K Paczkowska v R-Com Consulting Ltd: 2402211/2019 and 2414057/2019
JUDGMENT
[1]The effective date of termination of the claimant’s contract of employment was 12 November 2018.[2]The documents relating to early conciliation are irrelevant and inadmissible and may not be referred to in the Hearing nor included in the agreed bundle of documents.[3]The respondent’s application for a deposit order is refused. Case number 2402211 /2019 2 Employment Judge Warren Signed on 29 July 2019 Oral reasons having been given at the Hearing, written reasons may be requested within 14 days Judgment sent to Parties on 1 August 2019 Case No. 2402211/2019 1 EMPLOYMENT TRIBUNALS Claimant: Miss K Paczkowska Respondent: R-Com Consulting Limited Heard at: Manchester On: 25 July 2019 Before:REASONS
[1]By a claim presented to the Tribunal on 4 March 2019 the claimant alleged that she had been unfairly constructively dismissed. She did not indicate the date of her termination in the ET1 other than at paragraph 8.2 in the particulars where she quoted from her letter of resignation as follows: “I am writing to inform you that I am resigning from my position of Sales Support Coordinator with immediate effect on 12 November 2018. Please accept this as my formal letter of resignation and a termination of our contract.”[2]The respondent presented an ET3 denying that there had been a breach of the fundamental term of confidence and trust. In the ET3 reference was made to the fact that the claimant had quoted from “without prejudice” discussions which had taken place via ACAS and pleaded that they were inadmissible. Case No. 2402211/2019 2[3]The respondent made application for a preliminary hearing to discuss issues regarding disclosure and the content of the bundle to be agreed for the hearing. The respondent sought a preliminary to resolve issues of disclosure and the bundle, and this was listed for 1 July 2019. The main hearing was listed to be heard on 6, 7, and 8 August 2019 by an Employment Judge sitting alone.[4]On 1 July 2019 Employment Judge Feeney sitting alone noted that the application for a deposit order was not being considered and in effect was withdrawn, and there was discussion about the extensive request for disclosure made by the claimant and resisted by the respondent. It was noted that the claimant wanted to include “without prejudice” correspondence from ACAS in the constructive unfair dismissal claim. It was noted that the claimant's effective date of termination was not yet decided.[5]The Employment Judge noted that the effective date of termination was highly relevant to the question of whether or not the “without prejudice” correspondence was relevant, irrespective of whether or not it was admissible, because if the ACAS matters all arose after 12 November 2018 and 12 November is the effective date of termination, it could not be relevant to the reasons why the claimant had resigned. However, if the resignation had been stayed then it was possible that the discussions with ACAS could form the basis of a constructive unfair dismissal claim if the claimant had in effect withdrawn her resignation and then reinstated it when the respondent’s communications via ACAS were so oppressive as to constitute a fundamental breach of contract.[6]It is to be noted that this claim for unfair constructive dismissal the claimant says was triggered by the outcome of a discrimination claim that she had before this Tribunal for race, sex and disability. At the point of the hearing on 1 July 2019 and indeed this hearing, the Judgment had not been promulgated in that case. However, Employment Judge Sherratt had orally given the parties an indication of what would be in the Judgment. All of the claimant's claims were dismissed in that Judgment other than a claim for victimisation which related to the failure to provide a reference. It is that victimisation that the claimant alleges was the fundamental breach which led to her resignation.[7]Two days before this hearing the respondent added to its application by applying again for a deposit order and or strike out of the claimThe Issues
[8]The issues to be decided at this hearing are therefore:(1) Should the claim be struck out?(2) Should the claimant be ordered to pay a deposit?(3) What was the effective date of termination? Case No. 2402211/2019 3(4) Should the claimant be allowed to adduce evidence of the correspondence and discussions between ACAS, the respondent and the claimant?The Evidence
[9]The parties had an agreed bundle of 109 pages, there were written submissions from both parties, the claimant gave evidence in her own regard and the respondent called Miss E Singer.[10]Adjustments were made for the claimant to enable her to conduct her case effectively by hearing the case on the ground floor of building to enable her to use a wheel chair, which she delivered the day before. Reasonable adjustments were also made for Miss Singer to ensure her evidence was effective by asking the claimant ask short questions and to allow time for Ms Singer to reply. The claimant agreed and the case ran smoothly.[11]The first issue to be considered was the application by the respondent for strike out, which was received just days before the hearing on 26 July 2019. This is in direct contrast to the application for a deposit order which was first referred to in the ET3 and mentioned at the case management discussion on 1 July 2019. The claimant indicated that she had had insufficient time to prepare a response to the strike out application. In the circumstances of this case I did not consider it appropriate that a strike out application should be heard at such short notice. The claimant, who is Polish, and apparently unwell, would need time to research and prepare her case in this regard. She is a litigant in person. In these circumstances I refused to hear the application for strike out.Findings of Fact
[12]I made the following findings of fact having heard the evidence of the claimant and Miss Singer on oath.[13]The claimant is also the claimant in a case brought about alleged race, sex and disability discrimination. The case was heard in 2018 by Employment Judge Sherratt sitting with members. It had been expected that the Judgment would be promulgated in the autumn of 2018. For perfectly justifiable reasons (the details of which are not needed here) that Judgment had not been promulgated by this hearing on 25 July 2019. However, Employment Judge Sherratt had given a summary oral judgment to the parties so they know what to expect when the Judgment is promulgated. The oral judgment indicated that the claimant had lost her case in all regards other than one. The panel found in her favour on an allegation that she was victimised having brought her claims of discrimination by the respondent refusing to provide a reference for her to an alternative prospective employer. The outcome was that she lost that employment. When the claimant became aware of the outcome of the case she prepared a letter of resignation indicating that such victimisation was a fundamental breach of the term of trust and confidence, and she therefore considered herself constructively dismissed. That letter was dated 12 September 2018 and is extensively quoted in her ET1 in this case. In cross examination the claimant accepted that the Case No. 2402211/2019 4 resignation letter that was sent was in response to what had happened at the Tribunal and also because some of her benefits were about to stop, and so there would be no sanction by her resignation in terms of her benefits.