Miss C Ettore v Pro Support Ltd: 2402575/2023
JUDGMENT
[1]The complaints of unfair dismissal (under section 98 and under section 103A Employment Rights Act 1996) were presented out of time. It was reasonably practicable for the claimant to have presented the complaints in time. Those complaints are dismissed.[2]The complaints of being subjected to detriments and unauthorized deductions from wages are the subject of further case management. JUDGMENT and reasons dismissing the complaints of unfair dismissal having been given orally at the hearing and written reasons having been asked for by Mr McMillan on behalf the claimant at the hearing in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:REASONS
[1]This hearing was listed as the final hearing in this case. We were provided by the parties with a bundle of documents and witness statements. Reference below to page numbers are to this bundle.[2]In this claim the claimant claims that she was constructively and unfairly dismissed from her role as a support worker with the respondent. The respondent provides supported living services, including accommodation, to vulnerable adults .[3]The claimant claims that her dismissal was automatically unfair, under section 103A Employment Rights Act 1996. She also brings various complaints that(1) she was subjected to 17 detriments on various dates between (according to the List of issues) 29 November 2021 and 2 September 2022;(2) there were unauthorised deductions from her wages up to and including 5 October 2022.[4]The claimant commenced ACAS early conciliation on 2 December 2022 and presented her claim on 12 February 2023.[5]According to the claim form, the date the claimant’s employment ended was 5 October 2022. According to the response form the employment end date was 2 September 2022. Determination of preliminary issue[6]At the second of 2 preliminary hearings held for case management purposes on 7 May 2024, a potentially significant time limit issue was discussed. This related to the date that the employment ended. The Judge’s summary of that hearing noted that, had there been more time between that hearing and the final hearing, she would have considered listing this case for a public preliminary hearing to determine whether the complaints had been brought in time. The summary also noted that the respondent had been proceeding on the assumption that issue would be determined at the final hearing.[7]The judge’s summary went on to note that: Depending on the complexity of the evidence involved, the respondent may wish to invite the Tribunal at the final hearing to determine the time limit point first. It will, of course, be up to that Tribunal whether they agree to proceed in that way.[8]At the start of this hearing Mrs Afriyie for the respondent asked us to determine the time limit point as a preliminary issue. Mr McMillan for the claimant resisted that application, submitting that we should hear the evidence on all complaints and issues before reaching a decision on the time limit point at the same time as the other issues.[9]We decided to deal with the time limit point as a discrete issue. The evidence about this was self-contained; depending on our decision on the point, it may provide a final outcome to the unfair dismissal complaints and, subject to one discussion point around date of payment of wages, may provide a final outcome to all of the detriment complaints.[10]We needed to decide:a. Whether the claimant’s employment ended on 2 September 2022 or 5 October 2022.b. If the claimant’s employment ended on 2 September 2022, whether ( for the purposes of section 111(2) Employment Rights Act 1996 (ERA) it was reasonably practicable for the claimant to have presented her claim in time.[11]We also noted:-a. that decision would potentially impact the other types of complaint raised given that sections 48(3) ERA (relating to detriment complaints) and 23(2) (unauthorised deductions complaints) set out the same requirements about when a claimant has to present a claim..b. That the effect of legislation relating to ACAS early conciliation was to require a claimant to commence ACAS early conciliation within the time limits set out in section 111(3); 48(3).[12]We noted that one of the more recent unauthorised deductions referred to a detriment on 31 August 2022. We queried whether that date might be incorrect and whether it should be 5 September 2022 which would potentially bring the complaint about that detriment in time and possibly therefore other detriments given the potential of there being a series of similar acts or failures. The discussion on that point did not conclude at that stage of the hearing. It continued after we gave this judgment and is referred to separately in a case management order. Relevant Law Time Limits – ERA.Relevant Law
