Mrs J Howie v Interactive Development Education Ltd: 2501187/2016

EMPLOYMENT TRIBUNALS

Case No 2501187/2016

Between

Mrs J HowieClaimant

Interactive Development Education LtdRespondent

Before

Employment Judge A M Buchanan

Members

Mrs J Cairns

Mr M Ratcliffe

Ms C Millns (instructed by Counsel) for claimant

Mr D Southall (instructed by Solicitor) for respondent

Date 28 July 2017

JUDGMENT

It is the unanimous judgment of the Tribunal that:

[1]The claim for automatic unfair dismissal pursuant to regulation 7(1) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) is dismissed on withdrawal by the claimant.

[2]The claim of automatic unfair dismissal by reason of pregnancy/maternity pursuant to section 99 of the Employment Rights Act 1996 (“the 1996 Act”) is dismissed on withdrawal by the claimant.

[3]The claim of unfair dismissal pursuant to sections 94/98 of the 1996 Act is well founded and the claimant is entitled to a remedy.

[4]The claim of pregnancy discrimination by dismissal pursuant to sections 18 and 39(2)(c) of the Equality Act 2010 (“the 2010 Act”) is dismissed on withdrawal by the claimant.

[5]The claim of pregnancy discrimination by detriment pursuant to sections 18 and 39(2)(d) of the 2010 Act is well-founded and the claimant is entitled to a remedy.

[6]The alternative claim of sex discrimination is dismissed.

[7]The alternative claim for a redundancy payment is not well-founded and is dismissed.

[8]The claimant is entitled to compensation for unfair dismissal in the sum of £21772.90 and subject to the provisions of the next paragraph, the respondent is ordered to pay such sum to the claimant forthwith.

[9]The Employment Protection (Recoupment of Benefits) Regulations 1996 (“the 1996 Regulations”) apply to this award and the particulars required by Regulation 4(3) are:-9.1 The monetary award is £21,722.90.

9.2 The amount of the prescribed element is £11,557.46.

9.3 The dates of the period to which the prescribed element is attributable are 16/09/16 – 31/07/17.

9.4 The amount by which the monetary award exceeds the prescribed element is £10.165.44.

[10]The respondent is ordered to pay to the claimant compensation for unlawful discrimination pursuant to section 124 of the 2010 Act (including interest to the date of calculation as specified in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996) in the sum of £4,419.94. For the avoidance of any doubt, the 1996 Regulations do not apply to this award.

[11]There will be no award for Tribunal fees pursuant to Rule 76(4) of Schedule I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the 2013 Rules”).

[12]Subject to paragraph 9 above, the total sum payable by the respondent to the claimant is £26,192.84 and is payable forthwith.

REASONS

1.1 By a claim form filed on 24 October 2016 the claimant brought proceedings against RESERVED JUDGMENT Case Number: 2501187/2016 four respondents. The claimant relied on four separate early conciliation certificates and on each of which Day A was shown as 26 August 2016 and Day B as 26 September 2016.

1.2 On 21 November 2016 a response was filed on behalf of Interactive Development Support Limited and the now remaining sole respondent Interactive Development Education Limited in which all liability to the claimant was denied. On the same day a separate form of response was filed on behalf of the Council of the City of Newcastle upon Tyne (“NCC”) and Newcastle City Learning again including a denial of liability.

1.3 A private preliminary hearing (“PH”) took place on 2 December 2016 before Employment Judge Garnon at which it was noted that Newcastle City Learning was not a legal entity but a department of NCC and therefore Newcastle City Learning was removed from the proceedings. It was noted that there was an issue as to whether or not the claimant’s contract of employment had transferred to NCC and accordingly a public PH to determine that matter was arranged for 13 February 2017. In addition the claimant was ordered to file further particulars of the detriments to which she claimed to have been subjected by the various respondents and those particulars were filed on 15 December 2016.

