Mrs L Purvey v Ashfield Healthcare Ltd: 2602776/2019
EMPLOYMENT TRIBUNALS
Case No 2602776/2019
Between
Mrs L PurveyClaimantAshfield Healthcare LtdRespondent
Before
Employment Judge AhmedIn person for claimantMr G Anderson (instructed by Counsel) for respondentDate 24 February 2021
JUDGMENT
[1]The Claimant is ordered to pay a deposit of £1,000.00 as the Tribunal considers that the complaint of pregnancy and maternity discrimination has little reasonable prospect of success.[2]The complaint of unfair dismissal is not struck out and no order for deposit is made in respect of that complaint.[3]Case management orders in relation to the hearing of the case are set out separately.
REASONS
[1]This was a preliminary hearing to determine whether the tribunal should strike out the Claimant’s complaints of pregnancy and maternity discrimination and/or unfair dismissal. Alternatively to determine whether a deposit order should be made in respect of those complaints.[2]At an earlier preliminary hearing case management orders were made which included an order that there should be mutual exchange of witness statements, (limited to matters to be considered at this preliminary hearing only) by no later than 3 March 2020.[3]The Claimant produced two “statements” from those other than herself (who were not called to give evidence) but did not produce a statement of her own. Given that her ET1 is in very brief terms, the Claimant’s allegations as to pregnancy and maternity discrimination and unfair dismissal are therefore in the briefest of terms. As it was the factual basis for this hearing was determined on oral evidence given by the Claimant and in particular questions asked of her in cross-examination.[4]Included in the Claimant’s two witness statements from the Claimant was a statement from Mr Donal Burke, then Group Head of Procurement and Estates. The Respondent gave evidence from two witnesses at this hearing; Mrs Ailsha Newman, HR Director and Ms Leah Payne, Senior HR Adviser, whose statements had been prepared and served earlier.[5]The facts of the matter for the purposes of today’s hearing are relatively straightforward. I do not identify material dispute of fact only an interpretation as to some of the documentation in the bundle and in particular the interpretation of an email from Mr Burke to Ms Newman of 30 May 2018. This email only came to the Claimant’s knowledge following a Subject Access Request post her dismissal.[6]The Respondent is part of a Group of companies based both here and in the USA with the parent company being UDG Healthcare plc. It provides contracts sales outsourcing to the Healthcare and Pharmaceutical industries. The Claimant was initially employed as a Purchase Ledger Assistant on a fixed term contract. She moved into a permanent role with the Respondent as a Finance Support Assistant in 2009.[7]During her employment the Claimant had three periods of maternity leave: the first from May 2013 to November 2013 (returning to a role of Divisional Estates Manager) the second from July 2016 to 14 June 2017 and the third from 12 March 2018. Upon her return from the second period of leave the Claimant submitted a flexible working request and in line with her request her role was effectively made part-time, working 31.5 hours per week. It is the events of the third period of maternity leave which is the subject of these proceedings though the second is relevant insofar as it resulted in her working part-time on a job share in the Procurement Team with Miss Emma Loader, Group Procurement Executive.[8]In 2018, the Respondent undertook a general review of the business as a result of which there was a re-structure. So far as the Procurement team was concerned 4 employees were placed at risk. There were internal emails in connection with the process. In what the Claimant regards as a crucial email from Mr Burke to Ms Newman of 30 May a list of employees who could be at risk were identified and discussed. Under the heading entitled “in scope and possible date subject to cons, process etc” there are a list of names which are those who were identified as being at risk. They include the Claimant. Next to her name, and what is agreed to have been written by Mr Burke, there are the following: “need advice, currently on maternity leave”. There is then another heading entitled “out of scope”. There are two names set out therein. One of them is that of Mr Cy Talbot.[9]In October 2018, the Claimant made a second flexible working application, which was accepted, reducing her working days from 4 days to 4 days per week. This was granted on condition that the Claimant undertook a job share with Ms Loader. Ms Loader would work on Tuesdays, Wednesdays and Thursdays and the Claimant would work on Thursdays and Fridays. There would be a handover of any matters between the two on Thursdays. I am satisfied that at that time Ms Loader was undertaking predominantly procurement work whilst the Claimant was undertaking Estates work but both supporting each other if necessary.[10]The Claimant’s maternity leave was due to come to an end on 11 March 2019. She then however began a period of shared parental leave followed by annual leave. She was expected to return to work on 2 September 2019.