Ms Ewa Formela v Burt Bros (Hosiery) Ltd: 2602263/2018
JUDGMENT
[1]The name of the Respondent is amended to Burt Bros. (Hosiery) Limited by consent.[2]The Claimant was unfairly dismissed.[3]The Respondent is ordered to pay the Claimant a basic award of £3445.20.[4]The amount (if any) of the compensatory award for unfair dismissal which the Respondent will be ordered to pay the Claimant will be determined at a remedy hearing.[5]The Claimant’s claim of breach of contract is dismissed following its withdrawal at the Hearing on 21 May 2019 by the Claimant.REASONS
[1]The Claimant was dismissed by the Respondent with effect from 10 August 2018. On 2 October 2018 she presented a Claim Form to the Employment Tribunal in which she brought complaints of unfair dismissal and for breach of contract.[2]Those complaints came before the Employment Tribunal in Nottingham at a hearing held on 21 May 2019 (“the Hearing”). The parties were represented at that hearing as set out above. Before the Hearing the parties had agreed a bundle of documents, the numbering of which ran to page 63. Pages 64 to 69 were added to the bundle at the beginning of the Hearing with the agreement of both parties. These included the transcript of a meeting attended by the Claimant, Hannah Burt, Tracy Lewis and Alice Burt on 30 May 2018. The Respondent confirmed it had no objection to this being included, after having had an opportunity to compare it to the original audio recording during an adjournment early in the day. Page 1 of 10[3]All references to page numbers in these reasons are to the bundle page numbers unless otherwise stated.[4]The Claimant provided a witness statement for herself and gave oral evidence. The Respondent provided witness statements for the following individuals who also gave oral evidence: Ms H Burt (a director of the Respondent), Ms T Lewis (the finance manager of the Respondent), and Vicky Sloan (the manager of the Bentinck hotel).[5]The Claimant gave evidence in Polish through an interpreter. This and the translation of the proceedings more generally meant that the Hearing progressed more slowly than would have otherwise been the case. Submissions did not finish until 4.35pm. I therefore did not have time to reach a decision and give judgment on the day so I reserved my judgment. The discussion at the beginning of the Hearing and the issues[6]There was some discussion of the Claimant’s breach of contract claim. Mr Shannon explained that it was accepted that in the end the Claimant had received the notice monies to which she was entitled. The breach of contract was said to be the Respondent requiring the Claimant to carry out duties as a general labourer following a round of redundancies in 2016 when she was in fact employed as a “sock finisher”. After further discussion, Mr Shannon indicated that he would pursue this issue as part of the Claimant’s unfair dismissal claim and that the Claimant’s breach of contract claim was withdrawn.[7]The issues between the parties arising as a result of the Claimant’s unfair dismissal claim which potentially fell to be determined by the Tribunal were then agreed to be as follows:[1]Has the Respondent shown the reason for dismissal? The Respondent says the reason was the Claimant’s inability to perform the work she was required to perform.[2]Was the reason for dismissal a potentially fair reason? The Respondent says it was capability or Some Other Substantial Reason (“SOSR”).[3]Was the dismissal fair pursuant to section 98(4) of the Employment Rights Act 1996 (“the 1996 Act”) (including whether the dismissal was procedurally fair)? The Claimant argues that it was not because:a. She was dismissed because she could not perform general labouring duties but in fact she was employed as a sock finisher;b. The Respondent did not seek any prognosis in relation to the Claimant’s condition – it relied on her sick note of 22 May 2018 without making further enquiries of a medical nature and dismissed her just a week later;c. The Respondent only gave 24 hours’ notice of the meeting on 30 May 2018 and did not say what that meeting was about, the Respondent did not give notice of the possible consequences of that meeting, and the Claimant was not given the opportunity to be accompanied at it;d. The Claimant was not given an opportunity to appeal.[4]If the dismissal was unfair, had the Respondent unreasonably failed to comply with provisions of the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the ACAS Code”) and, if so, would it be just and equitable in all the circumstances to increase any compensatory award made by no more than 25%?[5]If the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the Claimant would still Page 2 of 10 have been dismissed had a fair and reasonable procedure been followed / have been dismissed in time anyway?[6]If the dismissal was unfair would it be just and equitable to reduce the amount of the Claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to the 1996 Act section 122(2); and if so to what extent?[7]If the dismissal was unfair, did the Claimant, by blameworthy or culpable actions, cause or contribute to her dismissal to any extent; and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award, pursuant to the 1996 Act section 123(6)?[8]It was agreed that remedy issues, subject to one exception, would be dealt with separately at a remedy hearing if the dismissal were found to be unfair. The exception was this: if I concluded that the dismissal was unfair and that the Claimant was entitled to a basic award, then the amount of the basic award was agreed as being £3445.20.The Law