1.4 On 9 February 2017 the Tribunal was advised that the claimant wished to withdraw her claim against NCC and by a judgment signed on 10 February 2017 the claim against NCC was dismissed. The claimant by then had accepted that the correct name of her employer company was Interactive Development Education Limited and therefore at the hearing on 2 December 2016 Interactive Development Support Limited had been removed from the proceedings. Accordingly from 10 February 2017 onwards the only respondent in this matter has been Interactive Development Education Limited which we now refer to as “the respondent”.

1.5 A further private PH took place by telephone on 13 February 2017 before Employment Judge Hargrove when issues in the claims were identified and various orders made for the final hearing which came before us as detailed above.

1.6 At the hearing on 13 February 2017 it was noted that the claims before the Tribunal were:- 1.6.1 A claim of automatic unfair dismissal pursuant to regulation 7 of TUPE and section 99 of the 1996 Act. 1.6.2. A claim of ordinary unfair dismissal pursuant to sections 94-98 of the 1996 Act. 1.6.3 A claim of discrimination because of pregnancy relying on the provisions of sections 18 and 39(2)(c) and (d) of the Equality Act 2010 (“the 2010 Act”). 1.6.4 An alternative claim of sex discrimination relying on the provisions of sections 9 and 39 of the 2010 Act in case any of the alleged detriments occurred outside the protected period in respect of the claimant’s pregnancy as defined in section 18(6) of the 2010 Act. 1.6.5 A claim for a redundancy payment. RESERVED JUDGMENT Case Number: 2501187/2016

1.7 The matter was listed to begin on 8 May 2017. On that day a non legal member who had arranged to sit on this case found that she was unable to attend by reason of urgent domestic circumstances and therefore the Tribunal arranged for Mrs J Cairns to attend and sit on the panel effective from Tuesday 9 May 2017. Accordingly the Tribunal hearing began on that day and continued through until the evening of Thursday 11 May 2017 when submissions were received. The Tribunal decided to release the parties and to deliberate in Chambers on Friday 12 May 2017 and therefore this judgment is issued with full reasons in order to comply with rule 62(2) of the 2013 Rules. Witnesses

[2]During the course of the hearing the Tribunal heard from the following witnesses:-2.1 Gordon Quince – a Director of the respondent and the dismissing officer.

2.2 Valerie Ross – a former employee of the respondent whose employment transferred to NCC on 1 June 2016.

2.3 Alwyn Thow – Quality Manager with Interactive Development Support Limited (an associated company of the respondent) who acted as the appeal officer in respect of the claimant’s dismissal.

2.4 Pauline Bell – who acted as a note taker at various meetings attended by the claimant relevant to this matter and in particular at the hearing on 17 June 2016 and at her appeal against dismissal hearing on 4 August 2016.

2.5 The claimant. On behalf of the claimant two further additional statements were filed which were accepted and therefore read and accepted by the Tribunal namely the statements from:-

2.6 Ian Grayson – who was the claimant’s trade union representative at the meetings relevant to this matter.

2.7 Amy Hunt who is a Regional Officer of the National Union of Teachers and who represented the claimant at the appeal against dismissal hearing which took place on 4 August 2016. Documents

[3]The Tribunal had before it a bundle of documents comprising 423 pages. As the matter progressed additional documents were added bringing the documents to 447 pages. Any reference in this judgment to a page number is a reference to the corresponding page within the agreed bundle. Comment on witnesses

[4]The Tribunal makes the following brief comments in respect of the principal witnesses who appeared before it:- RESERVED JUDGMENT Case Number: 2501187/20164.1 Gordon Quince (“GQ”) – The Tribunal found the evidence from this witness to be given in a hesitant and vague fashion. The witness clearly was not familiar with the contents of the agreed bundle and was not on top of the details of the case which, given its importance to the respondent, was surprising.

