Mrs S Rushton v OC Cleaning Solutions Ltd: 2414579/2019
EMPLOYMENT TRIBUNALS
Case No 2414579/2019
Between
Mrs S RushtonClaimantOC Cleaning Solutions LimitedRespondent
Before
Employment Judge HolmesIn person for claimantDate 7 April 2022
JUDGMENT
It is the Judgment of the Tribunal that: Upon concession by the respondent, the claimant has the requisite qualifying service to present a claim of unfair dismissal, and her claim can proceed. NOTICE OF HEARING The claim will be heard by an
REASONS
[1]Following the postponement of the final hearing listed for 30 October 2020, at which the issue of the claimant’s length of service was raised, and case management orders made for the parties to obtain the evidence necessary for its determination, the Tribunal re- convened for a preliminary hearing to determine whether the claimant could proceed with her claim.[2]Further bundles had been prepared, and both parties had made enquiries of the claimant’s previous employer, Minster, from whose employment the claimant had been transferred pursuant to a TUPE transfer in 2018. The documents obtained were 1 of 3 included in the respondent’s bundle. From a perusal of the these documents, it did seem to the Employment Judge that, despite some inaccuracies on dates , Minster had confirmed that the claimant had been employed by that company since 2015, and had been employed to work on the Utilities/Utiligrp N6 contract (i.e that which passed to the respondent on transfer) since August 2016, and not, as the respondent had originally been told, since 1 May 2018. On that basis the claimant would have two years qualifying service as at the date of her dismissal on 19 September 2019[3]The Employment Judge invited Mr White who appeared again for the respondent, what the respondent’s case would be upon continuity, in the light of this evidence. In addition to the emails from Minster, payslips had been provided which showed “Utili N6” , indicating that was where the claimant worked well before the transfer in 2018.[4]After some discussion, Mr White accepted that the respondent could not challenge this evidence, and conceded that the claimant did indeed have the requisite qualifying service. As that was the only issue before the Tribunal, the Employment Judge proceeded to obtain the listing above. Whilst two days may seem long for an unfair dismissal hearing, the respondent has disclosed several witness statements. Whilst only the dismissing officer and appeal officer may be necessary, with the claimant giving evidence as well, the Employment Judge could see how one day would not be enough, and he wanted to avoid the case going part heard.[5]Mr White raised as number of matters. The first was the position of Minster (the trading name of Cardinal Contracts Limited. The respondent had been given, on its case, incorrect information about the claimant’s employment history before the transfer. What could be done about that?[6]Whilst it is not the Employment Judge’s function to give legal advice, he did refer the respondent to the possibility of claims between transferor and transferee (under reg. 12 of TUPE) , but this may not cover this situation, or provide an adequate remedy. There are also likely to be time limit issues. Outside such a claim in the Tribunal, the respondent would probably be left to claims in negligent misstatement , which would have to be made in the civil courts, and upon which the Employment Judge could give no further advice.[7]Secondly, Mr White enquired as to the potential relevance of the respondent dismissing the claimant when under a misapprehension as to whether she had qualifying service. Again the Employment Judge could not advise, and the respondent must seek its own advice on this aspect. Such a proposition may require consideration of “mistaken belief” cases such as Klusova v London Borough of Hounslow [2008] ICR 396 . Other Matters.[8]There was discussion as to the bundle, the claimant complaining that the respondent had “left out” items that she wanted included. She also had some criticisms of the layout and ordering of the bundle.[9]The Employment Judge proposed that the Tribunal continue to use the respondent’s bundle, as it was paginated and logical, if not in the order that the claimant wanted. If 2 of 3 there remained items which the claimant considers have been omitted, the claimant should raise this with the respondent, to see if the respondent will agree to add the material to the bundle (at the back, as additional documents and numbering, so as not to disrupt the current bundle) . If not, the claimant should prepare her own bundle, and send/bring that to the Tribunal.[10]On the topic of the Bundle (whilst not mentioned in the Hearing) the Employment Judge notes that, whilst it contains the claimant’s payslips with Minster, both pre – and post – dismissal, there do not appear to be any payslips showing her pre-dismissal earnings with the respondent. The claimant does not appear to have included this information anywhere else (apart from her statement) , and it is required, if the Tribunal is to be able to assess what award it should make.[11]The Employment Judge also reminds the parties of the discussion in para.17 of the Reasons for the Tribunal’s Orders on 30 October 2020, as to the limitations upon awards for unfair dismissal. It is unclear whether the claimant has disclosed all documents relating to her post dismissal earnings, but if she has not, she should do so.