[14]On 4 March 2019 following early conciliation with ACAS, the claimant presented her claim for unfair constructive dismissal.[15]The respondent had offered the claimant the chance to reconsider her resignation. She asked for time to consider the suggestion. However, she did not reply further to them asking them to allow her to reconsider or retract her resignation. Both parties agree that there were no fundamental change after the initial letter of 12 November 2018. The respondent in particular accepted that they believed the claimant may be reconsidering but accepted that in fact she had resigned on 12 November, such resignation never having been retracted by her. There is no evidence of any ongoing employment relationship after the 12 November 2018.[16]The claimant wrote again to the respondent on 15 July 2019 confirming her resignation as of that date. This was some 8 months after the first resignation letter, and 4 months after the constructive dismissal claim had been presented. The respondent believed she had already resigned in November 2018; the claimant simply described herself as not knowing when the effective date of termination was.[17]The claimant also gave evidence that she wished to include memos and minutes and recordings of conversations that she and the respondent had had after she had referred her case to ACAS for early conciliation. She felt that some of the respondent’s comments to ACAS were derogatory and threatening. For instance, it was suggested that if she pursue her claim for constructive unfair dismissal the respondent would consider an application for costs should she lose her claim. She wanted to include this evidence in her claim for unfair constructive dismissal. She considered that the respondent had behaved with impropriety because they had refused to give her a reference and place her under undue pressure by pursuing her for costs if the case was lost. This was set out in emails to ACAS on 28 February and 1 March 2019. ACAS passed these comments on to the claimant and she considered that to be undue pressure on which basis she felt that all of the correspondence and notes that related to the ACAS early conciliation process ought to be included in the bundle for her unfair constructive dismissal claim.[18]Miss Singer gave evidence on behalf of the respondent in this regard. It was agreed between the two ladies that they had not met each other before but that Miss Singer had been instructed by the respondent through their representatives to deal with early conciliation. Miss Singer apparently undertakes this role specifically for the respondent’s representatives’ organisation. She explained that it is common practice to invite a resigning employee to reconsider her resignation, although the claimant criticised this because it could have led to her being out of time in the presentation of her claim. She accepted that there had been a mistaken impression that the claimant was reconsidering her resignation, but did accept in due course that that was a misunderstanding on their part and that 12 November remained the date on which the claimant had resigned and had never retracted. She explained that her role is to step Case No. 2402211/2019 5 in when the parties do not cooperate with each other and the conciliation process is fractious. She confirmed she believed the claimant as a litigant in person would not necessarily understand the tests of the Tribunal on a constructive dismissal claim, and she did not believe that the claimant's case had merit but did not see her comment in this regard as derogatory. The claimant accused Miss Singer of victimisation. Miss Singer explained that she did not consider this to be a case of victimisation because bringing the constructive dismissal claim was not a protected act. She confirmed that she was looking to sort out a factual reference for the claimant but the claimant wanted more than she was prepared to give. She confirmed that she remained unsure as to when the effective date of termination was, although from the evidence she had heard that day she believed it to be 12 November and she sought certainty from the Tribunal in this regard. Submissions[19]Mr Watson on behalf of the respondent made the following representations:(1) The effective date of termination was very important because if it was 12 November then the early conciliation process was irrelevant because the claimant had already resigned before it and it could not therefore have impacted on her decision to resign based on a breach of trust and confidence. The respondent sought certainty of the effective date because the whole of the constructive dismissal claim would boil down to what had caused her to resign.(2) He did not consider that the “toing and froing of ACAS” could be relevant because these were genuine attempts to resolve the case with nothing to do with the issue.(3) He denied there was any impropriety on the part of the respondent in any event such as to enable the negotiation records to lose their protected status. The threats perceived by the claimant were simply an explanation of what is likely to happen brought out of a knowledge of the law. This was no more than an ordinary conciliation although she clearly found it enormously distressing.[20]When dealing with the application for a deposit order Mr Watson said that the claim was now highly unlikely to succeed but it was hard to explore further because the respondent awaited the Judgment from the earlier case and the fact that the claimant was now relying on that and the refusal to give a reference in October 2017 to bring a claim of unfair constructive dismissal which was doomed to fail.[21]The claimant argued that the respondent had been found guilty of victimising her i.e. bad faith. She intends to appeal the decision that she has lost on the other allegations of discrimination, and that case is ongoing. She considered that the communication around ACAS was threatening and derogatory and referred to two cases: Scott v London Borough of Hillingdon [2001] discussing the knowledge of a protected act being a precondition to a finding of Case No. 2402211/2019 6 victimisation, and Wright v North Irish Council [2014] ICR 77, where a potential reason for the resignation was in place in part to do with the employer’s breaches and in part for personal reasons – the correct question is whether the repudiatory breach played a part in the resignation. She sought to have the ACAS documents included because she wanted the Employment Tribunal to stop the respondent from victimising her.[22]The claimant reminded the Tribunal that on the issue of whether or not a deposit order should be made the actual Judgment had not yet been written in relation to the first case and all she had to work with was the summary judgment given by