Mrs Karen Faulkner v NHS Business Services Authority: 2600050/2017
EMPLOYMENT TRIBUNALS
Case No 2600050/2017
Between
Mrs Karen FaulknerClaimantNHS Business Services AuthorityRespondent
Before
Employment Judge AhmedMr Edmund Beever (instructed by Counsel) for claimantMr James Boyd (instructed by Counsel) for respondentDate 14 September 2018
JUDGMENT
[1]The Claimant was constructively and unfairly dismissed in respect of an express term of her contract of employment and by reason of a breach of the implied term of trust and confidence.[2]The Claimant’s complaint that she was constructively and unfairly dismissed by reason of making a protected disclosure is dismissed.[3]The issue of remedy shall be determined on 15 and 16 February 2018 at 10:00 am at the Nottingham Hearing Centre.
REASONS
[1]In these proceedings the Claimant brings complaints of constructive unfair dismissal in relation to alleged breaches of express and implied terms of her employment. She also claims in the alternative that she was constructively and unfairly dismissed by reason of having made a protected disclosure.[2]At this hearing I heard evidence from the Claimant on her own behalf and on behalf of the Respondent I heard evidence from Mr Myles Timson and Mrs Karen Warren, both of them at the relevant time Senior HR Business Partners with the Commissioning Support Unit (‘CSU’) of East Midlands. Mrs Warren is no longer employed by the Respondent. In coming to my decision I have taken into consideration the oral evidence of the witnesses, their statements, the documents in the agreed bundle and the submissions made by Counsel on both Page 1 of 12 sides to whom I am grateful.[3]The facts of the matter unless otherwise indicated are not in dispute. The Claimant originally brought her proceedings against Arden and Greater East Midlands Commissioning Support Unit (Arden and GEM CSU) but at an earlier Preliminary Hearing it was accepted that the correct Respondent should be the NHS Business Services Authority. Arden and GEM is in fact a CSU which provides support to Clinical Commissioning Groups (‘CCG’) to NHS England, local authorities and a range of care providers. The CSU does not directly employ any staff. The day to day management of the NHS Business Services Authority staff, or at least those within this relevant group, are managed by Arden and GEM CSU on behalf of the NHS Business Service Authority.[4]There are a number of CCGs throughout the country. The relevant CCG in this case was the Southern Derbyshire CCG which provides clinical commissioning support for emergency ambulance services and non-emergency patient transport services (NEPTS) to four Derbyshire CCG’s, namely Erewash, Hardwick, Southern Derbyshire and North Derbyshire. The Claimant was an ‘embedded’ employee within a CCG, that is to say she worked within the CCGs whilst not being employed by them.[5]The Claimant’s role consisted of three main elements:-5.1 To act as Commissioning Manager for NEPTS on behalf of the four Derbyshire CCGs;5.2 To act as the Derbyshire representative for the Collaborative Commissioning and Quality Assurance meetings of the East Midlands Ambulance Service (EMAS);5.3 To be the Derbyshire representative for the Collaborative East Midlands Home Oxygen Service Contract.[6]The Claimant was in a senior leadership role. She worked full time which included working at home 2 days a week. There is no dispute that at all times the Claimant undertook her performance and duties well and was a highly valued employee.[7]In November 2015 the Claimant’s employment was transferred under TUPE to the Southern Derbyshire CCG. She remained in an embedded role which meant that to all intents and purposes line management and day to day matters were undertaken by the CCG as opposed to the CSU.[8]In February 2015, the Claimant made a protected disclosure in relation to tender irregularities for the procurement of a new NEPTS contract for the provision of ambulance services for the Derbyshire region. The Claimant claimed that she had been placed under pressure by a Mr Rakesh Marwaha, then Chief Officer of Erewash CCG, to improve the tender prospects of Mr Marwaha’s preferred bidder, EMAS, by deleting scores and entering revised scores in the tender offer on two occasions. The first occasion was in October 2014. At one of those meetings Ms Jackie Jones, whom the Claimant believes was a Director of Commissioning for EMAS was also present. On the second occasion, when Ms Jones was apparently not present, it is alleged by the Claimant that pressure was applied on her at the final evaluation meeting to achieve results in favour of a particular outcome by altering scores. Although Ms Jones was not present at the second of those two meetings, Ms Lynn Willmott-Sheppard, then Director for Page 2 of 12 Commissioning for Erewash CCG, was. The Claimant declined to alter the scores and instead reported the matter to senior management. It is understood that Mr Marwaha was then subsequently subjected to disciplinary action. There is no evidence any action was taken against Mrs Jones. There has never been any suggestion of any wrongdoing on the part of Ms Willmott-Sheppard. As a result of the disclosures the NEPTS procurement process was cancelled and was put out to re-tender.[9]In May 2015, discussions as to the Claimant’s TUPE transfer of her embedded role from Arden and GEM CSU to Southern Derbyshire CCG. The Claimant had no objection in principle. In November 2015 Mr Mike Hammond, Head of Urgent Care at Southern Derbyshire CCG, wrote to Arden and GEM CSU to say that the role which the Claimant occupied was to be TUPE transferred over. On 17 December 2015 Mr Hammond wrote to Mr Timson of Arden and GEM CSU to say, inter alia, that the TUPE transfer involved measures which “do not constitute substantial changes in working conditions [of the Claimant]. ”[10]The Claimant was invited to a series of meetings in 2016 in relation to the proposed transfer. The first of those meetings took place on 29 January 2016. There is nothing controversial as to that meeting. The Claimant understood that the change was a “like for like” swap of the roles and up to that point the Claimant had no objections.[11]The second consultation meeting on 4 February 2016 was much more troubling. It is the Claimant’s evidence, which I accept, that some two hours prior to that meeting she was informed that she would no longer be permitted to work from home (which she had done for some time) and that the EMAS element of her role, which the Claimant regarded constituted 50% of her job, was to be unilaterally removed from her. There was no indication as to where it was going, who was to do it or the reason for the change.