Employment Judge BensonIn person for claimantMr J Cook - counsel for respondentDate 16 July 2020
JUDGMENT
[1]The claimant was not dismissed.[2]The claim of unfair dismissal fails and is dismissed. JUDGMENT having been sent to the parties on 24 July 2020 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]This is a claim of unfair dismissal. Mrs Hull alleges that the respondent breached the implied term of trust and confidence in respect of its actions and treatment of her between 9 August 2019 and 15 August 2019, at which stage she resigned. She says that the respondent’s treatment of her amounted to a fundamental breach, and that she relied upon this as the reason for her resignation.[2]At the outset of the hearing a draft list of issues was agreed within which the particular treatment about which Mrs Hull complains and upon which she relies was set out in paragraph 1 (a) to (h). These were are follows:a. On 9 August 2019, the respondent suspended the claimant without first giving her the opportunity to respond to the allegations made against her;b. The claimant’s suspension on 9 August 2019 was a “knee jerk reaction” and a “punishment”;c. The respondent did not sufficiently explain the reasons for suspension at the time the decision to suspend was taken;d. The respondent failed to protect the claimant’s mental health and wellbeing during the suspension and investigation process;e. The respondent failed to carry out the investigation in an impartial mannerf. The respondent failed to protect the claimant’s confidentiality during the investigation by advising the claimant’s colleagues to say she was on leave if questioned about her absence;g. The respondent did not carry out a thorough investigation into the allegations against the claimant;h. The investigating manager Robbie Patton was not impartial.[3]The issues which I need to decide were set out in the list of issues and are repeated below in my decision.[4]The respondent disputes the claims and contends that the claimant was not dismissed. If I find that the claimant was dismissed then the respondent argues that such dismissal was for the reason of conduct or capability, being one of the potentially fair reasons for dismissal, and that it was within a band of reasonable responses for it to dismiss. The list of issues also includes matters which I need to consider if Mrs Hull’s claim is successful. These are referred to as Polkey/Contributory fault and whether the ACAS Code has been breached. Evidence and submissions[5]I heard evidence from the claimant and on behalf of the respondent from Mr R Patton, an Operations Manager, Ms V Longstaff, Head of HR and Payroll, and Mr S Hughes, an Operations Manager who heard the claimant’s grievance. I was referred to an agreed bundle of documents and considered the written and oral submissions from Mr Cook. The claimant did not wish to make final submissions but told me that she stood by everything that she had said.
Findings of Fact
[6]I set out below my findings of the relevant facts of this case. They do not include all of the evidence which was heard, but rather those matters which were relevant to the issues and questions which I needed to decide. I have made my findings based upon the witness statements and oral evidence of the witnesses and the documents to which I was referred.[7]The facts in this case were the largely agreed. The events occurred over a relatively short period of time between 27 July 2019 to 15 August 2019. The only area of dispute, factually, is whether the notes of the investigatory meeting which took place with Mrs Hull on 14 August, are accurate. I accept they are unlikely to be a full note of that meeting, as it is always difficult for somebody making handwritten notes to get down everything that is said entirely accurately. However, I see no reason, and indeed Mrs Hull was unable to put forward any reason why the person who made the notes, Mr Prior, would have for deliberately misrepresenting her responses. I therefore find that the notes were a reasonably accurate reflection of what was said at the meeting but may not have included everything that was said by each person.[8]Mrs Hull also referred to matters where Mr Patton’s statement did not support dates which he referred to in the questions raised in the investigatory meeting. I accept that these are inaccuracies which often arise where events have taken place some months or years before and I do not consider that they make Mr Patton’s evidence any less credible.[9]The claimant was employed as a catering manager with the respondent at a client’s premises. Her start date was 22 November 2016 and she resigned with immediate effect on 15 August 2019. She had responsibility for three members of staff in her team with whom she believed she got on well.[10]On Friday 26 July 2019 she started a period of annual leave. She was due to return to work on Monday 12 August. During her absence a relief manager, John Asif found variances with stock which he did not think looked right. There were items of food which he considered should have been in stock and were recorded previously as being present, which he could not find. He reported this to Mr Patton, the operations manager. Mr Asif was an experienced relief chef manager and Mr Patton had confidence in him. He was asked to check again and carry out some investigations, including looking back at menus to see if missing items may have been used and to see if there was an explanation for the variances. He was also asked to check out possible explanations with the rest of team. Those discrepancies remained and he reported this to Mr Patton on 6 August. Mr Patton intended to look into it further at the end of the following week.[11]Further issues then came to light which Mr Asif reported to Mr Patton. This included a note left by the claimant saying that the vending machine should be dealt with by one of her colleagues, not Mr Asif, and that there was some unrest in the team at the unit, in that staff had commented that the claimant was quite abrupt and abrasive towards them. In particular that one team member, a Miss Russ, would bear the brunt of it. Mr Asif said he was quite worried about what they were saying.