Mrs T Bennett v Smartway Health and Social Care Ltd: 2406244/2019

EMPLOYMENT TRIBUNALS

Case No 2406244/2019

Between

Mrs T BennettClaimant

Smartway Health and Social Care LtdRespondent

Before

Employment Judge Phil Allen

In person for claimant

Date 18 October 2019

JUDGMENT

The Judgment of the Tribunal is that: The claimant’s claim for unfair dismissal is not well-founded and does not succeed.

REASONS

[1]This was a claim of unfair dismissal by the claimant. The ET1 was entered on 17 June 2019 following ACAS early conciliation between 2 May and 1 June 2019. The claimant represented herself. Mr Fuller, consultant, represented the respondent.

[2]The Tribunal heard evidence from the claimant and from Mr Talat Javid of the respondent. It was also provided with a statement by Mr Wayne Critchley of the respondent, but as he did not attend the hearing his statement was given little weight.

[3]The Tribunal was provided with a 103 page bundle which included the claimant's contract of employment but did not include any procedures, albeit it is Case No. 2406244/2019 2 understood that the respondent does have procedures including a disciplinary procedure.

The Issues

[4]In terms of the issues to be determined, these were agreed at the outset of the case. The issues were the following:(1) Was the claimant dismissed?

(2) Did the respondent breach the duty of trust and confidence, that is did it without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence?

(3) If so, did the claimant affirm the contract before resigning? - Although in the course of the hearing this was accepted as not being an issue.

(4) If not, did the claimant resign in response to the respondent’s conduct?

(5) The respondent submitted that if the claimant was dismissed it was for a fair reason, namely conduct, and the Tribunal would need to consider whether it was fair in all the circumstances.

(6) If unfair, would the claimant still have been dismissed had a fair and reasonable procedure been followed anyway? When and to what extent?

(7) Did the claimant by blameworthy or culpable actions cause or contribute to her dismissal? If so, to what extent?

Findings of Fact

[5]The claimant was employed by the respondent as the respondent’s Registered Manager from 17 March 2017 until 8 April 2019. This was a very responsible position, indeed the claimant was responsible under the respondent’s CQC registration. The claimant is a very experienced Registered Care Manager.

[6]In March 2019 Mr Talat Javid undertook a check on the claims made by the claimant for additional payments, over and above her core salary, for February 2019. Mr Javid told the Tribunal that he did this because the person who usually dealt with payroll was on holiday. He checked the paperwork because he thought it should be and it was a claim for quite a lot of additional payment. The claimant was claiming £281.25 in addition to her normal pay, based on 32.25 hours at the appropriate rate.

[7]In evidence Mr Javid detailed what he identified, the details of which are not really in dispute. On four occasions involving two other care workers the claimant had claimed for calls which she had not undertaken. On a significant number of occasions, the claimant had claimed for calls undertaken for hours which fell during her core working hours. On a couple of occasions, the claimant had claimed for calls Case No. 2406244/2019 3 for which there appeared to be no record to support the visit that had been undertaken.

[8]On 8 April 2019, upon her attendance at work, the claimant was asked to attend a meeting with Mr Javid and Mr Critchley. The meeting lasted for approximately half an hour. Mr Javid had some documents with him at the meeting evidencing what he had identified, although there was a difference in the evidence about the amount of documentation available and how much detail was looked at in the meeting. In her letter of 7 May 2019 the claimant describes Mr Javid as having a “bundle of evidence”, suggesting that he had the set of documents about the additional payment claims to which the tribunal were referred (or at least a bundle similar to it).

[9]At the end of the meeting the claimant decided to resign. She left the meeting and, about ten minutes later according to her own evidence, she sent her letter of resignation which gave no reason for her resignation (page 82). She also emailed notification to the CQC before leaving the premises.