4.2 Alwyn Thow (“AT”) – The evidence from this witness was not compelling. It is clear that she had approached her role as appeals officer in a muddled way and in particular had not read any of the papers in relation to the matter prior to start of the appeal hearing – in particular she had not familiarised herself with the letter of dismissal or the claimant’s letter of appeal. As a result the appeal hearing was thoroughly confused. The witness accepted in cross examination that she had rubber stamped the original decision. When that matter was questioned in re-examination, the witness claimed not to have understood what rubber stamp meant. The Tribunal found the evidence of this witness particularly unreliable. The witness accepted that her method of dealing with this appeal was not consistent with the approach she adopted in dealing with appeals in the associated company in which she worked.

4.3 The claimant – The evidence from the claimant was consistent and credible. It was clear throughout her evidence that the events in question had had a clear and demonstrable effect upon her. The claimant was familiar with all aspects of the case and was able to express her view of matters in a clear and compelling way. Factual issues

[5]There were not many factual issues for the Tribunal to determine but such as there were are resolved in the findings of fact which follow. In the main where conflict arises between the parties the Tribunal prefers the evidence of the claimant to that of the witnesses for the respondent for the reasons set out above. Legal issues

[6]The legal issues in the matter were simplified as the case progressed and as various heads of claim fell away. At the outset of the hearing it was confirmed that the claimant would only pursue one allegation of detriment namely that set out at paragraph 1 of the further particulars on page 18A. The allegation related to the alleged failure of the respondent to advise the claimant in respect of a safeguarding investigation being undertaken by NCC and being denied the opportunity to state her case in relation to that investigation which resulted in a requirement from NCC to the respondent to remove the claimant from the relevant contract. In addition at the end of the evidence, the claimant withdrew allegations that her dismissal was an act of pregnancy discrimination and that her dismissal was automatically unfair by reason of a transfer pursuant to Regulation 7 of TUPE and/or that her dismissal was automatically unfair by reason of pregnancy pursuant to section 99 of the 1996 Act. Accordingly the Tribunal was left to determine two substantive claims namely:-6.1 A claim of detriment because of pregnancy and

6.2 A claim of ordinary unfair dismissal.

[7]The legal issues in those matters were as follows:- RESERVED JUDGMENT Case Number: 2501187/2016 Pregnancy Detriment Claim7.1 Was the claimant on maternity leave from 10 July 2015 until 8 July 2016?

7.2 Did the respondent fail to advise the claimant of allegations made against her as part of a safeguarding investigation undertaken by NCC from January until March 2016? Was the claimant thereby not given the opportunity to state her case before the investigation concluded and was the claimant thereby denied the opportunity to respond to the conclusions of the investigation?

7.3 If so, does this amount to a detriment within section 39(2)(d) of the 2010 Act?

7.4 If so, was the detriment in the protected period as defined in section 18(6) of the 2010 Act?

7.5 If so, did the respondent impose any detriment because of the claimant’s pregnancy or because of illness suffered by her as a result of it or because the claimant was exercising or seeking to exercise or had sought to exercise the right to ordinary or additional maternity leave?

7.6 It is noted and recorded that there were no time issues in relation to that particular allegation. Ordinary unfair dismissal

7.7 Has the respondent proved the reason for dismissal as third party pressure placed on the respondent by NCC in relation to a contract held by the respondent from NCC? If so, did this amount to some other substantial reason within section 98(1)(a) of the 1996 Act?

7.8 If so, did the respondent act reasonably in treating that reason as sufficient to dismiss?

7.9 If not, and the dismissal is unfair could and would the claimant have been fairly dismissed by the respondent and if so when – the Polkey question? In relation to remedy:-

7.10 The claimant sought the remedy of compensation. How should compensation be assessed?

7.11 As the claimant had been ill at all times since the date of her dismissal, was the claimant entitled to compensation for loss of earnings?