[12]Mr Patton decided that he should visit the unit to see what the issues were for himself. He attended on the following day, 7 August and met with Mr Asif. They looked at the stock discrepancies in detail. Mr Asif also brought to his attention a cleaning schedule which appeared to have been completed in advance by the claimant. Mr Patton was concerned as this was health and safety paperwork which had possibly been completed fraudulently.[13]Mr Patton made a further visit on 9 August. This was unannounced in that neither Mr Asif nor any of the staff knew he was going to attend. His intention was to meet with the other team members. He met with each of them and took statements. He made handwritten notes at the time and typed them afterwards. In those statements, all three staff members made allegations that they had been bullied by the claimant who they say shouted and threatened that they would be sacked. Other allegations were made of a serious nature, which had possible implications for the variances that Mr Patton had found in the stock figures. These included that the claimant’s husband did not pay for his food and that she charged different prices to people who she liked. One of the team also alleged that the claimant told her that no one was to deal with the vending machine or look at her books while she was off.[14]Mr Patton considered that all of these issues needed to be investigated further and took advice from the respondent’s legal helpline. He decided to suspend the claimant whilst he undertook that investigation. The claimant was due back from annual leave on August 12, but on August 9, whilst Mr Patton was typing up the statements, the claimant called to speak to John Asif to discuss his handover for when she returned.[15]Mr Patton did not at that stage advise the claimant of the issues. It was not a convenient time to speak as there were other people around, however later that afternoon he spoke to her and advised her that she was to be suspended and outlined the allegations against her. That conversation lasted some 9 minutes.[16]The reason that Mr Patton decided to suspend the claimant was because of the seriousness of the allegations, including the bullying allegations which he felt could not be properly investigated if the claimant was in work, but also taking the other allegations in the round, he considered it was appropriate to suspend.[17]He thereafter prepared a series of questions for the claimant and she was invited to an investigatory interview with him on 14 August. Her suspension and her invitation to that meeting were confirmed in writing by way of template letters. The claimant asked the respondent’s Head of HR, with whom she was communicating, what her husband should say about her whereabouts if he was asked. Ms Longstaff said that he should say she was on leave and that was what the other team members had had been told to say.[18]At the investigatory meeting, which lasted several hours, Mr Patton went through all of the issues which were of concern to him. The claimant was able to answer some of the concerns that Mr Patton had in relation to stock variances, but others she had no explanation for. She provided an explanation which satisfied Mr Patton in relation to the signing of the health and safety cleaning rotas, and disputed all allegations of bullying or harassment of staff members.[19]Following that meeting the claimant resigned by letter dated 15 August. The letter made no mention of concerns about the investigatory process and thanked Mr Patton for the support that had been given to her. She did however state that her position was no longer tenable and that she was sorry that she had not learned more.[20]Her resignation was accepted.[21]She thereafter raised a grievance which has limited relevance to these proceedings. The Law Constructive dismissal
The Law
[22]To succeed in a claim of unfair dismissal, the claimant has to establish that she was dismissed by the employer. In a case of constructive dismissal, a claimant has to show that she terminated the contract by resigning, whether with or without notice, but in circumstances in which she was entitled to do so by reason of the employer's conduct.[23]The relevant section of the Employment Rights Act 1996 is section 95(1)(c). The leading case is Western Excavating (ECC) Limited v Sharp [1978] ICR 221. In that case the Court of Appeal ruled that for an employer’s conduct to give rise to a constructive dismissal, the employee must establish there was a fundamental breach of contract on the part of the employer, that the employer’s breach caused the employee to resign and that the employee did not delay too long before resigning, thus affirming the contract and losing the right to claim constructive dismissal.[24]In order to identify a fundamental breach of contract on the part of the employer, it is first necessary to establish what the terms of the contract are. Individual actions by an employer that do not in themselves constitute fundamental breaches of any contractual term may have the cumulative effect of, for example, undermining the trust and confidence inherent in every contract of employment. A course of conduct can therefore cumulatively amount to a fundamental breach of contract entitling an employee to resign and claim constructive dismissal following a ‘last straw’ incident.[25]The ‘last straw’ does not by itself need amount to a breach of contract. Lewis v Motorworld Garages Ltd 1986 ICR 157, CA[26]The existence of the implied term of mutual trust and confidence was approved by the House of Lords in Malik v Bank of Credit and Commerce International SA (in compulsory liquidation) 1997 ICR 606, HL. There, their Lordships confirmed that the duty is that neither party will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.[27]If the claimant establishes that she has been dismissed, the provisions of Section 98 Employment Rights Act 1996 come into play.[28]Section 98 reads as follows: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal and(b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this sub-section if it: (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee,(c) is that the employee was redundant, or(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (3) … (4) Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case”.