Miss M Singh v Mersey Care NHS Foundation Trust: 2410501/2019
JUDGMENT
[1]The unanimous judgment of the Tribunal is that the claims for constructive unfair dismissal and the breach of section 15 of the Equality Act 2010 both fail and are consequently dismissed. JUDGMENT[2]The unanimous judgement of the Tribunal is that the claimant’s claims for constructive unfair dismissal and for breach of Section 15 Equality Act 2010 both fail and are consequently dismissed.REASONS
[1]The claims before the Tribunal relate to the claimant’s claim for constructive unfair dismissal and a claim that the respondent had been in breach of section 15 Equality Act 2010 on the basis that the officers of the respondent Trust (the Trust) treated the claimant unfavourably because of “something” arising in consequence of the claimant’s disability.[2]The Trust have conceded that the claimant is disabled within the meaning of Section 6 of the 2010 Act on the basis that her condition predisposes her to stomach and breast cancer and she has had a number of procedures since 2011 dealing with those issues beginning with a total gastrectomy and then a double mastectomy and further surgery in December 2018.The Issues
[3]The issues before the Tribunal were:(1) Did the claimant resign in circumstances in which she was entitled to terminate her contract by reason of the respondent’s conduct on the basis that the conduct of Mr Drew and Ms King was conduct which was calculated or likely to destroy the relationship between the parties and a breach of the implied term of trust and confidence? The final straw relied on by the claimant is the last act or omission of poor conduct sufficient to allow the claimant to resign and claim constructive unfair dismissal. The last straw does not have to be a breach of contract itself but has to be a part of the conduct.(2) If the last straw itself is not part of the repudiatory breach of the contract, was it nevertheless a part of a course of conduct which viewed cumulatively amounted to a repudiatory breach of the implied term of trust and confidence?(3) Did the claimant resign in response or partly in response to it?(4) With regard to the discrimination arising from disability claim, did the respondent, during the period from February to the end of May 2019 (the period relied upon by the claimant), discriminate against the claimant by treating her unfavourably because of something arising in consequence of the disability and if so, can the respondent rely on a justification defence by showing that the treatment in question is a proportionate means of achieving a legitimate aim?The Applicable Law
[4]A constructive dismissal occurs when an act or omission or a series of act or omissions by the respondent or its employees causes an employee to resign.[5]If so, did the act or omission or series of acts or omissions by the respondent amount to a fundamental breach of contract?[6]If so, has the claimant affirmed the contract following the breach?[7]If the above are made out by the claimant then the claimant will have been constructively dismissed and the respondent then has to show the reason for dismissal and whether that reason for dismissal was a potentially fair one and show the respondent acted reasonably overall. If that cannot be shown then the claim for unfair dismissal succeeds.[8]Where a claimant relies on a last straw after a series of conduct then the last straw can be relatively insignificant but it must not be utterly trivial. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence and the final straw does not have to be unreasonable or blameworthy conduct although it may often is. However, an entirely innocuous act on the part of the employer can never be a final straw even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in their employer. The test of whether the employee’s trust and confidence has been undermined is an objective one.[9]With regard to the section 15 claim we must decide and consider the following:(i) The unfavourable treatment must be identified.(ii) Once that treatment has been identified the tribunal should then go on to decide what caused the unfavourable treatment. In other words what was the “something” contained in the section. The focus must be on the reason in the mind of the respondent’s managers. It does not have to be the sole or main cause of the unfavourable treatment but it must have a significant influence on it.(iii) The Tribunal then has to consider whether it was “something” arising in consequence of the claimant’s disability.(iv) There may be more than one link in the chain of causation between the “something” and the disability. However, if there is more than one causal link between something and the disability, the harder it is for the claimant to establish the required connection.(v) That question is one of objective fact which must be robustly assessed by the tribunal in each case.[10]The burden of proof in a constructive unfair dismissal is upon the employee to show that the employer has fundamentally breached their contract of employment. This is a relatively high burden to overcome.[11]With regard to the section 15 claim, if there are facts from which the tribunal could decide in the absence of any explanation that the respondent contravened the provision that the respondent must not discriminate against the claimant, the tribunal must hold that the contravention occurred unless the respondent can show that they did not contravene the provision. The claimant must show the detrimental action relied upon and that the respondent had the knowledge that the claimant was disabled.The Facts