7.12 Do the1996 Regulations apply to any award?

7.13 Should there be an award for injury to feelings and/or injury to health in respect of the discrimination claim?

Findings of fact

[8]The Tribunal, having considered the oral evidence received from the witnesses, the way in which those witnesses answered questions in cross-examination and the documents to which it was referred during the course of the hearing, makes the following findings of fact on the balance of probabilities:-8.1 The claimant was born on 11 February 1985. She began work for the respondent company on 14 June 2006 and was dismissed effective from 16 September 2016. At the time of her dismissal the claimant was employed as LLDD (learners with learning difficulties or disabilities) Manager.

8.2 The respondent company is one of a group of companies effectively controlled by the GQ who is a director. The group of companies had at one time employed some 180 employees but at the material time had employees numbering approximately 160. A fellow director of GQ was Paul Bagnall (“PB”) who is the father of the claimant. GQ and PB had worked together for many years until PB retired from the respondent in July 2015. An agreement had been reached between PB and GQ for GQ to acquire the shares of PB in the respondent subsequent to his retirement. The events central to this case have resulted in that offer being withdrawn and, as a result, relations between GQ and PB have substantially deteriorated.

8.3 The respondent company provides education and training services and part of that provision is to people with learning difficulties and/or disabilities. It is a closely regulated sector and the respondent is subject to inspections from, amongst others, OFSTED.

8.4 One of the places of business of the respondent was Westgate College which is owned by NCC and it operated in a small annex (“Westgate”) there. In that building the respondent delivered training pursuant to a contract between itself and NCC. The most recent contract (“the Contract”) between the respondent and NCC at the material time was that at page 75 onwards which was a contract for the provision of learning for a period of 12 months from 1 September 2015 with an option to have an extension for a further period to 31 July 2017. The Contract was detailed and included at section B7 (pages 89-90) provisions that NCC reserved the right to refuse to admit or to withdraw permission for any of the employees of the respondent to enter Westgate College and also a provision at clause B7.4 which read – “The decision of the Council as to whether any person is to be refused access to any premises occupied by or on behalf of the Council shall be final and conclusive”. In addition clause B7.5 read, “The Contractor shall replace any of the Contractor’s Employees who the Council reasonably decides have failed to carry out their duties with reasonable skill and care. Following the removal of any of the Contractor’s Employees for any reason, the Contractor shall make sure such person is replaced promptly by another person with the necessary training and skills to meet the requirements of the Services”.

8.5 The Contract provided for the respondent to deliver to learners with severe learning difficulties training in English and Maths and Employability and Functional Skills. The training was delivered by tutors supported by learning assistants and often the service users would be accompanied by their own carers. The service users were relatively few in number given the high degree of need evinced by them and of the necessity for one to one, if not more than one to one, personal tuition. The claimant’s husband had been RESERVED JUDGMENT Case Number: 2501187/2016 a tutor on the Contract and indeed remained so until his employment came to an end through an agreed settlement in November 2015.

8.6 The claimant had worked for the respondent and effectively worked her way up through the ranks and had fulfilled the role of tutor in Maths for which she was qualified but at the material time had effectively become the manager in the sense that she was the person at Westgate to whom all staff (numbering some 20/30) were to refer in the event of problems. We find that if a matter which was raised with the claimant was beyond her skill or experience, she would refer them to her father PB who made frequent visits to Westgate - at least several times a week. We conclude that the claimant was the “go to” person at Westgate for the staff but she did not have formal line management responsibilities for them. She did not carry out appraisals or supervision of staff and if there were serious staff issues they would be referred to and dealt with by PB and if necessary by GQ. We reject the evidence of GQ that the claimant was in full control of staff at Westgate.

8.7 The claimant became pregnant and it was agreed that she would begin maternity leave on 8 July 2015. The claimant did so and gave birth to her son on 24 July 2015. The claimant intended to take 12 months away and it was intended that she would return to work on 10 July 2016.