[12]During the course of discussions in relation to the transfer, most of which were conducted via e-mail, there are two e-mails which are central to the Claimant’s subsequent grievance. They are both from Mrs Kate Schroeder, Interim Head of Commissioning at Southern Derbyshire CCG.[13]In the first of those e-mails dated 8 February 2016, Ms Schroeder wrote: “Thanks for your help Helen. I just don’t know how anyone can do a real role from home one hundred per cent esp one with contract commissioning in leadership – the feedback from Jackie re EMAS is that Karen rarely ever showed to meetings and never contributed – and transformation which is the only 50 per cent role we might find her (EMAS now in my hands at Gary and the collaborations request, and PTS contract is the only remaining part of her current brief).”[14]In the second email, dated 9 February 2016, Ms Schroeder writes: “Wondering the date of Gary’s talk to all staff explaining the realignment? And given Jackie’s reply re Karen’s rare attendance at EMAS meetings, what she has been doing during her day.”[15]Both e-mails were sent to the Claimant. It is clear from the context that this was an error and they were intended for someone else.[16]On 9 February 2016 there was a meeting between the Claimant, Mr Hammond, Mr Timson and others. It was a pre-arranged TUPE meeting and Page 3 of 12 was not called specifically in relation to the emails. It was confirmed to the Claimant that there was no objection to the Claimant working from home. It was also agreed that a new job description would need to be prepared though this had not yet been done. However the Claimant drew a link between the emails and the disclosure she had made earlier. It was agreed that the meeting would be adjourned to allow the Claimant to decide what action she wished to take and in particular whether she wished to lodge a grievance.[17]The following day, 10 February 2016, the Claimant confirmed that she did indeed wish to lodge a grievance and that she wished to do so under the whistleblowing policy. Mr Timson appointed Mrs Karen Warren, another Senior HR Manager, to deal with the matter. Mrs Warren investigated and produced a report on 31 March 2016. A copy of this was sent to the Claimant on 6 April. Mrs Warren concluded that there was “no relationship between the whistleblowing raised in the previous year and the events surrounding the change to Mrs Faulkner’s role”. Mrs Warren accepted that the e-mails were sent in error and that Ms Schroeder was prepared to offer a face to face meeting to apologise and explain the rationale behind the emails.[18]A conference call was planned on 7 April to discuss the grievance outcome but by this stage the Claimant was too distressed to take part having broken down in tears at a meeting the previous week. The conference call was postponed. The following day the Claimant went on sick leave. The absence continued throughout the end of April and May. On 16 June the Claimant was referred to occupational health.[19]On 22 July the Claimant submitted her letter of resignation.[20]On 25 August 2016 the Claimant notified ACAS of early conciliation. The ACAS early conciliation certificate was issued on 9 September 2016.[21]On 20 January 2017 the Claimant presented her claim form to the Tribunal.
THE LAW
[22]Section 95 (1) of the Employment Rights Act 1996 (‘ERA 1996’) states: “For the purposes of this Part an employee is dismissed by his employer if (and subject to subsection (2) and Section 96, only if):- (a) the contract under which he is employed is terminated by the employer (whether with or without notice), (b) he is employed under a contract for a fixed term and term expires without being renewed under the same contract, or (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[23]Section 95(1)(c) ERA 1996 describes a form of dismissal which is commonly called constructive dismissal.[24]In accordance with the principles established in Western Excavating v Sharp [1978] IRLR 27, for an employee to succeed in demonstrating that she has been constructively dismissed, the Tribunal must be satisfied that the employer has either broken a principal term or terms of the contract or has Page 4 of 12 evinced an intention to be no longer bound by them. The breach must be of such seriousness as to strike at the very root of the contract. The employee must resign in response to a breach.[25]The Claimant in this case relies both on breaches of express term or terms as to job role and a breach of the implied term of trust and confidence. In relation to the latter, the relevant test was set out in Malik v BCCI [1997] ICR 606, where Lord Steyn said that the employer must not:- “without reasonable and proper cause conduct itself in a manner calculated and [or] likely to destroy or seriously damage the relationship of trust between employer and employee”[26]The Claimant relies on the ‘last straw’ doctrine. This was explained in Lewis v Motorworld Garages Ltd, [1986] ICR 157, as being: ''…… the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?[27]In Omilaju v Waltham Forest London Borough Council [2005] IRLR 35, the Court of Appeal made it clear that the whilst the final act in a series of other acts may not in itself be blameworthy or unreasonable, it had to contribute something to the breach even if relatively insignificant so long as it was not utterly trivial. An entirely innocuous act cannot be a final straw even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his or her trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined is ultimately objective.[28]It is agreed that it is enough that the repudiatory breach was an effective cause of the employee’s resignation rather than being the effective cause – see Wright v North Ayrshire Council [2014] ICR 77.[29]In Yorke & Grant Yorke, Partners of and Trustees in the Firm of Yorkes of Dundee v Patricia Moonlight [2007] UKEAT/0025/06, a decision of the Scottish EAT and a rare case of constructive dismissal involving the actions of third parties, Lady Smith (at paragraphs 11 and 19) said: “It is, however, plain that the focus is on the employer’s conduct and that one does not get to the point of considering whether or not the conduct complained of amounts to breach of the implied term of trust and confidence unless it is first established that the conduct complained of is conduct of the employer (or for which he can, in law, be held responsible). We can see that the conduct of a third party could be relevant in a constructive dismissal case. If, for instance, an employer were to fail without reasonable and proper cause, to take reasonable steps to control the behaviour of a third party who repeatedly causes upset and distress in the workplace, we can see that such failure might be seen as being in breach of the implied term of trust and confidence.”