[12]The claimant was employed by Lancashire Care NHS Foundation Trust until this respondent took over the work and the claimant was Tupe’d over to this employer in April 2018.[13]The claimant was employed from 18 October 2016. She was on sickness absence from 21 May 2019. She handed in her notice on 17 June 2019 which expired on 12 July 2019 which was her effective date of termination. On 20 May she informed Mr Drew that, although she had another job to go to, she wished to stay employed by this respondent.[14]The claimant was a Band 3 mental health administrative support officer and she worked in the same office, during 2019, as the two other support officers namely Kelley Maloney and Georgia Bulloch. They were also Band 3. The line manager for the three employees was Stephanie King. She had been appointed as line manager in October 2018. There were a number of issues for the Trust when it took over the work in April 2018 which needed to be dealt with and were pressing. Both Mr Drew and Ms King felt that there was a requirement for three members in the administration team, enough work for all three and that the work would increase and expand overtime. Since the claimant resigned she has been replaced and there are still, at this time, three members of the administration team.[15]Before the claimant left for her surgery in December 2018 there had been one issue between Ms Maloney and the claimant. The claimant complained that when she had returned from her surgery in August 2018 Kelley was not pleased to see her. However, the real issues between Kelley and Georgia on the one hand and the claimant on the other, became significant when the claimant returned to work after her December surgery on Monday 18 February 2019. That is the period we were invited to focus upon.[16]On 24 January 2019 the claimant had had lunch with Mr Drew. She says that she was promised a Band 4 post by Mr Drew. He told us that it was not within his gift to promise such a post. We find that no such position was promised to the claimant. The claimant did not cross examine Mr Drew on the point but we accept, as Mr Drew explained to us, that a manager could not promise another employee a post which, firstly did not exist at that point and, secondly without the need to conduct an open and transparent competition process.[17]The claimant returned to work on a phased return work as advised by Occupational Health. She worked on 18 and 25 February, 4, 5 and 6 March. By 12 March 2019 she had been in work for four full days and one half day. This was in line with Occupational Health's advice that the claimant should have a proper phased return to work. The respondent was treating the claimant as disabled and the appropriate adjustments had been put in place. The claimant’s position, throughout the weeks from February to May, was that she was short of work and wanted more to do. Ms King texted the claimant on 25 February and asked her how she had been doing over the day. That was her second day at work and already the claimant was complaining that the workplace was not a good place to be for her. Kelley and Georgia had told her that there was no work for the claimant. The claimant said that she felt uncomfortable in the office and she felt like she was being pushed out of work she would ordinarily do. Ms King responded by suggesting that they would look at things the following Thursday so that everyone had something to do. The claimant’s position was that she wanted to be “involved in everything” in order for her to feel part of the team.[18]By 12 March 2019 (despite only being in work for a few days since her return) the claimant emailed Mr Drew without cc’ing her line manager, Ms King, complaining that she was not being included in work, that she had been without work for the last hour and that Kelley and Georgia had told her there was no work to do. She complained that she was not cc’d into emails herself and complained that she found it difficult to speak to Ms King because she felt that she, Ms King, was close to Kelley. She told Mr Drew there was a temporary trainee psychology post for which she would like to be considered and she also asked if it was possible for her to take “ownership” of mental health transfers and inpatient meetings. The claimant was very anxious to do the high quality work.