[29]The starting point in a claim of constructive unfair dismissal is to consider whether the claimant can establish that she was dismissed. To do that she must show that there has been a fundamental breach of contract; that such breach caused the claimant to resign and that she did not delay too long before resigning.[30]As the claimant relies upon the implied term of trust and confidence, in deciding whether there has been a fundamental breach, I must look at the respondent’s conduct which Mrs Hull says caused her to resign. These are the matters listed above at paragraph 2. In doing so I must look at each of the allegations:• to consider if the respondent did what Mrs Hull says they did; and• to consider if either individually or as a whole the respondent had reasonable and proper cause for doing each these things; and• if they did not have reasonable and proper cause, then was the conduct calculated or likely to destroy or seriously damage trust and confidence.[31]It is only if the claimant can show that there has been a fundamental breach of that implied term of her contract I am required to consider the remaining parts of the test and whether any dismissal was unfair. The Suspension[32]Allegations (a) (b) and (c) all relate to the claimant’s suspension. On 9 August 2019 the respondent suspended the claimant without first giving her an opportunity to respond to the allegations made against her.[33]There is no requirement for an employee, either within the respondent’s own policy, or within the ACAS code of practice to be given an opportunity to respond to allegations before a suspension. In the claimant’s case, Mr Patton had received serious allegations against the claimant concerning possible missing stock and in the form of complaints by her three colleagues that she was bullying them. The bullying allegations were made during meetings with Mr Patton on Friday, 9 August. The claimant was due back in work on 12 August. Although I can understand why the claimant would have liked and indeed was very upset and concerned that she did not have the opportunity to give her side of the story before she was suspended, I consider that Mr Patton had a good reason not allow the claimant back into work on Monday, 12 August until he had carried out further investigations into these allegations. He had an obligation both to the claimant, but also to the three members of staff who had made complaints. He therefore had reasonable and proper cause to act as he did. The claimant’s suspension on 9 August 2019 was a knee-jerk reaction and punishment.[34]There is nothing which I have seen in the evidence which has been presented to me during the course of the last two days which leads me to consider that Mr Patton made the decision to dismiss as a punishment, or without first considering carefully his actions. Before the suspension, Mr Patton took advice and carried out sufficient investigation of both the bullying allegations, by speaking to the three members of staff, and looking into the variance in stock and other financial issues to make an informed decision upon whether to suspend. Again, therefore he had reasonable and proper cause to suspend. The respondent did not sufficiently explain the reasons for suspension at the time the decision to suspend was taken.[35]The claimant was provided with a suspension letter, though that simply outlined the allegations which were being investigated. She was told about the reason she was suspended in the telephone conversation with Mr Patton on 9 August. That call lasted some nine minutes during which Mr Patton gave her the gist of the issues which were of concern to him. Although she was not told of the detail of the allegations relating to the stock issues or the bullying allegations, there is no requirement either under the respondent’s own policies or under the ACAS code for it to do so.[36]The period of suspension itself was relatively short, and the respondent did not delay in holding an investigatory meeting, at which time the claimant was given full details of the allegations against her. Although it is clear that the suspension came as a shock, and that Mrs Hull was very upset about it, I consider that there was nothing that the respondent did which could be described as being without reasonable and proper cause. If I am wrong on this point, I am satisfied that the respondent did nothing which was calculated or likely to destroy or seriously damage the trust and confidence which Mrs Hull may have had in her employer. The respondent failed to protect the claimant’s mental health and well-being during the suspension and investigation process.[37]Although Mrs Hull’s reaction to the suspension and Mr Patton telling her that there were allegations against her, showed how anxious she was about the situation, there was no evidence before me that the respondent had knowledge of any preexisting mental health issues that Mrs Hull may have had. Although Mrs Hull said during her evidence that she had mentioned this to someone she named as Craig, this was vague, and not something that she pursued with any vigour.[38]Any employer has an obligation to consider an employee’s well-being during a suspension and investigation process, and in this case by it holding an investigation meeting only a few days after the claimant was suspended, such that the period of suspension was short, did go some way to seeking to protect the claimant’s wellbeing. The respondent also attempted in correspondence to reassure the claimant that this process was only at an investigatory stage. I consider therefore that the claimant has not shown that her employer failed to protect her mental health and wellbeing. The Investigation[39]The claimant raises issues with regard to the manner in which the investigation was carried out, including whether it was sufficiently thorough, and the impartiality of Mr Patton. Mr Cook in his submissions deals with these three allegations together which I think is appropriate. These are as follows: The respondent failed to carry out the investigation in impartial manner/The respondent did not carry out a thorough investigation into the allegations against the claimant/The investigating manager Mr Patton was not impartial.