[13]Section 111(2) of the ERA provides that a complaint of unfair dismissal must be “presented to the Tribunal –a. Before the end of the period of three months beginning with the effective date of termination, orb. 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.[14]Section 23(2) ERA applies the same time limit requirements to complaints of unlawful deductions from wages.[15]Section 48(3) ERA (relating to complaints of being subjected to a detriment) provides that an Employment Tribunal shall not consider a detriment complaint unless it is presented “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..”[16]Section 18A(8) of the Employment Tribunals Act 1996 prohibits an individual who wants to commence “relevant proceedings” in the tribunal , to do so unless that person has gone through the ACAS early conciliation process and obtained a certificate.[17]Section 207B of the ERA extends the time limits at s111(2) to take account of the statutory requirement for early conciliation, but only where the claimant has contacted ACAS within those time limits. There are comparable provisions relating to complaints of unauthorised deductions and detriment complaints.[18]The term reasonably practicable means neither “reasonable”, nor “something that is physically capable of being done”. The term means somewhere between these 2 ( see Palmer v Southend on Sea BC 1984 IRLR 119). I also note the following from paragraph 35 of Palmer: What, however, is abundantly clear on all the authorities is that the answer to the relevant question is pre-eminently an issue of fact for the Industrial Tribunal and that it is seldom that an appeal from its decision will lie. Dependent upon the circumstances of the particular case, an Industrial Tribunal may wish to consider the manner in which and reason for which the employee was dismissed, including the extent to which, if at all, the employer's conciliatory appeals machinery has been used. It will no doubt investigate what was the substantial cause of the employee's failure to comply with the statutory time limit; whether he had been physically prevented from complying with the limitation period, for instance by illness or a postal strike, or something similar. It may be relevant for the Industrial Tribunal to investigate whether at the time when he was dismissed, and if not then when thereafter, he knew that he had the right to complain that he had been unfairly dismissed; in some cases, the Tribunal may have to consider whether there has been any misrepresentation about any relevant matter by the employer to the employee. It will frequently be necessary for it to know whether the employee was being advised at any material time and, if so, by whom; of the extent of the advisors' knowledge of the facts of the employee's case; and of the nature of any advice which they may have given to him. In any event it will probably be relevant in most cases for the Industrial Tribunal to ask itself whether there has been any substantial fault on the part of the employee or his advisor which has led to the failure to comply with the statutory time limit. Any list of possible relevant considerations, however, cannot be exhaustive and, as we have stressed, at the end of the day the matter is one of fact for the Industrial Tribunal taking all the circumstances of the given case into account.[19]In Walls Meat Co Ltd v. Khan [1978] IRLR 499 the Court of Appeal distinguished between circumstances where a claimant was entirely ignorant of their employment rights and therefore their ability to bring a claim and those where a claimant knew of their right to bring an employment claim but not making enquiries as to how and within what period the claim should be presented.[20]In his submissions, Mr McMillan referred us to various other authorities, none of which were contrary to 2 of the leading authorities in this area referred to above and which were really cases that turned on their own facts. Cases relevant to submissions about Termination Date[21]In his submissions, Mr McMillan referred to us to the decision in Holland v. Glendale [1998] ICR 493 to support a position that a constructive dismissal resignation was not effective until the reasons for resignation were provided. This decision does not appear to be authority for a delay in providing reasons, resulting in a delay to the date of termination of employment itself. Rather it required an employee to have communicated to the employer, the reasons for leaving – and to have done so at the time of leaving – in order to be able to advance a constructive dismissal claim. But this has since been overruled. Evidence considered.[22]We first heard evidence from the claimant and then from Amanda Wood, a manager employed by the respondent.[23]The evidence given by both at this stage was limited to the time limit issue.[24]We also considered documents in the bundle but limited to those relevant to the time limit issue. What the pleadings and preliminary hearing documents say about the termination date.[25]The detail provided in the claim form about the termination date is limited to the date of 5 October 2022 added on the claim form at part 5.1 (the part which asks claimants to put their start and end dates). The document which was attached to the claim form and on which the claimant sets out some details about what her claim is about, makes no reference to it.