[19]Both Mr Drew and Ms King knew the claimant was capable of high quality work, was intelligent and could do any work given to her quickly. At this stage, the claimant suggested that the work of the team should be split. Ms King acceded to that request. The claimant was then absent from work on annual leave until she returned on 19 March when there was a mediation meeting set up by Ms King and Mr Drew with the three women in the administration team to see if the difficulties between them could be resolved. Both Ms King and Mr Drew were well aware that there were communication difficulties in this team. Ms Singh did not see this as mediation as there was no trained mediator in attendance but for ease of reference that is what we shall call it.[20]The meeting did not go well, with mutual recriminations between the three women. Georgia felt she was in the middle between Ms Maloney and the claimant and the claimant felt that she was not protected by her managers from some criticism of her by Kelley.[21]During the whole of this period, there were a number of emails which the claimant sent to Mr Drew which were not answered by him but Ms King was endeavouring to deal with the fallout from the disagreements between the three women. She was, after all, the line manager. Mr Drew’s role was more of a strategic one.[22]It took Ms King a little while to organise the separation of work but that was done by 2 April and notes of the mediation session was sent to both the claimant, Ms Maloney and Ms Bulloch on 27 March. Those minutes set out the actions that were required which were as follows:(a) All annual leave should be placed on the calendar.(b) Tasks should be separated.(c) That all three members of the team should email a list of tasks that they would like to take ownership of and that Mr Drew and Ms King would decide who should do what.[23]It was also decided that there would be regular supervision sessions and any concerns should be raised with either Mr Drew or Ms King and not “left to fester”. Although the claimant had said that she wanted to deal with mental health transfers, this work was given, initially, by Ms King to Kelley and Georgia because she felt they could work as a team and it was essential that there was always backup available as this was work which needed to be dealt with as soon as it came in. Ms King asked Kelley and Georgia not to take annual leave at the same time so that those mental health transfers would not be missed. The email sent to the claimant, by Ms King separating the tasks, shows that the claimant had 11 tasks to deal with (although she said in evidence to us that she could only do nine of those) and that six other tasks should be shared between the claimant, Kelley, and Georgia. We assumed that a similar email was sent separately to both Kelley and Georgia. A further email was sent on the same day asking each of the women to cc each other into all work emails. That email stated that, upon reflection, Ms King had decided to place the mental health transfers as a shared task.[24]On 2 April there was a supervision meeting between Ms King and the claimant where the claimant’s concerns were aired and discussed.[25]Throughout this period the claimant emailed both Mr Drew and Ms King and asked for more work. For example, on 2 April the claimant said that, after discussion with Ms King, she wanted to carry out the inpatient meeting every Thursday and to take ownership of inpatient updates, prison to prison handovers, inpatient monthly meetings, discharge complex case meetings, removing patients from the inpatient waiting list and psychology work. And then, the claimant indicated, the rest of the work should be rotated between the three members of the team. The claimant did not hold back from asking for the work that she wanted.[26]The claimant had emailed Ms King on 8 April confirming there were still difficulties in separating the tasks and that she still did not have enough work on a daily basis. She asked management to consider whether the team really did need three members of staff because she was short of work almost on a daily basis. it was the view of both managers (Mr Drew and Ms King) throughout this period that the administration team needed three people and that there was enough work for those three and, most importantly, the work would increase overtime.[27]By this stage it was Ms King’s view that something more needed to be done because of the difficulties in the team and she invited Wendy Burton the organisational effectiveness practitioner to try some team building exercises with the claimant, Ms Maloney, and Ms Bulloch. To this end there was a meeting with Ms Burton on 9 April. There was a further meeting on 17 April but neither meeting was successful. Indeed the claimant had a negative response to the suggestions of Ms Burton. Between 17 April and the end of the month the claimant continued to email Ms King saying that she did not have enough work. There were also issues with messages not being passed to the claimant. Who was responsible for this is unknown. Ms King fielded all the questions that the claimant sent to her. She did suggest, as a solution, that the three of them could sort out the sharing of work between themselves.