[10]Following the end of her employment, the claimant wrote to the respondent on 10 April 2019 raising a complaint about these events (pages 86-87). A response was produced on 15 April confirming that it was the respondent’s view that the claimant had resigned (pages 88-89). The claimant responded in a letter of 7 May (pages 90-91). She was paid in lieu of one month’s notice. The claims for additional payments

[11]There was a dispute about many of the claims for additional payments made by the claimant and whether these were due to be paid.

[12]The claimant told the Tribunal that Mr Javid had agreed in a meeting a year before that she could claim for calls undertaken during the working day in return for not claiming for the extensive out of hours work which she undertook. The claimant placed great emphasis on computer records which showed the hours that she worked, or at least the hours in which she was on the computer system. It was very clear that in the claimant's view the amount that she claimed as additional pay, was for considerably less than the amount to which she believed she was actually due for the additional hours she actually worked. Mr Javid’s evidence was that there was no such agreement.

[13]The Tribunal had no doubt that the claimant considered that it was appropriate to claim for the hours that she did. However, there was no other evidence to support the existence of any agreement. The way the claimant calculated her hours was clearly directly referable to calls undertaken, and it seemed to the Tribunal to be an unusual agreement for this to be recorded and claimed in this way, with payment being made on what was clearly an inaccurate basis.

[14]The claimant accepted that she did not check in a month whether the hours claimed exceeded that to which she would have been entitled based upon her own record of additional hours undertaken. In respect of that record, the respondent Case No. 2406244/2019 4 emphasised that a record of computer use did not necessarily show the additional hours worked in any event.

[15]Neither of the claimant's emails/letters of 10 April or 7 May 2019 made reference to such an agreement. The tribunal thought they would have done if an agreement had existed. The wording of the 10 April letter (page 86) was determined to be, in the view of the Tribunal, indicative of the claimant arguing her position based upon the extra hours undertaken not based upon an express agreement. This documentation was considered to be the most persuasive evidence that no such agreement existed. Accordingly, the Tribunal found there was no such agreement.

[16]For four of the calls claimed, it was not in dispute that they were not undertaken by the claimant. The respondent submitted that the claimant did not check carefully enough and an experienced manager should not have made such claims. The claimant described them as a mistake which she would have repaid. Mr Javid recounts these as being identified in the meeting, although the claimant does not say that they were discussed in that meeting.

[17]What these findings mean is that the respondent had reasonable and proper cause to raise these issues with the claimant and to ask her to explain them. The 8 April meeting

[18]There is a difference in evidence between Mr Javid and the claimant as to what was said in the meeting. The claimant alleged that she was told that it would be better if she handed in her notice and left, something which was repeated to her. However she provides no other explanation of what was said.

[19]Mr Javid’s statement provided a relatively lengthy account of what was said in the meeting. He said that Mr Critchley commenced the meeting by explaining that it was not a disciplinary hearing, but it was to ask about the anomalies. Mr Javid said he went through the additional payment claims. The claimant acknowledged some of them were incorrect, asked if the respondent wanted to sack her or wanted her to resign, but was told that the outcome was not a decision for the attendees to make (although it was explained that the concerns would need to be formally addressed if the claimant did not wish to resign).

[20]The Tribunal noted the length of the meeting, which suggested a longer discussion than that explained in the claimant's own account. The meeting described in the claimant’s statement would have lasted only a few minutes at most, which is not consistent with the agreed length of it.

[21]Understandably, the claimant has in evidence described herself as being in absolute total shock in the meeting, and it being so unexpected that she went into melt down and everything was muddled in her head. This does not suggest that she would have a clear recollection of what was said.

[22]For these reasons the Tribunal preferred the account of the meeting given by Mr Javid. Case No. 2406244/2019 5

[23]Whilst the claimant's evidence was that Mr Javid first referred to resignation, the Tribunal accepted Mr Javid’s evidence that the claimant was the first person to raise resignation; that she was told that it was not the decision of those in the meeting to make; and that they subsequently accepted the claimant's offer to resign. The Tribunal noted that it could see why resignation without going through a full process was a sensible course for the claimant (particularly in the light of her CQC regulated position). Pre-determined process?