[26]The response form notes, at part 4 (the part where respondents are asked to say whether the dates of employment given by the claimant are correct) that they did not agree with the claimant’s stated employment dates and that her employment ended on 2 September 2024.[27]The summary of the preliminary hearing on 31 May 2023 noted as follows:- There may be a time limits issue. The claimant said in her claim form (ET1) she was dismissed on 5 October 2022. She is unable to confirm today whether that was verbally or in writing or with/without giving notice. The respondent says the claimant resigned without giving notice on 2 September 2022 but could not confirm whether that was verbally or in writing. The claim was presented on 13 February 2023. The claimant went to ACAS on 2 December 2022 and the Certificate was issued on 13 January 2023.”[28]Following this hearing more information was provided by the parties:-[29]The claimant provided a document “claimant’s updated response to request for additional information dated 26 September 2023.” That dealt with the resignation as follows:- “ 1. RESIGNATION 1.1. The claimant resigned on 02.09.2022. 1.2. She resigned by email to Amanda Wood. 1.3. She did not give notice but was confused by subsequent written correspondence from R which led her to believe that her employment was not terminated until 05.10.2022, more specifically a letter from Ms Wood dated 05.10.2022 which stated that C’s last day of service was 05.10.2022.[30]The respondent provided an amended response which included the following:- The Claimant provided further and better particulars in which she claimed she received a letter from the Respondent dated 05.10.22 which stated that her last day of service was 05.10.2022. The claimant has been asked to produce a copy of this correspondence, to date she has not been able to provide the said correspondence. The Respondent has however produced emails that were sent to the claimant following her resignation. The 1st email was sent on 06.09.2022 asking the claimant to reconsider her decision to resign. The 2nd email was sent on 14.09.2022 accepting the resignation and confirming the claimant’s last day of service as 02.09.2022. The Respondent maintains that the claimant’s claims are out of time and therefore the Tribunal does not have jurisdiction to hear the claims.Findings of Fact
[31]On 2 September 2022 the claimant submitted her resignation. A couple of days before this (on 31 August 2022) the claimant had sent the respondent a long email raising various complaints and allegations about an investigation, stating her refusal to attend a meeting in person and insisting instead on an online meeting. She sent the relevant manager at the respondent ( Amanda Wood) an online (Zoom) invitation and said she expected her to attend.[32]Amanda Wood did not attend the Zoom meeting that the claimant had set up. Further, between her email of 31 August and 2 September, the claimant had received an email from Amanda Wood that included various allegations made against the claimant.[33]The claimant emailed Amanda Wood at 22.59 on 2 September - Dear Amanda, You did not turn up to my Zoom invite for the investigation meeting to take place today @ 11:00. I feel that you have wasted my time. I hereby tender my resignation with immediate effect. I do not have time to reply to your email at present however Prosupport will receive my full response outlining the reasons for my resignation within the next 7 days.[34]Amanda Wood replied on 6 September 2022. She did so with the benefit of advice from external HR providers called Peninsula. In that reply, she raised the possibility that the claimant may have resigned in the heat of the moment and asked whether the claimant really wanted to resign. She asked the claimant to let her know by 13 September whether she wanted to reconsider the decision to resign, also noting that if she did not retract the resignation then the respondent would respect the claimant’s decision and process the termination of employment.[35]In cross examination, Amanda Wood was asked what she thought the claimant’s employment position was at that stage – i.e. as at 6 September 2022. Her reply was that she thought that the employment was still continuing until she heard from the claimant.[36]The claimant did not respond to the respondent’s email of 6 September 2022. By email dated 14 September 2022 (page 491) and timed at 13.01 Amanda Wood emailed the claimant to say that the respondent accepted her resignation and that her last day of service was 2 September 2022. The email instructed the claimant to return all property, keys and the like by 20 September 2022. The email also informed the claimant that she would get her final pay on the next normal pay date run on 30 September 2022 and that her P45 would be delivered to her home address under separate cover.