[28]Ms Burton suggested on 10 April to the claimant that she felt that some confidential one to one coaching with Ms Burton would be helpful as Ms Burton recognised the claimant as a “fellow introvert”. That suggestion did not go down well with the claimant.[29]The claimant, by now, had been given more work with the psychology team. She had requested that work and did half a day per week with them. There was some dispute as to how many hours of actual work this entailed, but we find half a day was set aside for the claimant to do it.[30]Suggestions from the claimant were now coming thick and fast and her next suggestion was that the team should revert to working the way they had been before the trial separation of tasks. But it was Ms King’s view, set out in an email to the claimant of 15 April, that it would not be wise to revert back to the previous ways of working until the communication issues had been resolved. On the one hand Ms King felt that those communication issues needed to be dealt with first, whereas the claimant wanted more work and for Kelley and Georgia to “work professionally with her”. The communication issues would then resolve themselves, she suggested.[31]On 18 April Wendy Burton reported to Ms King that the meeting the previous day had been challenging, the atmosphere was not good and there was no eye contact between Ms Maloney, Ms Bulloch and the claimant and therefore the matter should be progressed to human resources (HR) for that department to find a solution. Ms King contacted HR with the agreement of Mr Drew.[32]Ms King tried to provide work for the claimant on each occasion that she was asked. To give but one example, on 29 April Ms King emailed the claimant to say that she would come and sit with the claimant as Ms King had work for the claimant to complete.[33]During this period, when the claimant asked for time off for hospital appointments, she had them granted without difficulty. She was also booked on mandatory training for the end of May. Ms King also found work for the claimant with other teams working at the prison on an ad hoc basis.[34]On 2 May Ms King wrote to HR setting out the difficulties in the team. The claimant told Ms King, in a text on the same day, that she had had a really bad night’s sleep and she wanted to take annual leave. Ms King’s reply was “of course” and that if she needed anything Ms Singh should let Ms King know. The claimant also sent a text to Mr Drew requesting the annual leave as well and he responded that, “that was fine”.[35]Anna Smith, one of the most senior managers at HMP Liverpool, asked Ms King for the claimant’s assistance because she knew the claimant had spare capacity to assist her. Minutes for a meeting needed to be taken by someone and the claimant was ideal for that role. Ms King passed that message onto the claimant on 9 May at 9:28 in the morning and the claimant said that there would be no problem but wanted to ask to have these meetings shared “between the whole administration team please”. An odd request when her primary complaint was that she never had enough work.[36]During this period there was a smattering of emails from Ms Bulloch to the claimant asking the claimant to share work, which the claimant accepted.[37]On 16 May the claimant noticed that her name had been removed from the whiteboard in the main IMHT office and replaced with Georgia’s name. Who was responsible for this is not known but the matter was rectified immediately.[38]The claimant asked for a meeting with Mr Drew for 20 May and it was then that the claimant told Mr Drew that she had another job in the pipeline, that she did not want to leave the Trust but, because of the lack of work, she had to look elsewhere. She asked Mr Drew about roles in the Psychology Department with Dr Kerry Manson. The claimant has a master’s degree in psychology which Mr Drew knew about and therefore he was receptive to that idea. He had no knowledge as to whether there was a post available in Dr Manson’s team. Mr Drew promised to speak to Dr Manson and, whilst the claimant was in his office, he rang Dr Manson's office but was told Dr Manson was on the wings of the prison and therefore could not be contacted. He promised the claimant that he would email the Doctor that day to see what the situation was. Mr Drew was busy for the rest of that day and worked until 8pm. He failed to send the email but he had every intention to do so.[39]On the next day, the claimant attended Mr Drew’s office again at about 10.00am extremely upset and handed a set of minutes to him and said that she was not emotionally able to deal with the meeting. She told Mr Drew that she was disappointed in management, including Mr Drew, because he had not bothered to send the email to Dr Manson and although Mr Drew tried to placate her and said that he would send the email straight away, the claimant said that he did not need to bother. He apologised but the claimant left his office and went home and never returned to work.