THE ISSUES
[30]It is agreed that the issues are as follows:- 30.1. Did the Claimant resign (wholly or partly) because of an act or omission (or a series of acts or omissions) by the Respondent? In that respect the Claimant relies upon:-30.1.1 A unilateral variation of contract amounting to a breach of Page 5 of 12 the express term or terms that the Claimant should be able to undertake the role of Clinical Commissioner. It is alleged that this term was breached in respect of the EMAS role, in relation to additional duties and in respect of the NEPTS aspects of the role.30.1.2 Whether there was a breach of the implied term of trust and confidence in respect of:-30.1.2.1 The Respondent’s acts and omissions leading to the Claimant’s reduction in job role, no alternate job description and an absence of any consultation with her in respect of proposed changes for a period of two months leading up to 7 April 2016.30.1.2.2 The handling of the grievance process and in particular the failure to investigate the underlying reasons why the Claimant lost allegedly 50% of her job role as well as the Claimant’s allegation that changes to her job role were connected to whistleblowing.30.1.2.3 The final straw - being the outcome of the grievance process which the Claimant received on 6 April 2016.30.1.3 Whether the CCG at all material times acted as agent of the Respondent for the purpose of managing the Claimant’s employment and accordingly whether it is liable for the acts and omissions of the CCG. 30.2 Whether any of the above amounted to a fundamental breach of contract? 30.3 Whether the Claimant waived her right to resign by reason of any affirmation? 30.4. Whether the main reason for the constructive dismissal of the Claimant was that she had made a protected disclosure and/or whether the main reason for the dismissal was the unilateral variations of the Claimant’s contract because she had made a protected disclosure?
CONCLUSIONS
[31]The circumstances in which the Claimant was employed as an embedded employee was a somewhat unusual one. Mr Timson agreed that it was difficult to deal with because not only was it new to the NHS but also because he had not had practical experience of this type of arrangement before. In terms of the degree of control, the day to day functionality was decided by the CSU but all practical management of the Claimant was undertaken by the CCG. It was agreed, and if not agreed I would find, that there was very little consultation or influence exercised by the CSU over the CCG. Although they there was an understanding that the CCG would consult the CSU, this was practically undertaken only as a matter of courtesy rather than because of any sense of obligation. In answer to a question to Mr Timson in evidence as to whether, if the CCG wanted the Claimant to spend all her time on a mundane task (such as processing invoices for example) there was anything to stop the CCG from doing so, Mr Timson’s reply was that the CCG could ostensibly impose that and it Page 6 of 12 would not be seen as requiring advance approval from the CSU. Mr Timson’s evidence, given frankly and honestly, was that if the CCG wanted to make any changes to the Claimant’s role they would simply go ahead and make them and simply inform the CCG later rather than seeking permission first.[32]In those circumstances, the question that naturally arises is whether an agency relationship (by implication) existed - as there is no specific allegation against Mr Timson breaching the Claimant’s contract of employment – and if so whether any breaches by the ‘agent’ can be visited upon the Claimant’s actual employer. The agency Issue[33]It is agreed that an agency arrangement is one that can be evidenced by either express terms or by conduct. It is not disputed that the CCG had full authority to act in the operational and day to day management of the Claimant including line management. The practical effect of the Claimant being embedded in the CCG was that the Respondent had very little influence, let alone control, over day to day working arrangements of the Claimant.[34]In relation to the creation of an agency, I have been taken to passages from Bowstead on Agency, not all of which are necessary to set out here. Relevantly at page 43 (‘Creation of Agency’), the learned authors state that: “The relationship of principal and agent may be constituted:-(a) by the conferring of authority by the principle on the agent, which may be express, or implied from the conduct or situation of the parties;(b) retrospectively, by subsequent ratification by the principal of acts done on his behalf.”[35]In commenting upon this the authors go on to state: “This general statement seeks only to give an indication of the ways in which the relationship of principal an agent can arise in the full sense, creating internal rights and duties between principal and agent and giving the agent external authority to affect the principal’s legal relations with third parties.”[36]Mr Boyd for the Respondent submits that the correct legal analysis of the relationship between the Respondent, the Claimant and the CCG is not that the CCG acted at all material times as the Respondent’s agent but that the CCG was a ‘connected third party’ to the Respondent. He submits that in the light of the practical lack of control and influence by the Respondent on the CCG in terms of its dealings with the Claimant, that (leaving the contractual terms to one side) the Respondent must be judged against what it might reasonably be expected to do by way of intervention taking all of the contextual facts into consideration. In the employment context he refers to the case of Yorke and in particular to paragraphs 11 and 19 for his submission that the employer can only be responsible for a breach of the implied term of trust and confidence if the conduct complained of is conduct of the employer or for which he can in law be held responsible.[37]I am satisfied that this present arrangement constituted a relationship of principal and agent within the ambit set out in Bowstead on Agency and the passages cited above. What is in issue here is really the scope of the authority not the existence of one. I am satisfied that the level of authority devolved to the CCG was such that they were able to not only make wholesale changes to the Page 7 of 12 Claimant’s job description but also to do so without having to seek authority from the CSU. It is unnecessary for me to make findings as to the nature, extent and reach of the agency relationship because those matters as I say go the scope rather than the existence of an agency relationship. Any other conclusion would not only produce a bizarre result in that the CCG could act as they please without recourse but would also remove any employment protection for the Claimant. There is nothing in the passages cited from Bowstead which would militate against a finding of an implied principal/agency relationship. So far as the passages from Yorke are concerned, the matter seems to depend heavily on the facts of each case. Whilst the focus must be on the employer’s conduct, Lady Smith acknowledges that this may include conduct of the employer “for which he can, in law, be held responsible” (my emphasis). This is such a case where it can and should. Breach of an express term[38]Whilst not formally conceded, I am satisfied that that there was a significant unilateral removal of the Claimant’s duties and responsibilities. A very large proportion of the Claimant’s role was removed without just cause. The Claimant has repeatedly referred to it as being as much as 50%. Mr Timson acknowledged that large parts of the Claimant’s role had been removed and whilst he could not place a percentage upon it he acknowledged that the Claimant’s role was significantly reduced.