[37]The respondent sent a letter (p493) in exactly the same terms as that email of 14 September 2022. This was sent by post to the claimant’s home address. Amanda Wood’s evidence ( which we accept) was that it would have been sent by a signed for letter as that is the practice of the respondents. We also accept Amanda Wood’s evidence that she took the letter to the post office to arrange for signed for delivery.[38]The claimant accepts that she received both email and letter.[39]On 29 September 2022 the respondent sent 2 emails to the claimant. These were sent to the claimant’s personal email address. One email attached her payslip and the other attached her P45. We comment on each of these documents:-a. The P45 has a section to add the Leaving Date. This was completed with the date of 2 September 2022. That date is of course consistent with what the claimant had been told on 14 September, and perhaps more importantly, consistent with the date that the claimant told the respondent she resigned.b. The Payslip does not state a leaving date. However the information in there is indication that the claimant’s employment was at an end. The only payments made on that payslip for September are for accrued untaken holidays and an income tax refund.[40]The respondent pays its employees monthly. They pay at the end of a month for the whole of that month. The payslips themselves are dated 5 of the following month.[41]As at 29 September 2022 therefore – being the date when the P45 was delivered – there was no doubt that the claimant’s employment was at an end. As for the actual termination date – for reasons which we explain below, we have concluded that was 2 September 2022. That is of course what the P45 said and is consistent with the information set out in the payslip and with the actions of the parties.[42]We need to make a finding of fact about a letter dated 5 October 2022 which is in the bundle of documents. This letter is (or purports to be) on the respondent’s letter headed paper. It states “Further to your resignation letter on 2 September 2022 I am writing to confirm that the company accepts your resignation. Your last day of service will be 5th October 2022 given the conclusion of our investigation.” The rest of the letter then mirrors closely the final 3 paragraphs of the letter sent to the claimant and dated 14 September 2022. The last paragraph or sentence is “Please find your September pay attached.” .[43]The letter is then signed (or purported to be signed) by Amanda Wood. Her printed name and a signature appears.[44]According to the claimant she received this letter in the post on a date after 5 October 2022.[45]According to Amanda Wood she does not know where the claimant obtained this letter. This is what her witness statement says “I did not send another letter to (The claimant) after 14/09/2022/. I do not know where she got that letter from but it was definitely not from me.” In the course of her evidence and the respondent’s presentation of its case at this hearing it was made clear that the respondent alleges that the claimant must have made this letter up, using some notepaper or a copy of the respondent’s notepaper. It was pretty clear to us that was what the respondent’s position was before we heard the evidence. That is what Amanda Wood was heavily hinting at in her statement.[46]There is no email equivalent to (or confirmation of) the letter.[47]The claimant attended the Tribunal with what she says is the original letter. Mr McMillan provided this to us and we were invited to review this as part of our fact-finding process.[48]We need to make a finding about whether the respondent sent the claimant a letter dated 5 October 2022 as claimed. Our findings are ones of fact on a balance of probabilities.[49]We find that there was not a letter dated 5 October 2022 sent by the respondent and received by the claimant. The letter provided is not genuine. It has been manufactured by or for the claimant in an attempt to support her case.[50]This was not an easy decision for us but, having considered all of the evidence that is what we conclude applying the balance of probabilities test.[51]These are our reasons.a. We accept the evidence of Amanda Wood that she had no knowledge of the letter, that she did not sign the letter or send the letter. Having considered her account, together with the other factors that we refer to below, we believe her.b. We have considered Amanda Wood’s evidence that the correspondence relevant to the claimant was drafted with significant assistance by HR Professionals (Peninsula). The correspondence we have seen – particularly 6 and 14 September 2022, is carefully drafted. Most of the letter dated 5 October is also carefully drafted (because most of it is in the same terms as the correspondence of 14 September 2022). 