8.8 The claimant’s maternity leave coincided with the retirement of her father and the claimant attended a retirement party in July 2015 shortly before she gave birth. Before the claimant left for maternity leave she was in charge at Westgate of delivery of the provision required to be delivered by the Contract which in turn was fulfilling a contract between NCC and the Skills Funding Agency (“SFA”). In addition the claimant was providing the service in relation to a contract held by the respondent with the Education Funding Agency (“EFA”) which was a direct contract between the respondent and EFA. Some of the provision required by the EFA contract was delivered at Benton House which was the main office of the respondent but such provision as required by the EFA contract as was delivered at Westgate was delivered under the control of the claimant as set out above. We find that at the time the claimant began her maternity leave she was spending approximately equal amounts of time on the EFA contract and the Contract. We find that the amount of time spent by the claimant between those two contracts varied over the weeks and months depending upon the requirements of the contracts themselves.

8.9 During the second half of 2015 the claimant raised a grievance in relation to matters which had occurred at her father’s retirement party on 23 July 2015. She set out her grievance in a letter of 21 August 2015 (page 134). The grievance was investigated and the claimant’s maternity leave replacement, Sam Riley, wrote to her on 21 September 2015 (page 143) with the outcome of the grievance which was partially upheld. The claimant was not happy with the outcome and wrote to GQ on 24 September 2015 (page 146) which was not in fact an appeal but which was raising issues in respect of the way the grievance had been conducted. That matter is not of much significance or relevance to this Tribunal.

8.10 In early January 2016, GQ was contacted by NCC and made aware that an anonymous complaint had been received about the provision provided by the respondent at Westgate under the Contract. The matters raised were serious and GQ RESERVED JUDGMENT Case Number: 2501187/2016 was summoned to a meeting at NCC with Caroline Miller (“CM”) - an official of NCC. There were several meetings between GQ and CM and at one of those meetings PB was in attendance having agreed to offer assistance to GQ on the matter. It was made plain that safeguarding issues had been raised and that a confidential investigation was to be undertaken by NCC. PB made it plain to CM and to GQ that the claimant was not to be contacted about the matter because she was away on maternity leave and she was ill. Furthermore, at that time it appeared that the matters which had been complained about had arisen after the claimant had left for her maternity leave and were not therefore of relevance to her. The claimant was made aware of the necessity for the NCC investigation by PB but the information was conveyed in an informal way. 8.10 On 2 February 2016 the claimant accessed her e-mail account held in the respondent’s IT system and noted the 27 e-mails dating from 25 October 2012 until 15 June 2015 largely from her husband to herself had been accessed and forwarded to Sam Riley’s work and personal e-mail accounts and the work e-mail accounts of GQ. Some of the e-mails had had critical comments added into them. This upset the claimant and she raised the matters with GQ in an e-mail of 2 February 2016 (page 308). As a result GQ invited the claimant to a grievance hearing. The claimant in fact did not wish to formally raise a grievance and her union representative Ian Grayson (IG) contacted GQ on 8 February 2016 to advise him of that and therefore the respondent decided to investigate the claimant’s complaints informally and on 16 February 2016 (page 154) GQ wrote to the claimant in the following terms:- “I can confirm that the local authority requested e-mails for the purposes of an investigation into a number of concerns raised by an anonymous individual and as we are accountable to the local authority we complied with their request. As you are on maternity leave we did not ask you to do this”. GQ reminded the claimant quite properly of the company policy which allowed them to access e-mails held on all their own systems. The claimant was not satisfied with that action and on 10 March 2016 (page 167) raised a formal grievance about the matter with GQ and attended a grievance meeting taken by Pauline Bell of the respondent on 12 April 2016 (page 186).

8.11 On 15 April 2016 the claimant and her husband were visited by the police who stated that they were investigating a complaint received from Sam Riley on 8 April 2016 in respect of an alleged threat made by the claimant’s husband to Sam Riley. That visit resulted in no further action save that the claimant complained about it and added the issue to her grievance by writing to Pauline Bell on that same day (page 193). The claimant was not happy with the response that she received and therefore formally updated her grievance on 26 April 2016 (page 200).