[39]I am satisfied that there was a very substantial and significant reduction of the Claimant’s role, duties and responsibilities. The loss was not attributed to any TUPE factor. Whether it was actually 50% or thereabouts, it was clearly significant and substantial. In addition to being excluded from the second procurement of the EMAS role (the first having ended due to inappropriate pressure) the Claimant was not copied in on any communications in relation to the new contract. Mr Kevin Parkinson was brought in by Ms Schroeder to take over the contract negotiations was told not to copy the Claimant in on any communications in relation to the second contract. The EMAS role which was a significant part of the Claimant’s job was taken away and given to a more junior and less experienced employee. There can be no doubt that large sections of the Claimant’s responsibilities set out in her job description (which is conceded as a contractual document) were taken away without explanation. The Claimant says, which I accept, that she was left with “very little to do other than some admin work”.[40]Mr Boyd relies upon a variation clause in the Claimant’s contract as justification for the unilateral removal of those duties. Any such clause is of course subject to the principle that it can only apply to “reasonable” changes, on which there is no direct evidence. In any event the contractual provision that the job description “may be reviewed” is not satisfied because there was in fact no review concluded by the time of the resignation and no amended job description had been produced.[41]In those circumstances the removal of duties amounted to a breach of an express term or terms of the contract. There is no doubt having regard to the extent of the reduction in duties that it was a fundamental breach which went to the root of the contract of employment.[42]I am satisfied that the removal of the duties and responsibilities was a reason, and an important reason at that, for the Claimant’s resignation. It was an objection that the Claimant had raised after she became aware of the changes. Page 8 of 12 The Claimant had protested continuously throughout the process as to the changes and the removal of the responsibilities was cited as a reason for leaving within the resignation letter. Breach of trust and confidence[43]The Claimant relies upon three matters in respect of breach of the implied term of trust and confidence – the Respondent’s acts and omissions for two months up to 7 April 2016, the handling of the grievance process and the outcome of the grievance process itself (which is also relied upon as the final straw).[44]It was candidly accepted by Mr Timson that the Claimant was unsupported on her side in the consultation process for the purposes of TUPE. It is factually correct to say that the Claimant did not receive an alternate job description despite the very many and substantial changes. There was an absence of consultation in relation to the changes in the period leading up to 7 April 2016. I am satisfied that whilst was an act in a series of cumulative acts relevant for last straw purposes.[45]The handling of the grievance process was criticised at length by Mr Beaver and rightly so. Mr Boyd submits that one has to take a realistic view as the handling of grievances should not be subjected to excessively detailed analysis which a lawyer might be able to undertake who has much more time to dissect such processes, a luxury not always available to those having to deal with them.[46]However, it seems to me that it does not require a lawyer to recognise that this was by any standards a poorly handled grievance. The grievance policy of Arden and Gem CSU used for this has an ‘Informal Resolution’ and ‘Formal Resolution’ process and procedure. The process undertaken by Mrs Warren does not appear to sit comfortably within either of them. There are mixed elements utilised of both. The end result is something which is not envisaged by the policy at all. Despite the fact that the Claimant’s complaint was one of whistleblowing (as is clear from the Claimant’s e-mail which for good measure was set out in bold and underlined) and thus should have been the focus, Mrs Warren identified her remit as a grievance of ‘bullying and harassment’. Mrs Warren identified the six allegations by lifting them word for word from the e-mail itself, she completely omitted the first two paragraphs of the grievance, which clearly explain that the grievance was one of whistleblowing. Indeed the investigation into whistleblowing appears to play second fiddle to less important matters such as why the Claimant erroneously received the e-mails instead of concentrating on their content. Mrs Warren makes ‘recommendations’ and comes to ‘conclusions’ despite the fact that she believed she was in the ‘informal stage’ when no conclusions are envisaged. At no point does she make it clear to Mrs Faulkner that this is only intended to be indication of her views rather than a final outcome so that Mrs Faulkner can press the matter further to a hearing. Mrs Warren’s report has all the hallmarks of finality with an intention to conclude the matter subject to any appeal. In fact, Mrs Warren does not even refer to any right of appeal thus giving the impression that this was it.[47]In addition the manner in which the information was gathered was regrettable. There appear to have been no face to face meetings with any of the interviewees. The conversation between Mrs Warren and Mrs Faulkner was brief and on a poor mobile telephone connection. Mrs Faulkner told her that the signal was not very clear (she was apparently in a car at the time) and it was not Page 9 of 12 possible to have any detailed conversation then. There was no attempt to have a conversation later, to have a face to face meeting or to invite the Claimant to come to the office to discuss the matter directly despite the serious nature of the complaints and allegations. The conversation with Mrs Faulkner came at the end of Mrs Warren’s investigation rather than at the beginning. Mrs Warren appeared to take at face value what she was told by Ms Jones as to her belief that Mrs Faulkner contributed very little at meetings ‘based on minutes of the meeting’. Mrs Warren did not actually look at the minutes themselves. Mrs Warren went on to say that she “accepts that the details may have been paraphrased or taken out of context when passed on to a third party” but it is not clear what the basis of that conclusion was. Her recommendation that there should be a face to face meeting with an offer of an apology failed to address the complaint. Either Mrs Faulkner had suffered a detriment because of whistleblowing or she had not. A face to face meeting to offer an apology was neither here nor there.