2 sentences that particularly strike us are ones that do not appear in the letter dated 14 September 2022. i. A sentence that reads as follows: “Your last day of service will be 5 October 2022 given the conclusion of our investigation.” Yet(1) an outcome of the claimant’s resignation was that the investigation did not continue (we accept that evidence provided by Amanda Wood);(2) even if an investigation did conclude, the timing of that is irrelevant to the date of the claimant’s resignation. In the context of this case, the sentence makes no sense. It makes us doubt that the letter is genuine. ii. The final sentence. “Please find your September pay attached.” there was no attachment to the original that we were provided. The claimant has not told us that any money was sent with the letter. We understand this to be a reference to the payslip. Yet the payslip was sent to the claimant by email of 29 September referred to above. We also accept Amanda Wood’s evidence that she did not become involved in salary payments and payroll. Again, it makes us doubt that the letter genuinely came from the respondent.c. We find that the reference is made to the payslip because it is that document that has a date on it of 5 October 2022. Identifying that date ( the same as the date appearing on the payslip) was an attempt to give credibility to the letter.d. The format of the letter. We have (because were invited to) reviewed the original letter. The type is not straight on the letter. There is also a feint grey line on the original provided which does not appear on other correspondence. It is a poor specimen when compared with other example correspondence provided. We are not experienced at identifying whether or not a document is genuine. But we have been invited by both parties to view the original and we have heard submissions from both representatives about the appearance of the letter. The appearance of the document provided, is consistent with it not being genuine. That is not the only (or even the principal) reason that we do not accept the claimant’s evidence about this letter. It is part of the overall picture. It provides some support to our decision.e. Absence of response from the claimant. The actions of the parties and the documents had confirmed a resignation date of 2 September 2022. Had a letter been received referencing 5 October 2022 this would have prompted a response from the Claimant. If the termination date was on 5 October why was she not getting any money for September? That would have meant that she was suspended throughout September and the first 5 days of October. When giving her evidence the claimant’s response to not having raised a question about pay was that she was not a person who paid any real attention to her payslips. We find this evidence to be at odds with her document she sent to the respondent on 31 August 2022 and particularly at page 485. In this document the claimant references (and complains about) a deduction from her pay for August 2022 – even though she must just that day or a day or 2 before, have received the relevant payslip.f. Correspondence concerning the claimant and being sent by the respondent (Amanda Wood) at this stage was being reviewed by and drafted with help from HR professionals (Peninsula, who represents the respondent in these proceedings). Amanda Wood’s evidence ( which we accept) was that she was working with the HR professionals and correspondence was being drafted by them with input from Amanda Wood. It is in our view unlikely that a letter sent by the respondent relating to this claimant was not retained on a file. It is even less likely that that a copy of a document that was sent (or the last draft) was not retained on Peninsula’s file.g. Unlike other correspondence at this time, the letter that the claimant says was sent to her was not emailed. Other correspondence was sent by email or, where sent by post, was confirmed by email (the letter of 14 September 2022). We find it very unlikely that the respondent would only have posted a letter. The narrative of only having received a letter by post, means that an attempt to evidence this can be made by providing a paper document.[52]It is also important to note something we decided not to take in to account. We heard evidence and submissions about the signature that appears on the letter of 5 October 2022. Amanda Wood is adamant that the signature is not hers. We observe that the signature is similar to other signatures we have been asked to compare it with. We also accept Amanda Wood’s evidence about there being some differences. We are not however handwriting experts and have had no report from a handwriting expert. We decided that we should not take in to account evidence and arguments raised by the parties relating to the signature that appears. Claimant’s knowledge of time limits.[53]Prior to and at the time her employment ended, the claimant was receiving support from a trade union called Empower although her evidence is that she did not have representation or legal advice at the time she contacted ACAS. She has not provided any evidence that this assistance was no longer available to her.[54]The claimant’s evidence is that she made contact with ACAS without the need for representation or legal advice. She did this on 2 December 2022.[55]Finally, we note the terms of the claimant’s correspondence dated 6 September 2022 (page 492) – a letter which the claimant sent to the respondent giving reasons for her resignation – included the following line: “I will look to pursue this matter at the employment tribunal.” Conclusions Was it reasonably practicable for the claimant to have presented her claim in time by commencing the ACAS Early Conciliation process within 3 months of the date her employment ended?Conclusions