8.12 On 27 April 2016 the claimant and her husband had a second visit from the police this time investigating an alleged unlicensed and illegal firearm. This information had been gleaned from the e-mails which had been accessed from the claimant’s machine and as a result the claimant raised a further grievance on that matter by writing to Pauline Bell on 28 April 2016 (pages 201-202). Further correspondence on the point took place between GQ and the claimant on 28 April 2016 (page 204).

8.13 On 3 May 2016 (page 206) GQ wrote to the claimant a letter which reads:- RESERVED JUDGMENT Case Number: 2501187/2016 “I am writing to notify you that the NCL contract has been terminated from 31 May 2016 on the following grounds: Council considers that the evidence uncovered as part of the safeguarding investigation constitutes a breach of contract terms and conditions and also a breach of SFA funding criteria covered within the contract terms; Continuing to fund ID could bring the council into disrepute; Loss of confidence in the management and college for ID; Failure of ID to report the safeguarding issues. I also attach a letter from Caroline Miller in respect of the transfer and of the contract and the team as of 31 May 2016. As you can see from the letter you are not included in the transfer and I ask you to come in to consult with me on this matter as soon as possible”.

8.14 That correspondence failed to enclose two letters which the respondent had received from NCC. Those two letters were a letter dated 21 March 2016 (page 175) in which NCC had exercised their right to remove the claimant and her husband Gareth Howie from the Contract and a letter of 29 March 2016 (page 177) which had in fact terminated the Contract effective from 31 May 2015. The claimant pointed out that the letters referred to had not been sent to her and GQ then sent onto her the letter of 21 March 2016 (page 175). When the claimant received that letter she was shocked given that it removed her from the Contract and this was the first she knew of it.

8.15 The claimant responded to GQ and suggested meeting with him. On 6 May 2016 GQ suggested there should be a “fact finding exercise” (page 215) and that the meeting would take place on 13 May 2016 at Benton House. On 4 May 2016 Pauline Bell had given the claimant the outcome of her grievance in respect of e-mails which the claimant did not accept and appealed.

8.16 On 13 May 2016 the claimant met with GQ. This meeting took place at the claimant’s request at Jesmond Library (pages 225-230). The claimant was made aware of the safeguarding allegations which were principally made against her husband and the claimant was able to advise GQ that one of the allegations in respect of not allowing a learner to visit the toilet had not been upheld when investigated by NCC. The claimant made clear her position that she was not the line manager of the staff at Westgate and in particular not the line manager of her husband. She made clear her position that no one had come to her regarding safeguarding issues related to her husband or any other member of staff. The claimant also asked why NCC had not contacted her in relation to their investigation. GQ explained that her father had stated that she would not be available for interview because she was unwell and GQ advised the claimant that she needed to take that matter up directly with NCC if appropriate. It was agreed that further investigation would continue and that GQ would keep in touch with the claimant. On 14 May 2016 the claimant made a complaint to NCC about the investigation. That complaint was ultimately rejected on 3 August 2016.

8.17 On 17 May 2016 the claimant wrote to Pauline Bell with details of her appeal against the grievance outcome and attended a grievance appeal meeting on 10 June 2016 with Ian Grayson.

[9]Having deliberated on the question of liability, the Tribunal determined that the claimant was entitled to a remedy. It therefore moved on to deal with remedy. For the sake of convenience our findings of fact are here set out in respect of remedy which we make on the same basis as our findings of fact on liability. 9.1 The claimant received pay until 16 September 2016 and therefore has no loss until that day. The claimant was paid £27,600 per annum gross at dismissal which equates to £530.76 per week. It is accepted that the claimant received £1,834.66 per month net which equates to £423.38 per week net.