[48]I recognise that Mrs Faulkner did not refer to the failings in the grievance process within her resignation letter at a time when she was receiving legal advice and I did consider carefully whether all of these criticisms were a factor in her decision. On balance, I am prepared to conclude that they were for two reasons. Firstly, the Claimant was extremely upset the day after she received the grievance outcome report and was unable to proceed with a conference call planned. Secondly, the Claimant gave compelling evidence at this hearing that it was the report which “tipped her over the edge” and thus had an effect on her overall decision to resign.[49]In the circumstances I am satisfied that the handling of the grievance and the delivery of the grievance outcome amounted to a ‘last straw’. Neither of them can be said to be amount to innocuous acts as they certainly contributed something to the breach or series of breaches. Accordingly the allegation as to a breach of the implied term succeeds. Affirmation[50]Mr Boyd argues that the Claimant has by her conduct waived any breaches and affirmed the contract. In particular he relies upon two matters. Firstly, the acceptance by the Claimant of sick pay from 6 April 2016 (the date of the alleged last straw) and her resignation on 22 July. Secondly, the Claimant’s engagement with the sickness absence process and in particular her request at an occupational health meeting on 8 June 2016 for her to remain on full pay, instead of half pay, which would have commenced in July.[51]The leading case on affirmation is WE Cox Toner (International) Limited v Crook [1981] IRLR 443. That case was recently considered in Colomar Mari v Reuters Limited [2015] UKEAT/0539/13. In particular I am referred to paragraph 14 of Cox Toner where the EAT said, inter alia: “An employee faced with a repudiation by his employer is in a very difficult position. If he goes to work the next day, he will be doing an act, which in one sense, is only consistent with the continued existence of the contract, he might be said to be affirming the contract. Certainly, when he accepts his next pay packet (ie, further performance of the contract by the guilty party) the risk of being held to affirm the contract is very great.”[52]In Colomar, HH Judge Richardson referred to that passage as well as the earlier EAT decision of Fereday v South Staffordshire NHS Primary Care Trust (UKEAT/05/13/10). In the latter case the employee was dissatisfied with a response to a grievance and appealed. At the same time she asked the Respondent to exercise its discretion to continue her pay on full pay as sick pay Page 10 of 12 rather than the contractual provision of 6 months full pay followed by 6 months half pay. The EAT found that the Claimant had affirmed the contract.[53]In the Fereday case there were apparently other factors in addition to the acceptance of sick pay which went towards the finding of affirmation. In any event the Claimant’s request for full pay was subsequently denied. Moreover, it would in my view be deeply unjust to defeat an otherwise successful claim of constructive dismissal simply because the Claimant had asked for contractual pay which request was in any event denied. Whistleblowing issue[54]Whilst it is not formally conceded, I am satisfied that the Claimant made a protected disclosure in February 2015. It was treated as such. It bears all the hallmarks of a disclosure concerning the failure to comply with the legal obligation. In those circumstances it would easily the definition of a qualifying disclosure under section 43B ERA 1996. There is no dispute that the disclosure was a disclosure of ‘information’ or that the Claimant had a reasonable belief in making the disclosure. The only issue is one of causation.[55]This has been an unusual case is that there has been no direct evidence from those involved in the CCG, not least perhaps because they are not the Respondent in these proceedings. In particular has been no evidence from Ms Jones whose testimony might have been relevant.[56]The question at the end of the day is whether the main reason for the (constructive) dismissal was that the Claimant had made a protected disclosure. That leads to the question of why Ms Jones said what she did about the Claimant.[57]Mr Beaver accepts that this part of the claim is not about the actions of Mrs Warren or Mr Timson and that their conduct so far as the whistleblowing is concerned is irrelevant. Mr Beaver points to the sudden and unexplained loss of a significant part of the Claimant’s job role shortly after the receipt of the two e-mails from Ms Schroeder which were comments or reports emanating from Ms Jones.[58]In the absence of evidence from Ms Jones, I cannot be certain as to her motivation in providing the information to Ms Schroeder. Equally, I cannot be certain as to the motivation, thought process or reasoning behind the remarks made that the Claimant rarely showed at EMAS meetings, contributed within them or in asking what the Claimant was doing during the day implying that the Claimant was not working at full capacity. It would be wrong for me to speculate upon Ms Jones’ reasons for saying what she did. In the absence of any primary facts I am unable to draw any inference that the reasons were in any way connected to or caused by reason of the protected disclosure.[59]On the other hand there are good reasons why it is unlikely that there is any causal connection between the protected disclosure and the resignation:-59.1 The conduct in question which led to the protected disclosure was that of Mr Marwaha who was subsequently disciplined. There is no evidence that Ms Jones was ever disciplined in relation to the disclosure. That would suggest an absence of any motive on the part of Ms Jones.59.2 It is quite possible that Ms Jones may have honestly held her Page 11 of 12 beliefs about the Claimant’s performance and work irrespective of any protected disclosure.59.3 Some of the comments which the Claimant found upsetting appear to be (on at least one reasonable interpretation of the e-mails) the views of Ms Schroeder and not those of Ms Jones. There is no suggestion that Ms Schroeder was motivated by any protected disclosure.59.4 The protected disclosure had occurred a long time ago and nothing had happened in the interim to prompt recrimination or reprisal.59.5 There is nothing to suggest that Ms Jones would have the necessary influence for the CCG to suddenly change its plans from a transfer with no material changes to one where significant elements of the Claimant’s job role were to be removed.[60]I do not find any causal link between the protected disclosure and the treatment of the Claimant. Accordingly the complaint of constructive dismissal by reason of whistleblowing is dismissed. The issue of remedy is adjourned.
CONCLUSIONS
[1]The Respondent is ordered to pay to the Claimant compensation for unfair dismissal of £2,155.50 representing the basic award.[2]The Claimant is entitled to loss of earnings for a period of 31 weeks in respect of the compensatory award.[3]The remaining issues as to the calculation of the compensatory award are adjourned to 13 and 14 August 2018.