[56]Having made findings of fact that(1) the termination date was 2 September 2022 and;(2) the claimant did not receive a letter from the respondent dated 5 October 2022; we need to decide whether it was reasonably practicable for the claimant to have brought her claim in time.[57]These findings of fact do not support the claimant’s position that(1) her employment ended on 5 October 2022 or,(2) if it did not, the letter of 5 October 2022 confused her.[58]If the claimant was not actually aware of the applicable time limit, it was reasonably practicable for her to have been aware. She had the benefit of union representation. According to her own evidence, she was capable of making contact with ACAS without representation of advice. We did consider whether it was possible that she may not have known that the 3 months ran from 2 September to 1 December (rather than 2 December – when she started ACAS Early Conciliation) given that the claimant contacted ACAS only one day late, but:a. this is something that was reasonably practicable for her to find out.b. she has not given any such evidence Our conclusions in the alternative – assuming the claimant received the letter dated 5 October 2022[59]We also considered the position on the basis that our conclusion about the letter of 5 October 2022 was wrong; that the claimant had received the letter as she alleges.[60]The letter had no impact on the date that the claimant’s employment ended. It had already terminated on 2 September 2022. The respondent had provided correspondence and documents to confirm this date – on 14 and 29 September 2022.[61]The claimant’s employment terminated on 2 September 2022 because that is what the claimant decided to do. She terminated her employment with immediate effect.[62]We have considered what impact the letter of 6 September 2022 had on the date of termination of employment particularly given the questions put by Mr McMillan and the answers provided by Amanda Wood. We find it had no impact. That letter offered the claimant an opportunity to reconsider her position. She decided not to. She had resigned on 2 September and her decision not to respond to the letter of 6 September 2022 confirmed that is what she did. Amanda Wood’s responses to questions from Mr McMillan and the Tribunal can be summarised as follows:-a. She thought the claimant’s employment was continuing when she wrote the letter butb. the claimant’s absence of a response meant that she had confirmed her resignation on 2 September.[63]We conclude that the position was more straightforward than this.a. The claimant resigned on 2 September with immediate effect.b. She was given an opportunity to change her mind; to reflect whether she may have acted too hastily, in the heat of the moment.c. She did not want that opportunity. The position – resignation with immediate effect on 2 September 2022, was therefore confirmed.[64]We do not accept the claimant’s evidence that, having resigned, she expected to be told that she would have to serve notice and that the words – with immediate effect - were something of a gesture because she had heard them on TV.[65]In case it was not obvious to the claimant that the date her employment terminated was the date she decided to resign with immediate effect, this was confirmed to her on 3 occasions – email of 14 September; letter of 14 September and then the P45.[66]The letter of 5 October 2022 – assuming genuine – was an outlier to what had already happened. It did not change the termination date. It was obvious that it did not change the termination date. It was at odds with everything else that both parties had said and done. When considering all actions and documents together, it was obvious that the termination date was 2 September 2022 and that the date stated in this letter was an error.[67]The claimant knew about the time limits applicable, that she needed to commence ACAS early conciliation within 3 months of the termination date. It was reasonably practicable for her to have done this. She asks us to believe that, knowing the time limit applicable, she decided to ignore the possibility that her employment ended on 2 September 2022 and decide instead to throw all in to the date stated on the letter of 5 October for the sake of being able to contact ACAS one day later than she had to.[68]Whilst she decided not to contact ACAS until 2 December 2022, it reasonably practicable for her to contact ACAS on 1 December.Outcome
[69]The claimant’s complaints of unfair dismissal (under sections 98 and 103A) are dismissed as being out of time.[70]The complaints of being subjected to detriments and unauthorized deductions from wages are the subject of further case management.