[9]Section 94 of the 1996 Act gives an employee the right not to be unfairly dismissed.[10]Section 98(1) of the 1996 Act provides that when a Tribunal has to determine whether a dismissal is fair or unfair it is for the employer to show the reason for the dismissal and that such reason is a potentially fair reason because it falls within section 98(1)(b) or section 98(2) of the 1996 Act. The burden of proof to show the reason and that it was a potentially fair reason is on the employer.[11]A reason for dismissal is a set of facts known to, or beliefs held by, the employer which cause it to dismiss the employee. In this case the Respondent says the reason for dismissal was that it believed the Claimant could no longer do her job as a result of ill health.[12]If the Respondent persuades the Tribunal that the reason for dismissal was a potentially fair reason, the Tribunal must go on to consider whether the dismissal is fair or unfair within the meaning of section 98(4) of the 1996 Act. This requires the Tribunal to consider whether the decision to dismiss was within the band of reasonable responses.[13]Section 98(4) applies not only to the actual decision to dismiss but also to the procedure by which the decision is reached. The burden of proof is neutral under section 98(4).[14]In considering this question the Tribunal must not put itself in the position of the Respondent and consider what it would have done in the circumstances. That is to say it must not substitute its own judgment for that of the Respondent. Rather it must decide whether the decision to dismiss the Claimant fell within the band of reasonable responses which a reasonable employer might have adopted. A claim will not succeed just because the Tribunal takes the view that the decision to dismiss was harsh if it nonetheless fell within the range of reasonable responses.[15]There are at least two key aspects to the fairness of a dismissal in relation to an illness or injury which has involved or will involve long term absence from work.[16]First, whether the employer can be expected to wait longer for the employee to return. Factors to weigh in the balance may include the availability of other staff to carry out the work of the absent employee, the nature of the illness, the likely length of the absence, the cost of continuing to employ the employee, the size of the Page 3 of 10 employer and the generally unsatisfactory situation of having an employee on very lengthy sick leave.[17]Secondly, whether a fair procedure has been followed. This will include consultation with the employee, establishing the nature of the illness or injury and its prognosis, and considering other options, in particular alternative employment within the employer’s business.[18]If the Tribunal concludes that the dismissal is unfair, section 123 of the 1996 Act provides for a compensatory award to be made. Section 123(1) provides: Subject to the provisions of this section and sections 124, 124A and 126, 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.[19]It is therefore necessary for the Tribunal to consider whether the compensation awarded should be reduced to reflect the chance that the Claimant might have been dismissed fairly at a later date in any event or if a fair and reasonable procedure had been used.[20]In addition, section 123(6) of the 1996 Act requires the Tribunal to reduce the amount of the compensatory award by such amount as it considers just and equitable if it concludes that the Claimant caused or contributed to their dismissal. Further, section122(2) of the 1996 Act requires the Tribunal to reduce the basic award if it considers that it would be just and equitable to do so in light of the conduct of the Claimant prior to dismissal.Findings of Fact
[21]I am bound to be selective in my references to the evidence when explaining the reasons for my findings. However, I wish to emphasise that I considered all the evidence in the round when reaching my conclusions.Background
[22]The business of the Respondent is textiles. The Claimant was employed by the Respondent as a “sock finisher” in 2007. The job description contained in her contract of employment (page 21) was “ensuring final product is checked and packed to a good standard. Keeping the surrounding area clean and tidy”. A “sock finisher” would turn out trim, paper, inspect, pack and bar code socks when they had come out of the knitting machine and been washed.[23]As a result of a loss of customers, in around 2016 the Respondent closed its knitting plant. This resulted in a large reduction in its need for sock finishers. All the sock finishers apart from the Claimant were dismissed by reason of redundancy and paid redundancy payments. Following the closure of its knitting plant in Nottingham, the Respondent did continue to sell socks, but they were not made in Nottingham.[24]The Claimant was not, however, dismissed. The Respondent wished to retain her services because it regarded her as a good employee. She therefore continued in its employment but her duties changed. As a sock finisher she had spent perhaps 80% of her time packing socks and perhaps 20% lifting and carrying boxes around. After the redundancies, her role was more varied. She would increasingly assist and cover for Debbie Morris, a manager. She would finish socks when required (for example, if the bar codes on an order had been incorrectly applied by the manufacturer and needed changing before being sent on to the client). However her work increasingly involved unloading deliveries of products from lorries. Page 4 of 10[25]The Respondent and the Claimant did not expressly agree any variation to the Claimant’s duties. However I find that the Claimant did not object to the changes to her duties: in her oral evidence, when asked if she was unhappy that she had not been made redundant in 2016, she said “I was happy that I could stay at work and could work”. I also find that the Appellant did from time to time voice concerns about the heaviness of the unloading work. I do not find, however, that she ever said anything which could be regarded as her objecting to doing the amended duties.