CONCLUSIONS
[1]This was a hearing on the issue of remedy the tribunal having decided earlier that the Claimant was constructively and unfairly dismissed. The complaint of automatic unfair dismissal by reason of having made a protected disclosure was dismissed.[2]At this remedy hearing the Claimant gave oral evidence on her own behalf. Mr Myles Timpson gave evidence on behalf of the Respondent as he did at the liability hearing. The Claimant was once again represented by Mr Beever of Counsel and the Respondent by Mr Boyd of Counsel. I am grateful to them both for their submissions.[3]Prior to the remedy hearing the Claimant produced a schedule of loss (a ‘remedy statement’) and the Respondent produced a counter- schedule of loss setting out their respective positions. The Claimant’s schedule of loss assesses her compensation at £175,997.62. The Respondent’s counter-schedule asserts that the maximum compensation the Claimant should receive should be no more than £25,796.80. It is agreed that the statutory cap for the purposes of calculating the compensatory award under Section 124(1ZA) Employment Rights Act 1996 (“ERA 1996”) applies. The maximum compensatory award the Claimant can possibly be awarded is £46,821.00.[4]The Claimant was born on 4 January 1959. She commenced her employment with the Respondent on 30 September 2013. The effective date of termination was 22 October 2016, the Claimant having submitted her resignation on 22 July 2016 with 3 months notice. The Claimant therefore had 3 years’ continuous service with the Respondent. It is agreed that her gross salary was £40,964.00 and that her gross weekly pay was £787.76. Both the Claimant and Respondent made contributions to the pension scheme. The net weekly pay is not agreed.[5]The following matters are agreed:5.1 That the Claimant’s basic award should be £2,155.50;5.2 That the Claimant should be entitled to a sum for loss of statutory rights at £300.00;5.3 That the Recoupment Regulations apply;5.4 That following the decision in University of Sunderland -v- Drossou [UKEA/0341/16], employer’s pension contributions should be added to the calculation of a week’s pay. There is disagreement as to whether the employee’s contributions to the pension should be taken into account.[6]Before her resignation the Claimant began to suffer from stress and anxiety. She went on sick leave on 8 April 2016 and remained absent by reason of sickness until the date of termination. There has not been any finding that the Claimant’s absence was caused by the Respondent’s conduct. The Claimant did not find alternative employment upon termination and was unemployed. She signed on for Job Seekers’ Allowance on 12 December 2016 and received state benefits until 8 April 2017.[7]As part of her eligibility for Job Seeker’s Allowance, the Claimant had to be considered as ‘actively seeking work’. She registered with four employment agencies and also made applications to potential employers directly. At paragraph 8 of her witness statement the Claimant sets out the jobs she applied for together with the relevant documentation. She applied for a Contracts Manager job with the NHS in July 2016. In November 2016 she applied for two roles, both of them for them being Strategic Principal Transport Co-ordinator roles. She applied for four jobs in December 2016 as Senior Contracts Manager, Head of Assurance and Quality Inspector with the Care Quality Commission and as a Clinical Disability Assessor. In January 2017 she applied for a Paramedic Clinical Advisor role. She applied for five jobs in February 2017 all of them with the NHS or emanations of the NHS. She applied for three roles in March 2017 as Project Co-ordinator, End of Life Service Project Manager and Disability Assessor in a contracting role. In April 2017 she applied for a Public Health Commissioner post in Dudley. On 24 May 2017 she applied for an NHS Commissioning Manager Plan Care Role. That is the last job for which the Claimant has provided any documentary evidence.[8]In relation to the Disability Assessor role the Claimant was invited to a telephone interview which took place on 30 March 2017 and a further interview on 24 April 2017. She completed an online test a couple of days later and was successful in her application. The role is as a self-employed contractor. It involves accessing the Department of Work and Pensions server to download information about the medical condition of applicants seeking Personal Independence Payments. An assessment is undertaken online. Payment to assessors is dependant on the number of assessments completed. The number of assessments offered to contractors can vary. There is no guarantee of a fixed regular or minimum payment.[9]The Claimant was told that she would need to complete a training (induction) course before she could start undertaking assessments. These courses are run twice a year in August and October and last approximately 5 weeks. Candidates are paid during the training process but not in the period between the offer of a role and the training. The Claimant’s ‘employer’ was confident that Mrs Faulkner would be allocated a place on the August course but as it transpired no vacancy was available and she ultimately completed the course in November officially starting her role on 26 November 2017. However that was the week before the hearing in these proceedings and so there was a further short delay. She eventually completed her first assessment on 12 December 2017 receiving payment on 5 January 2018. The period between the Claimant being offered the role and deriving any income from was thus over 9 months.[10]Although we have not seen any documentation, the Claimant’s evidence was that she was expecting to be given at least 10 assessments per week. However the numbers are far less. In January 2018 she was only able to earn £540 from assessments offered. In the week immediately before this remedy hearing she was offered only 3 assessments. She considers it unlikely that the work will increase significantly in the near future. She has therefore decided to look for employment elsewhere to provide a decent level of income.[11]The Claimant’s training and background is as a Paramedic but now feels that she is too old to work on front-line Paramedic services. She has looked into training courses which would enable her to apply for roles as an Emergency Care Practitioner which would allow her to work in GP surgeries and at minor injury units. That is better paid and is less physically demanding than front-line Paramedic roles. However the training costs of such courses are approximately £10,000.00 which is not financially viable at present or economically worthwhile in the long run given that by the time of the completion of the course the Claimant would be close to her intended retirement date and would not be undertaking the role for very many years.