[40]In a disciplinary process there is a distinction between an investigation and disciplinary action. I am unsure whether Mrs Hull at the time of that these issues arose understood the distinction. At an investigatory stage, the obligation on an employer is to fact find, which includes collating any evidence, and giving the employee the opportunity to comment upon it before any decision is made as to whether there should be any disciplinary action.[41]At that stage it is not necessary for an employer to have proof of allegations, and indeed the investigation itself is the time at which evidence is gathered which may support an allegation or indeed may mean that it falls away. The investigation therefore was only partway through when Mrs Hull resigned. As Mr Patton explained, he would, after the investigatory interview, have continued to follow up issues which Mrs Hull had raised. There may have been the other documents he could have looked at as raised by Mrs Hull in these proceedings, such as the allergen sheets. In resigning when she did, he did not have the opportunity to do so.[42]The investigation that had been conducted up to and including the meeting with Mrs Hull was thorough, though was as yet incomplete. Mr Patton had spent some time looking into the stock variances, putting together detailed figures, discussing them with Mr Asif, cross checking them with menus, speaking with her colleagues himself and had satisfied himself that there were issues which needed to be discussed with Mrs Hull. All of these issues were explored with the claimant during her meeting.[43]Mrs Hull suggests that as the statements of the claimant’s colleagues were not signed, that Mr Patton did not have proof of the allegations. As I have said, at this stage, proof is not required, but it is incumbent upon an employer to consider whether there is any foundation in allegations that are being made. Mr Patton took time to see each of the staff members and attended unannounced such that the possibility of collusion was limited. His decision to investigate these allegations further with the claimant was based, not just on what the staff said, but also on their demeanour. I am satisfied that he had reasonable and proper cause to put these allegations to the claimant and in the manner that he did.[44]During cross-examination, Mrs Hull confirmed that Mr Patton was an appropriate person to carry out the investigation as her line manager. She also confirmed that there was no particular reason why Mr Patton might not be impartial.[45]I consider that the respondent had reasonable or proper cause to carry out the investigation as it did and to allow Mr Patton to conduct it. The claimant has not shown that the investigation was not thorough, nor that either the process or Mr Patton were not impartial. I am satisfied that the respondent did nothing during its investigations which was calculated or likely to destroy or seriously damage the trust and confidence which Mrs Hull may have had in her employer. The respondent failed to protect the claimant’s confidentiality during the investigation by advising the claimant’s colleagues to say that she was on leave if questioned about her absence.[46]The claimant rightly raises the guidance within the ACAS Code of Practice that she should be consulted in respect of any reasons given to colleagues for an employee’s absence on suspension. This is however guidance only. In this instance Mrs Longstaff told the claimant that her husband should say that she was on leave and that her team had also been told to say that, rather than saying that she had been suspended. I’m satisfied that this was to protect the claimant. Her team already knew that there was an investigation ongoing relating to the claimant as they had been interviewed. Although Mrs Longstaff did not consult the claimant about what they were instructed to say, leave can mean a variety of reasons for absence (including annual leave, sickness, compassionate leave and indeed could include suspension and other reasons). I have to consider whether in giving that instruction, the respondent, without reasonable cause, conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence. Mrs Hull believed that there had been a breach of confidence in Mrs Longstaff giving that instruction, but for the reasons I’ve set out, if it was a breach of confidence there was reasonable cause for doing it, and if I am wrong in that regard it was not done in a manner which was calculated or likely to destroy or seriously damage their relationship.
Conclusion
[47]I have found that none of the allegations which have been raised by Mrs Hull are in themselves sufficient to amount to repudiatory breach of contract such that Mrs Hull had the right to resign and say that she was dismissed. Considering them collectively, although I can see that the process of being suspended and being subjected to an investigation had a profound effect upon Mrs Hull, I consider that the actions which the respondent took were entirely understandable and they had reasonable and proper cause to investigate the issues which came to light during the claimant’s absence in the manner that they did. I also find that taken collectively, the respondent’s conduct did not amount to a fundamental breach of the claimant’s contract. As such I find that the claimant was not dismissed.[48]Although not strictly relevant in view of my findings I note that the claimant’s resignation letter makes no reference to these issues.[49]Mrs Hull, possibly not fully appreciating the difference between the investigation of an issue and disciplinary action in respect of it, resigned before the respondent had come to any conclusions. Had she waited, it is entirely possible that she would have been able to provide answers or explanations in respect of the allegations which were being investigated and reassure her colleagues that any issues between them were misunderstandings.[50]The claim fails and is dismissed.