The Facts
[12]The respondent’s disciplinary procedure was provided. At paragraph 1.15 acts of gross misconduct included serious insubordination or wilful refusal to carry out reasonable management instructions.[13]There was a background of difficulty between the claimant and some of her colleagues including her supervisor, Lynn Clark, and three of her co-workers: Lisa, Meghan and Kara. This caused doubt amongst some of the staff as to what the duties of each were, as the claimant attempted to enter into “negotiations” as to what her duties were when the respondent’s view was that they were clear.[14]By 26 July 2019 a total of ten points were raised in the disciplinary hearing on that date (see pages 31-32). They were mainly allegations of aggression towards her colleagues and failure to co-operate with her managers. Mark White chaired that meeting. The decision was to issue the claimant with a final written warning active for one year (pages 37-38).[15]The claimant appealed against the final written warning and that was heard on 23 August 2019 by Fiona Smithson, an external HR consultant. She upheld the final written warning for the reasons set out in her letter of 28 August 2019 (pages 44-45). In short, she upheld incidents of aggression against Kara and Meghan and the refusal to comply with a reasonable management instruction to meet with Mark White and Ben Summerfield. The claimant also had covertly recorded meetings in breach of the respondent’s handbook at sections 17.6.10 and 17.6.11.[16]On 16 September 2019 the claimant was suspended by Mark White due to:(1) Failure to follow a reasonable management instruction to remove all bin bags from Utiligroup offices to the outside refuse areas; and(2) On 3 September 2019 inappropriate behaviour towards Mark White in that she was rude and would not cooperate fully in answering his questions. The claimant was also late to work and did not clock in on time (letter at pages 46-47).[17]The claimant was provided with notes from an investigation (pages 48-49). The claimant provided a letter answering the allegations dated 17 September 2019 (page 51-52) in which she challenged the respondent’s version of events.[18]A disciplinary hearing took place on 18 September 2019 chaired by Benjamin Summerfield, Services Manager. His decision was to dismiss the claimant for gross misconduct having found her explanations unacceptable (pages 52-53).[19]The claimant appealed against her dismissal and that was heard by an independent HR consultant (Debbie Sherrington). Ms Sherrington also heard the claimant’s grievance concerning her treatment by the respondent. The appeal and grievance were heard on 2 October 2019. In respect of all the meetings, the claimant was invited to be accompanied by a colleague.[20]One or two of the meetings were on rather short notice (circa two days) but that did not render the procedure unfair as the respondent was open to adjourning if necessary (as was apparent from the notes during the dismissal hearing). In any event the defects, such as they were, were corrected at the appeal held on 2 October 2019, notice of which was given on 24 September 2019 (pages 54-55), and the issues were well-known to the claimant.[21]The claimant's appeal was dismissed for the reasons set out at pages 66-67. The decision maker (Debbie Sherrington) gave reasons which indicated she had reviewed the evidence and reached her conclusions which were set out in her letter. She noted that, in respect of the first allegation, the claimant refused to give her the name of the member of staff in order to allow her to investigate the matter. In respect of other matters, Ms Sherrington noted that there was witness evidence that the claimant was aggressive and unco-operative with Mark White. Discussion and Conclusions[22]I accepted that the respondent had shown a potentially fair reason for the dismissal (conduct) and that conduct fell within the respondent’s disciplinary rules. That being so, the question arose as to whether the dismissal was fair or unfair.[23]The question of fairness is whether the dismissal fell within the range of reasonable responses a reasonable employer might apply in the circumstances, and whether the dismissal was procedurally fair. I cannot substitute my views for those of the respondent. It is immaterial whether I would have decided to dismiss the claimant in these circumstances.[24]Turning to the fairness under section 98(4) and taking into account the size of the employer and its resources, I am satisfied the dismissal is procedurally fair. Such matters as to shorter notice were not such as to impact on that fairness, and the appeal remedied any residual unfairness that may have otherwise existed.[25]The reason for the dismissal was the claimant's lack of cooperation amounting to aggression at times, and this fell within the definition of gross misconduct within the respondent’s rules. There was a current final written warning for similar misconduct (see paragraph 14 above) against which the claimant had unsuccessfully appealed. There was nothing in the evidence to suggest that the final written warning had been inappropriate or given in bad faith (Stein v Associated Dairies [1982] IRLR 447). Given that there was a final written warning which was still active for similar misconduct, I find that dismissal fell within the range of reasonable responses and was therefore fair.[26]The claimant’s claim of unfair dismissal is therefore dismissed.[27]There was some ambiguity as to whether an unlawful deduction claim was outstanding. The respondent produced a document showing that the matter had been dealt with in or about November 2019, and the claimant did not raise the issue in her statements at pages 3-4 and pages 15-16. Tribunal Judge Callan sitting as an