The issues
[12]The issues for this remedy hearing were agreed as follows:12.1 In respect of the compensatory award what should be awarded for past and future loss of earnings? This in turn leads to the following related issues;12.1.1 If the Claimant had not resigned would her contract of employment have TUPE transferred to Southern Derbyshire Clinical Commissioning Group (‘CCG’) in any event?12.1.2 If the Claimant had not resigned would she have been dismissed by reason of ill health capability in any event?12.1.3 If the Claimant had not resigned would the Claimant have been dismissed by reason of redundancy?12.1.4 Has the Claimant failed to mitigate her loss?12.2 What should be the amount in respect of pension loss?12.3 What was the Claimant’s net weekly pay?[13]It was agreed between Counsel that I should initially deal with the first of those issues only because if Mr Beever’s primary submissions as to the Claimant’s loss were accepted, the Claimant’s compensation would exceed the statutory cap and therefore any further arguments as to loss of pension rights would be unnecessary.[14]Although the third of those issues (the weekly net pay) could have been determined at this hearing it now falls to be determined later. The issue arises to some extent following the EAT’s decision in Drossou. Mr Boyd (who was one of the Counsel appearing in Drossou) accepts, as he no doubt must, that the employer’s contributions must be added to the calculation of a week’s pay. However Drossou does not appear to deal with the question of whether the employee’s contributions to the occupational pension scheme should be added in too, on which Drossou appears to be silent.[15]Given that this issue only became apparent fairly late in the day, and as the parties will need to return on the more substantive issue of pension loss, it was agreed that this issue should be dealt with when the matter returns for the second part of the remedy hearing.[16]Sections 123(1),(2) and (4) ERA 1996, so far as they are relevant, state: “(1) Subject to the provisions of this section and sections 124, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (2) The loss referred to in subsection (1) shall be taken to include—(a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and(b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. … (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.”[17]The provisions of section 124 ERA 1996 are not relevant.[18]There is no dispute in terms of the applicable law or as to the following legal principles:18.1 that the question of a failure to mitigate is to be judged subjectively;18.2 that the proper question for the tribunal is to ask whether the employee has taken reasonable steps to minimise her losses;18.3 that the test is whether the Claimant has acted unreasonably (see: Wright v Silverline Care Caledonia Ltd [EAT S0008/16].18.4 that the burden of establishing unreasonableness is on the employer (see: Wilding v British Telecommunications plc [2002] ICR 1079.[19]The Claimant does not seek reinstatement or re-engagement. There is no documentary evidence or record of the Claimant applying for any other roles once she had successfully completed all online tests and interviews for the Disability Assessor Role which was on 19 May 2017.[20]I should say that there appeared to some confusion in the Claimant’s evidence on whether she continued to apply for any other roles after 24 May. I am satisfied however that she did not given that there are no records of job applications after that date whereas there are careful records of applications before then. CONCLUSIONS The TUPE transfer issue
CONCLUSIONS
[21]Mr Timpson gave evidence that if Mrs Faulkner had not resigned from the CSU she would have TUPE transferred to the Southern Derbyshire CCG. This had been the intention since November 2015. It would mean that the Claimant suffered no loss whatsoever. The circumstances in relation to the discussions regarding the proposed transfer are dealt with in the liability decision in particular at paragraphs 9 – 17 and it is not necessary to repeat them here.[22]Mr Timpson says that the TUPE transfer was simply placed on hold rather than stopped altogether and if the Claimant had not resigned the transfer would in all probability have gone ahead. In support Mr Timpson refers to various items of correspondence which show that even as late as 7 April 2016 there was a commitment to TUPE transfer Mrs Faulkner’s employment.[23]Whilst I agree with Mr Timson that the TUPE transfer discussions had merely been put on hold rather than the matter having concluded however what is likely to have transferred, if anything, was the Claimant’s reduced role which was infected with the repudiatory breach. I accept Mr Beever’s submission that there is no evidence as to what role the Claimant would have had at Southern Derbyshire CCG. No individual from the CCG has given as to what the Claimant’s role following any TUPE transfer would have been.[24]In those circumstances, I do not find that a TUPE transfer to Southern Derbyshire CCG would have altered the situation. The Ill-health capability issue[25]Mr Boyd submits that had Mrs Faulkner not resigned when she did her employment would have ended fairly soon in any event by reason of an ill-health capability dismissal.[26]It is correct to say that Mrs Faulkner was absent for a considerable period of time before her employment ended. She was off sick from around 8 or 9 April 2017. She submitted her resignation on 22 July, some 3 months later. Her employment ended after a further 3 months on 22 October 2016. There was therefore a period of 6 months between the start of her sickness absence and the effective date of termination. During that time the parties were in receipt of occupational health reports which indicated that the Claimant was unlikely to return to work. In a report of 28 August 2016 the occupational health practitioner states that: “Until the reason is put to bed there would be no change”. There was no indication or prognosis in August 2016 as to when the Claimant would be able to return to work.[27]The Respondent’s policies and procedures on long term absence, as opposed to short-term absences, are not entirely clear. The Respondent has a detailed absence management policy for capability as to short-term absences for which there is four-stage process but Mr Boyd rightly concedes that it does not necessarily apply to long-term absences. As to the latter, the situation is much more fluid and uncertain.[28]It cannot be said realistically, even with a degree of speculation, that the Claimant was at any real risk of dismissal by reason of absence through the capability procedures. The Respondent had not even begun to initiate the capability process at the effective date of termination let alone attempt to invoke it. I do not therefore accept that there was any reasonable possibility that the Claimant would have been dismissed for capability in any event if she had not resigned. It is far too speculative and uncertain to entertain the possibility. The redundancy dismissal issue[29]Mr Boyd submits that had the Claimant not resigned it is likely that she would have been dismissed for redundancy. It was found at the liability stage that a large part of the Claimant’s role had been removed. In line with the proposed changes Mr Boyd submits that redundancy was a real and distinct possibility.[30]This is perhaps the least plausible of all of the possibilities. Mrs Faulkner was never informed that she was at risk of redundancy. There had been no consultation to make her redundant. The submission that she might have been TUPE transferred is inconsistent with a possible redundancy. Whilst the risks of a potential redundancy having regard to the volatile nature of employment in the NHS generally are never too far away, redundancy dismissal in the present situation was not a realistic possibility. In all of the circumstances, I do not therefore find that the Claimant would have been made redundant in any event. Failure to mitigate[31]The most significant issue at this hearing is whether the Claimant has failed to mitigate her losses having regard to the provisions of section 123(4) ERA 1996.