[26]In 2017 the Claimant began to suffer pain in her left shoulder and back. She had an appointment with her GP on 22 May 2018 and was given a Statement of Fitness for Work (“Fit Note”) (page 37) which stated she had “left shoulder and back pain”. It said she might be fit for work on “amended duties”, in the “Comments” section the GP had written: left shoulder pain and back pain-since 5 months, please consider amending pts job duties to avoid lifting heavy objects. to consider a different role in the warehouse in view of ongoing and worsening shoulder and back pain. [Typographical and other errors as they appear in the original.][27]The Fit Note of 22 May 2018 went on to state “This will be the case indefinitely”.[28]The Respondent provided the Claimant with lighter duties for a few days. Then, on 29 May 2018, Ms Lewis wrote a letter to the Claimant (page 38) which contained two short single sentence paragraphs: This is to notify you that we would like to have a meeting on Wednesday 30th May 2018 at 10.30am to discuss your capability to work following your presentation of your Statement of Fitness for Work. You are invited to bring a representative with you.[29]The meeting took place on 30 May 2018. It was brief, taking less than ten minutes. A transcript of it was included in the bundle (page 65). The Claimant recorded the meeting because she does not speak English very fluently and she likes to record such meetings so that she can go through what was said afterwards. At that meeting: 29.1. The Claimant was very pessimistic about her ability to do her job in the future because of the lifting involved but noted that she had to take medication for a month and then, after that, would have physiotherapy; 29.2. There was some discussion of her working at the Bentinck Hotel which is owned by the Respondent. However the view of Ms H Burt, having spoken to Ms V Sloan, was that the role there involved “a lot of lifting”, there is the boxes of beer and the boxes of wine, everyday they get trolleys… It’s quite physical because [Ms Sloan] has a bad back as well and she struggles and she’s said it’s quite tough… There is no point trying if you are going to struggle because it’s a mixed job….”; 29.3. Ms H Burt said that the Respondent only had limited work for the Claimant which did not involve lifting: “It’s basically packing really or very light cleaning which isn’t going to fill all the day. So we are only talking about 20% of the day depending, like at the moment there’s only us so it’s two weeks. After that there may be nothing for two or three weeks, we just don’t know” 29.4. The view of those in attendance for the Respondent was that unless the Claimant had “any suggestions” she was not capable of doing the job that she was employed to do and would be dismissed; Page 5 of 10 29.5. The Claimant could not come up with any suggestions. She commented: “I don’t know it’s… I can packing, I don’t know, I didn’t think about it. They do very fast for me, everything happen”; 29.6. There was a very brief discussion of whether Collins or Ms H Burt’s partner might have a job for the Claimant. Ms H Burt offered to ask her partner about this and the Claimant said she would like her to (“oh, yeah, yeah”); 29.7. The Respondent’s position at the conclusion of the meeting was that unless the Claimant could come up with “suggestions” she would be dismissed.[30]Following the meeting on 30 May 2018 the Claimant did attend the Bentinck hotel on 31 May 2018. She discovered that lifting and carrying were indeed involved and that she could not manage them. She returned to the Respondent’s premises and told Ms H Burt this. Ms H Burt said that she had received a good report of the Claimant from management at the Bentinck hotel but the Claimant said she could not manage the work. I note that the Respondent’s evidence about when the Claimant had attended the Bentinck hotel was that it had been at an earlier date. However the Respondent’s witnesses were not clear about the date and I find that it was 31 May 2018 and not earlier. I so find because the Claimant was clear about the date and, also, because the transcript of the meeting on 30 May 2018 suggests that the Claimant had not before that date attended the Bentinck hotel.[31]The Claimant was given the letter of dismissal at page 39 which is dated 30 May 2018 on reporting that the Bentinck hotel job would not be suitable for her on 31 May 2018. The letter stated: This is to notify you that following the meeting held today we have no option but to terminate your contract due to your incapability to do your job owing to health reasons. We discussed alternative roles with you but unfortunately we have nothing to offer that would not aggravate your condition. As per your contract, you are entitled to 10 weeks notice and your employment will end on 10th August 2018. I would like to thank you for all your hard work and loyalty to Burt Bros and wish you well for the future and should you require any references we will gladly provide these.