearing going part heard and resuming as an in-person hearing in either Ashford or Croydon Employment Tribunal. This would have involved considerable expense on the part of the Claimant, the Respondent’s counsel, and the Respondent’s witnesses, all of whom would have to travel to the hearing venue. The hearing would also need to be heard by the same Judge. As this was a Virtual Region hearing, the Judge hearing the case was not based in London South. There would therefore be considerable cost to the Tribunal, not only for another hearing day, but for the expense of the Judge needing to travel to the hearing venue.[44]The Tribunal considered the Overriding Objective and the need to deal the case fairly and justly. In doing so, the Tribunal considered the need to deal with the case in ways which are proportionate to the complexity and importance of the issues; to avoid delay, so far as compatible with proper consideration of the issues; and to save expense.[45]As set out above, the Tribunal found that the Claimant’s claim of automatic unfair dismissal and the Claimant’s claim in relation to holiday pay had no reasonable prospect of success. They were therefore struck out on that basis. If the Tribunal is wrong that the Claimant had no reasonable prospects of success, then the Tribunal would have found that they had little prospect of success. Taking into account the considerable expense that would have been incurred in setting up a new, in-person hearing, the Tribunal found it was not proportionate to do so for claims that were highly unlikely to be capable of succeeding.[46]Had the Tribunal not found that the Claimant’s claims had no reasonable prospect of success and struck out on that basis, then the Tribunal would have granted the Respondent’s application for strike out based on the Claimant’s conduct. The Claimant’s conduct was such that it was not possible to conduct a fair hearing in the current setting, and the steps required in order to manage the Claimant’s behaviour were not proportionate given the overall strength of the Claimant’s case.