[40]On 23 May Mr Drew sent an email to the claimant (which he had difficulty composing) and only sent it at 10.38pm after much consideration. Mr Drew wanted to put on record what occurred on that Tuesday because he was so concerned about the situation. He added to the email that, although the claimant was upset with the current situation in the administration team, so were Georgia and Kelley and that he and Ms King were doing their best to support the team with mediation and with Wendy Burton's input. He recorded the claimant had said that she did not trust Ms King, that she did not listen to the claimant and supported Kelley not the claimant.[41]By 14 June, the claimant had a firm offer of other employment from another NHS Trust in Chester. On 17 June, the claimant wrote to Mr Drew resigning from her post with one month’s notice saying that she had no choice but to resign because she felt her recent experiences were a fundamental breach of her contract and that Mr Drew had failed to address her ongoing workload concerns and the bullying and harassment issues she had raised. The claimant also lodged a grievance which was dealt with at meetings on 11 and 23 July and resulted in partial upholding of her grievances. The claimant has, both during her grievance and this employment hearing, confirmed that her upset was caused by having no work, feeling pushed out and excluded from the administration team. Having to ask for more work on a regular basis was, she felt, degrading and humiliating.[42]Applying the law to the facts of the case, we came to the following unanimous conclusion.[43]For there to be a constructive unfair dismissal there must be a fundamental breach of contract which goes to the heart of the relationship between the claimant and her employer, the Trust. The claimant pleads that there have been a series of events which, if taken together, amount to a cumulative breach of contract and the last straw was the way that she was treated by Mr Drew on 20 and 21 May 2020. We find that although the efforts of management were wanting on occasions and both managers could have got to grips with the concerns of all three administration officers in a more proactive manner, both Ms King and Mr Drew tried their best to placate the claimant and tried, in trying circumstances, to deal with the difficulties that existed between the women in the administration office. The claimant does not bring a bullying or harassment claim against the respondent’s employees generally or against Ms Maloney and/or Ms Bulloch specifically. What she says is, that because of the way management allowed the situation to develop, she did not have enough work and grew frustrated that her talents were not fully utilised. However, nothing in the treatment that she received from Ms King and Mr Drew could be seen, from an objective point of view, as treatment which amounted to a fundamental breach of the claimant’s contract. The relationship between the claimant and the respondent could have continued but for the claimant’s frustration at her position. By putting into place the mediation meeting, by involving Wendy Burton and by ultimately asking for the assistance of HR, both managers were trying to solve a situation, which involved the claimant’s upset, the upset of both Ms Maloney and Ms Bulloch and the unhappy atmosphere in their office.[44]The claimant was not the only member of staff who was frustrated at the difficulties in that office. More importantly the last straw, which has been pleaded by the claimant, which is the treatment she received by Mr Drew on 20 and 21 May 2019 amounted to no more than Mr Drew failing to email Dr Manson as quickly as the claimant demanded. That failure could not conceivably be seen as a slight to the claimant. Mr Drew is not the claimant’s line manager, he was extremely busy during 20 May, he attempted to contact Dr Manson in the presence of the claimant but she was on one of the wings of the prison and not contactable, the issue brought to him that day by the claimant was not a pressing problem which needed an immediate solution. We accept that he would have emailed Dr Manson eventually and indeed offered to do so on 21 May when the claimant came into his office angry at him for not emailing the previous day. This has to be put into context and the context is that the claimant did not have a specific job in mind in the psychology department, but simply wanted some inquiries to be made of Dr Manson about the possibility of joining that Doctor’s team and leaving the administration office. That last straw is not mistreatment of the claimant in any way and, despite the claimant’s wish to emphasise how upsetting it was for her, from an objective point of view it was a trivial issue which could have waited to be dealt with in the fulness of time. In short, whatever the claimant believes, the act of which she complains was the purely innocuous omission of a busy manager. Furthermore, as at the 20 May, the claimant wanted to remain employed by the Trust, yet twenty four hours later, because one email was not sent, she decided to resign.