[24]Mr Javid’s evidence was that had a disciplinary process been required, the outcome of it would not have been his decision. The fact that his view was that he thought that the evidence showed the claimant was 100% at fault, did not therefore predetermine the outcome of the process (which was ultimately not required because of the claimant’s resignation).

The Law

[25]It is for the Tribunal to decide based upon the actions of the parties and what was said, whether the claimant was dismissed. For there to be a dismissal, the employer must communicate to the employee that it is terminating the contract under which the employee is employed. The communication may be expressly in words (whether oral or written) or it may be by words or deeds which convey that the employer is dismissing. That must be a dismissal on an unambiguously ascertainable date. Whether such a communication amounts to a communication that the contract is being terminated, must be determined by the Tribunal in the light of the wider context and all the facts of the particular case. It is to be judged by how the words or conduct would be understood by the objective observer.

[26]The Tribunal was referred to the case of Martin v MBS Fastenings (Glynwed) Distribution Ltd

1983 IRLR 198

. That case was clear authority for identifying what needed to be decided in looking at whether the claimant was dismissed. The question the Tribunal needed to ask itself is: who really terminated the contract of employment? It is also an example of a case where an Employment Tribunal was able, and indeed right, to find that an employee resigned even where it had been suggested to that employee that it may be in their interest to do so, but the dismissal in that case was not certain. The question of whether the conduct of the employer caused the employee to leave is one of fact for the Tribunal.

[27]The relevant statute in a constructive dismissal case is found at Section 95(1)(c) of the Employment Rights Act 1996 “an employee is dismissed by his employer if .. 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”.

[28]The Tribunal was referred to the familiar cases of Western Excavating v Sharp

1978 All ER 713

where Lord Denning stated “if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of Case No. 2406244/2019 6 the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed”.

[29]The claimant relied on a breach of the implied duty of trust and confidence. In Malik –v- BCCI HL

1997 ICR 606

it was stated “an employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. In determining whether the respondent has acted in such a way so as to breach the implied term of trust and confidence the Tribunal is to apply an objective test. In Courtaulds Northern Textiles Limited –v- Andrew

1979 IRLR 84

Browne/Wilkinson J stated “to constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it”. In Western Excavating –v- Sharp it was established that there must be a fundamental breach of contract. In Morrow –v- Safeway Stores Plc

2002 IRLR 9

, it was established that the breach of the implied term of trust and confidence is inevitably fundamental. However conduct which destroys trust and confidence is not in breach of contract if there is a reasonable cause. Discussion and analysis

[30]Applying the law to the findings of fact results in a conclusion that the claimant was not dismissed. The claimant resigned. The respondent did not communicate to the claimant that she was dismissed. The claimant terminated the contract.

[31]It was entirely appropriate for the respondent to sit down with the claimant and to ask her to explain what had been identified in the review of her claims for additional payments. Whatever would have been the outcome of that process, there were discrepancies which it was appropriate to address with her. As confirmed in the findings of fact, the claimant first raised the issue of resignation in this meeting and subsequently chose to resign. She was not dismissed.

[32]The respondent did not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence. The respondent was able to hold the meeting of 8 April and it was appropriate to do so (there was proper cause to do so whatever might have been the outcome of any process, informal or formal). It was reasonable for the respondent to acknowledge that there may be a disciplinary process if the concerns were to proceed. It would certainly have been preferable if the meeting had been noted and the outcome better documented, but that of itself does not amount to a fundamental breach of contract.

[33]As the Tribunal concluded that there was neither a dismissal nor a breach of the duty of trust and confidence by the respondent, it did not need to go on to reach a conclusion on the other issues (issues 4-7). Case No. 2406244/2019 7

Conclusion

[34]For the reasons confirmed above, the Tribunal’s Judgment was that the claim for unfair dismissal was not well-founded and did not succeed.