[32]The duty to mitigate does not arise until an employee has been dismissed. Although I am taken to a schedule of jobs at page 446 which sets out various “internal” roles that the Claimant could have applied for (within the wider NHS or related employers) whilst the Claimant was serving her notice, she cannot be criticised for not making any applications for those roles even though the Claimant appears to have given serious thought to some and even thought that she was being interviewed for one of them. However, I do not accept Mr Beever’s submission that it would be wrong to expect the Claimant to apply for a role within the NHS after she has found to be constructively dismissed by it. The NHS is a very large organisation with very many offshoots. The Claimant has herself predominantly applied for roles within the NHS following the termination of her employment. It is clear that she did not have any qualms about applying for roles in the wider NHS and other Trusts where she would have no dealings with those responsible for the constructive dismissal.[33]The Claimant’s position is that her loss of earnings continued from the effective date of termination (22 October 2016) to a point where she concluded that the Disability Assessor role was financially inadequate. That is a period of 66 weeks at (at least) £697.55 per week. This would mean past loss of £46,038.30 and would take the Claimant to just £783.01 shy of the maximum compensatory award. Her claim as to future loss of earnings, leaving aside any pension loss, is that she is entitled to 12 months of further losses at £2,133.86 per month which is £25,606.32 followed by a further loss of 5 years up to the date of her retirement.[34]Mr Boyd made a concession at the commencement of this hearing that the period for loss should be 40 weeks, thus ending on 24 July 2017. This concession was based upon the assertion that the Claimant’s past loss should be extended for two months after her very last job application on 24 May 2017. However, Mr Boyd then sought to withdraw the concession in the light of the Claimant’s evidence in cross-examination. An issue arose as to whether Mr Boyd was entitled to withdraw the concession or whether he was bound by it.[35]I shall deal with the last point first. It seems to me that there is no reason why a concession cannot be withdrawn after evidence suggests it was not appropriate to make it. The Claimant’s position is not materially prejudiced as a consequence of the withdrawal of the concession. At the end of the day it is a matter for the tribunal to determine the correct compensatory award having regard to the statutory provisions and the applicable legal principles. Notwithstanding the fact that the concession was made with a party represented by Counsel, it seems to me that the decision is ultimately a matter for the tribunal and any initial concession which is withdrawn does not bind the Respondent or the Tribunal.[36]In my view the appropriate period for loss of earnings should be no more than 31 weeks. This is the number of weeks between 22 October 2016 (the effective date of termination) and 24 May 2017. I arrive at that conclusion for the following reasons:36.1 There is no evidence of the Claimant having made any applications for jobs after 24 May. The Claimant gave slightly contradictory evidence on whether she continued to apply for jobs after that date. Initially she seemed to accept that she did not as no suitable jobs existed after that date for which she could apply. Insofar as the Claimant is suggesting that there were no suitable vacancies that cannot be correct because it is highly unlikely that vacancies within the NHS or elsewhere had suddenly ceased. Then the Claimant appeared to suggest that she was still actively seeking employment from June 2017 to October 2017. However there is no evidence of such applications. The evidence points to the Claimant ceasing to apply for jobs after 24 May because whilst there are clear records of all jobs applied for before then there is no evidence of jobs applied for after that date. In my view the Claimant unreasonably ceased to apply for jobs after that date when clearly she could and ought to have done so.36.2 As at 24 May 2017, the Claimant knew she was still a long way away from earning any income from the Disability Assessor role. She knew she still had to attend an induction course which would not be until at least August with a real possibility that it could even be October. She failed to make any efforts to mitigate her loss when she was a long way away from earning anything from the Disability Assessor role.36.3 The Claimant failed to apply for a reasonable number of jobs following the termination of her employment. She applied only for 2 jobs in November 2016. She made only 4 applications in the whole of December 2016, only one application in January 2017, 5 in February, 3 in March, only one in April and only one in May 2017. To make only recorded application in a month for two consecutive months is in my view unreasonable. Despite the relatively low level of applications the Claimant did not seek to obtain any feedback as to what was going wrong despite her relevant experience in the area and despite the fact that the Claimant was carefully selecting which jobs to apply for. The Claimant applied for only one role during her notice period of 3 months after she had decided to leave. Mr Beever argues that it is the wrong approach to look at the frequency of applications but rather one should consider whether the employee has failed to take such steps (such as turning down suitable new employment, for example) when considering the duty to mitigate. Insofar as it is an example of a failure to mitigate I do not disagree but I do not agree with the submission that the frequency of job applications is irrelevant. An employee who makes very few applications, and hence has fewer chances of securing alternative employment, cannot be in the same position as someone who makes a greater number of applications and makes more effort to find another job.[37]I accept that the Claimant began to suffer from anxiety and stress during her employment with the Respondent from which she did not recover by the date of termination and may not have fully recovered even by now. I made no finding in the liability decision, and in the absence of any medical evidence at this hearing, I am unable to make any finding now that the Claimant’s stress and anxiety condition was caused by the Respondent. Mr Boyd suggests that the Claimant’s other health scares, which were present around the time of her resignation, may have been a factor in the stress and anxiety. The Claimant denies that and in the absence of any medical evidence I am not satisfied that such health scares caused the stress and anxiety. Her mental state did not seemingly prevent her from applying for jobs post termination. To summarise, the relative scarcity of applications, the failure to continue making job applications for roles that were likely to be suitable roles after 24 May, the fact that the Claimant ceased searching for employment after 24 May at that point the Disability Assessor role (such as it was) was not going to earn her any income for several months down the line are to my mind instances of unreasonable conduct leading to a failure to mitigate. As such the Respondent has discharged its obligation in demonstrating a failure to mitigate after 24 May.[38]Mr Beever criticises the Respondent for failing to put to the Claimant specific vacancies which she could have applied for. It is often the case that employers at remedies hearing produce a long list of vacancies (frequently from agency websites) of jobs which the successful claimant could have been applied for and to use that as the basis to establish a failure to mitigate. Such an approach is rarely helpful. It is to the credit of the Respondent that it has chosen not to do so.[39]I am invited by Mr Beever to look at the facts rather than to speculate on what might have been. The fact is that there is no evidence of any jobs the Claimant applied for after 24 May 2017. Despite her flexibility in terms of location and role she ceased to apply for any jobs after that date. I see no reason why the Claimant should have a further two months of compensation from 24 May as the Respondent was initially prepared to concede. Her income from the Disability Assessor role was not likely to materialise in those two months. There was no lead-in period for which she should receive credit. It would not have escaped the Claimant’s attention that any income from the Disability Assessor role would not be due until September 2017 at the earliest and there was a chance it might not be until much later.[40]For those reasons the period assessed for past loss in respect of the compensatory award is 31 weeks.[41]For the avoidance of doubt I make no award for future loss.[42]The remaining issues as to remedy will be dealt with at the hearing on 13 and 14 August 2018, directions for which are given separately. The parties should take this as notice of that hearing in the absence of any other notice.