[32]I find that the Ms H Burt, Ms A Burt and Ms Lewis had reached a decision to dismiss the Claimant by shortly after the end of the meeting on 30 May 2018 unless she could accept a role at the Bentinck hotel. The decision therefore took effect on 31 May 2018 when the Claimant indicated that she could not work at the Bentinck hotel because of the carrying and lifting involved.[33]The Respondent did not offer the Claimant the possibility of appealing her dismissal either in the letter of dismissal or orally.[34]The Claimant continued to attend work and between 1 and 18 June 2018 was given lighter work to do. Then Ms Morris asked the Claimant to do heavier work again. This aggravated her shoulder and back and she attended her GP again on 21 June 2018. She was given a Fit Note (page 40) which stated she was suffering from “left shoulder pain, awaiting physiotherapy” and said that she was not fit for work until 18 July 2018. On 18 July 2018 she was given a further Fit Note by her GP (page 41) stating that because of “L shoulder / upper back pain” she was not fit work until 14 August 2018. Page 6 of 10[35]The Claimant’s employment ended on 10 August 2018 before the expiry of this last Fit Note.[36]I have noted above that Ms H Burt observed during the meeting on 30 May 2019 that there was some light work available that time, equating to about 20% of the Claimant’s working week. I find in light of her oral evidence and that of Ms Lewis that there would have been about 2 hours work each day that the Claimant could have performed and then occasionally more: Ms H Burt gave as an example in her evidence a digit being wrong on a Tesco bar code and consequently there being perhaps three months of full-time work changing the bar code labels.[37]Ms H Burt’s evidence was that they thought a part-time role would necessarily involve working 3 or 4 hours a day. In addition, in oral evidence both she and Ms Lewis said that they did not think that the Claimant would have accepted such a role. However they did not voice an objection in principle to employing the Claimant for two hours a day and accepted that this would have been possible.[38]I find that the Respondent simply did not consider offering the Claimant a part-time role working two hours a day. This is because neither Ms H Burt nor Ms Lewis suggested that they had considered this and there is absolutely no discussion of such a possibility at the meeting on 30 May 2018. The Claimant’s oral evidence was that she would have accepted such a role. However I accept the evidence of the Respondent’s witnesses that by 31st May 2018 the Claimant was asking for a redundancy payment (something which the Claimant accepted in her oral evidence). I find that by 31st May 2018 the Claimant was dissatisfied with the way that she had been treated. I therefore find that there is a 50% chance that she would have accepted a part-time job working 2 hours a day. That is to say there is a 50% chance that she would have accepted such a job whilst she looked for other work and had the physiotherapy referred to by her GP for her shoulder and back problems. Conclusions The principal reason for dismissalConclusions
[39]In light of my findings of fact above, I conclude that the principal reason for the Claimant’s dismissal was that Ms H Burt, Ms Lewis and Ms A Burt who took the decision to dismiss her believed in light of the Fit Note of 22 May 2019 and what was said at the meeting on 30 May 2019 that the Claimant was not capable of performing the role which she had performed since the closure of the knitting plant in 2016 (when the other sock finishers had been made redundant) and that that state of affairs was permanent. Whether the reason for dismissal was a potentially fair one[40]The factual reason for dismissal means that the reason for dismissal was a potentially fair one, because it related to the Claimant’s capability. (In this context “capability” means “capability assessed by reference to skill, aptitude, health or any other physical or mental quality” of the employee (section 98(3) of the 1996 Act)). Whether the dismissal was fair or unfair in accordance with section 98(4) of the 1996 Act[41]The Claimant contended that the dismissal was unfair because she was employed as a “sock finisher”, a role that she was capable of fulfilling at the date of her dismissal, and yet had been dismissed because she was not capable of perform “general labouring”. Page 7 of 10[42]I conclude, however, that following the round of redundancies in 2016 the contract of the Claimant was varied so that by the date of her dismissal her role was as set out in paragraphs 24 and 25 above. I conclude that agreement to the variation of her role can be implied from the fact that the Claimant performed different duties without objecting to the change from a date in 2016 until her dismissal. Further, given that this was a case when the variation introduced by the Respondent had immediate effect, it is appropriate to imply agreement.