[45]Overall, we do not find that the actions of the claimant’s managers were calculated to destroy the relationship between the Trust and the claimant. The relevant evidence does not show that. We find that Mr Drew was genuine when he said he did not want the claimant to leave the Trust’s employment and neither his actions nor those of Ms King could conceivably be seen as amounting to a breach of the implied term of trust and confidence. Consequently, the claim for constructive unfair dismissal is dismissed.[46]Turning now to the section 15 claim, we have analysed all the treatment of the claimant during the period from February 2019 through to 22 May 2019 in detail and forensically as we must. We criticise the respondent’s managers in not taking a grasp of the deteriorating situation more firmly. For example, Ms King could easily have spent a short time each morning, as was suggested by the claimant, to sit with the three women in the team and distribute the work to them on a daily basis. If that had been done for even a short period of time that might have resolved the situation by easing the tensions in the administration team. Equally, a different division of the workload early on in the relevant period might have alleviated the difficulties which Ms King knew about after the claimant returned to work in early 2019. But we find nothing in the treatment of the claimant by Mr Drew and/or Ms King was unfavourable to her, considering what happened from an objective standpoint. The managers tried to sort out the difficulties by acceding to the claimant’s request to have the administration work split. If the claimant had wanted it, she could have worked in a separate room, which was initially one of her requests (though later withdrawn). The mediation meeting may have gone awry but we find it was a genuine attempt by Ms King and Mr Drew to solve the problems felt by all the team.[47]Furthermore, we find that the use of Wendy Burton was well intentioned. The fact that these strategies failed does not mean that the claimant has been unfavourably treated because of something arising in consequence of her disability. We established the “something” referred to in the section of the Act about which we were concerned was the lack of work for the claimant. That lack of work may have emanated initially from the fact that the claimant had been absent for surgery between December and February and had had a phased return to work. We accept that her absence was disability related. However, the main reason for the lack of work was not that the claimant had been absent, but because of the poor communication between the three members of the administration staff, the fact that they clearly did not get on and that that then required Ms King to try to resolve the issues. Moreover, it was at the claimant's request that the work was split. Ms King tried to split the work equitably, but the split did not suit the claimant’s requirements as, in particular, she wanted to deal with the mental health transfers and, generally, the more interesting work. The claimant suggests that there was too little work for three people in the administrative team. That was her view but it was not the view of the managers and indeed there are, today, still three members in that administration team. It was also the view of Mr Drew that work would increase over the weeks and months into the future as this Trust established its own unique way of dealing with the work compared with Lancashire Foundation Trust. Miss Singh did not recognise that Mr Drew’s view of what work needed to be done and what work was expected to come in was a view which was based on a strategic basis – a basis which she may not have been aware of at the time.[48]Even if we are wrong and the claimant has suffered at the hands of the respondent’s, unfavourable treatment because of something arising in consequence of her disability, the respondent’s managers have shown the treatment of her was a proportionate means of achieving a legitimate aim. The legitimate aim was to make sure that the important work at the prison should be dealt with speedily and appropriately and, in order to do this, there had to be teamwork and an equitable sharing of the work between the three members. In order to make sure that work was done to the highest standard the respondent’s managers were entitled to expect those three members to work harmoniously together. There is an obligation on all employees to foster good working relationships in the close confines of an office. The claimant was neither more culpable nor less culpable than the other members of the team in promoting or not good working relations. The managers attempted to intervene positively to affect good working relations and attempted to achieve that goal. That was a legitimate aim. The fact that they failed does not mean that the treatment of the claimant was in any way connected to her disability. It was connected to the disparate personalities within the team.[49]For all those reasons, therefore, the claimant’s section 15 claim is also dismissed.