[43]Turning to the other matters relied on by the Claimant in support of her argument that the dismissal was unfair, it is incorrect to say that the Claimant was not given an opportunity to be accompanied at the meeting on 30 May 2019 in light of the reference in the invitation letter (see paragraph 28) to the possibility of bringing a “representative with you”. However there were other aspects of the Respondent’s dismissal procedure which were not at all satisfactory. In particular: 43.1. The letter did not explain that the Claimant might be dismissed as a result of the meeting. It was “to discuss your capability to work”. Given that at this point the Claimant had not been absent from work for any period of time and had simply requested amended duties, there was nothing in the letter which might reasonably have led her to believe that her job was on the line and to prepare for the meeting accordingly; 43.2. The Respondent’s consideration of the Claimant’s position was cursory. This is reflected in: 43.2.1. the length of the meeting on 30 May 2019 (less than 10 minutes) which led directly to her dismissal; 43.2.2. its more or less complete failure to take any steps to establish the nature of the illness/injury from which the Claimant suffered and the prognosis for it. Rather, it relied on a single Fit Note saying amended duties would be needed “indefinitely” and what the Claimant said at the meeting on 30 May 2019; 43.2.3. its failure to properly consider alternatives to dismissal. This is seen both in the brevity of the meeting on 30 May 2019 and, also, in the failure to offer the Claimant the part-time work that was available because the Respondent had simply not considered the possibility (the assumption that she would not have accepted such a job was a post facto justification, not a contemporaneous consideration); 43.2.4. What can only be regarded as the unseemly haste of a process which went from a Fit Note being handed in on 23 May 2019 to a notice of dismissal being prepared just a week later. 43.3. Having so quickly reached a decision to dismiss, the Respondent failed to offer the Claimant an opportunity to appeal its decision. The letter of 30 May 2018 offered no right of appeal and I find that none was offered orally either.[44]The consequence of my conclusions in the previous paragraphs is that the Respondent failed completely to follow a fair and reasonable procedure in reaching its decision to dismiss the Claimant, who had completed more than 10 years’ employment with it, and as a consequence her dismissal was unfair.[45]I should note at this point that I have no doubt that the Respondent’s failings as set out above arise at least in part as a result of those responsible for the Claimant being insufficiently informed about employment law matters and failing to take appropriate advice. It became apparent during the course of her cross-examination that Ms T Lewis (who described herself as having “managed the HR” of the Respondent) had Page 8 of 10 no real idea of even the basics of a fair dismissal. For example, it was evident that she was unaware of the existence of the ACAS Code. This is a startling admission for someone responsible for HR matters at any company. The Respondent’s general lack of appropriate knowledge was also seen in the repeated apologies of Ms H Burt in her oral evidence for “shortcomings in processes”.[46]Polkey: I should now consider what would have happened if a fair and reasonable procedure had been followed. I conclude that if a fair and reasonable procedure had been followed the Respondent would have offered the Claimant part-time duties working 2 hours a day. I conclude in light of my findings set out above that there is a 50% chance that she would have accepted this offer and so would have continued in employment with the Respondent on that amended basis from the beginning of June 2019 rather than being dismissed. I further conclude that if a fair procedure had been followed and the Claimant had chosen not to accept the alternative employment then her employment would have ended four weeks later than it did.[47]However, in light of the fact that as at the day of the Hearing the Claimant was still suffering from the same shoulder and back problem, I conclude that if the Respondent had followed a reasonable procedure that would not have resulted in the Claimant at any point returning to full-time employment in the role in which she was employed immediately before her dismissal.[48]Contribution: the Claimant was not guilty of culpable or blameworthy conduct prior to her dismissal which caused or contributed to her dismissal or of conduct which might lead me to conclude that it would be justice and equitable to reduce her basic award. Insofar as the offer of employment at the Bentinck hotel is concerned, I find in light of how Ms H Burt spoke about it in the meeting on 30 May 2018 that it was quite clearly not suitable for the Claimant. I also expressly find that the Claimant was not guilty of any culpable or blameworthy employment in relation to the possibility of employment by Ms H Burt’s partner. No evidence was produced that Ms H Burt had progressed this as she said she would at the meeting on 30 May 2018 and I do not accept that she did in the absence of such evidence in light of the vagueness of Ms H Burt’s oral evidence in this respect.[49]ACAS Code: I conclude that the ACAS Code does not apply to internal procedures operated by an employer concerning an employee’s alleged incapability to do the job arising from ill-health (Holmes v QinetiQ Limited [2016] IRLR 664). Consequently I make no order for an increase in the compensatory as a result of non-compliance by the Respondent with the ACAS Code.[50]Remedy hearing: if the parties cannot agree the amount of the compensatory award to be paid the Respondent, there will be a remedy hearing to determine the amount. Separate orders have been made in this regard.[51]In preparing for that hearing the parties should bear in mind that the Tribunal will consider the loss the Claimant has incurred since her dismissal as a result of not having been offered a job working for 2 hours a week. As such in general terms her loss will be two hours’ wages a week reduced by 50% (to reflect the fact that she might not have accepted the job), less any wages she has earned in the meantime from new employment.