[11]During the Claimant’s absence on maternity leave, Mr Cy Talbot was appointed Divisional Head of Procurement. His appointment followed a competitive assessment process. The other three candidates were all those identified as being at risk. After they failed in their application for Divisional Head of Procurement, they were all made redundant.[12]Whilst the Claimant was on maternity leave the Respondent identified that the Estates work had reduced significantly. Shortly after his appointment as Divisional Head of Procurement, Mr Talbot decided to leave the business. It was then decided that Ms Emma Loader would undertake the work previously done by Mr Talbot. Ms Loader agreed to work full-time in order to do so. It is agreed that the Claimant was not informed of these changes whilst she was on maternity leave for which the Respondent apologised. The Claimant’s allegation of pregnancy and maternity discrimination is that she never had the chance to apply for the job which was offered to Mr Talbot because she was on maternity leave and was never informed of its existence. The Respondent says this was nothing to do with her maternity leave but only those who were at risk could apply and were informed. The Claimant was not at risk. The reason why the Claimant was not considered or informed of the vacancy was therefore, they say, because of not being eligible. It is the Claimant’s contention that Mr Burke’s email shows the Claimant was in the at risk category because her name was in the same list as others who were identified as being “in scope”. It is the Respondent’s case that the Claimant was never placed at risk because she was on maternity leave[13]In the absence of a witness statement from the Claimant I have considered the allegations as set out in the ET1. These are themselves fairly brief but I take the final four paragraphs of the ET1 to set out the position. They are, to summarise, as follows:13.1 That the Claimant’s role was not redundant as the work had not diminished. This is an allegation of both unfair dismissal and maternity and pregnancy discrimination.13.2 That the Claimant’s working days/hours were allocated to another employee. This is also alleged to be a complaint of both maternity and pregnancy discrimination and unfair dismissal. In my view this can only be a complaint of unfair dismissal as it falls outside the protected period.13.3 That the Claimant was not kept informed of structural and role changes during her maternity leave and was not considered for the new role in the structure which may have avoided redundancy. The role in question is the Divisional Head of Procurement, which was awarded to Mr Talbot. This complaint is of maternity and pregnancy discrimination only.13.4 That the Respondent failed to conduct a meaningful or clear consultation process on redundancy with conflicting and confusing information being provided. The decision to dismissal was also pre-determined. This relates to the complaint of unfair dismissal only.
THE LAW
[14]Section 18 of the Equality Act 2010, so far as is material, states: (2) A person(a) (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably — (a) because of the pregnancy, or(b) because of illness suffered by her as a result of it. (5) For the purposes of subsection (2), if the treatment of a woman is in implementation of a decision taken in the protected period, the treatment is to be regarded as occurring in that period (even if the implementation is not until after the end of that period). (6) The protected period, in relation to a woman's pregnancy, begins when the pregnancy begins, and ends— (a) if she has the right to ordinary and additional maternity leave, at the end of the additional maternity leave period or (if earlier) when she returns to work after the pregnancy; (b) if she does not have that right, at the end of the period of 2 weeks beginning with the end of the pregnancy.[15]Rule 37 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“The 2013 Rules”) states: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;[16]Rule 39(1) of the 2013 Rules deals with deposit orders and states: “Where at a preliminary hearing (under Rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.” (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.[17]I have been referred to the following authorities in closing submissions by Mr Anderson of Counsel on behalf of the Respondent: Anyanwu v Southbank Students Union [2001] ICR 391 Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 Ahir v British Airways plc [2017] EWCA Civ 1392 Pregnancy and maternity discrimination[18]I am conscious of the case law (in particular Anyanwu and Ezsias) both of which make it clear that great care needs to be exercised in striking out discrimination claims and should not be done except in the clearest of cases. Where a case is fact-sensitive, the appropriate course is to have those issues determined dealt with at a full hearing rather than at a preliminary hearing such as this.[19]On the other hand there is the following passage from Ahir where the Court of Appeal said: “… Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involved a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. …”[20]The complaint of maternity and pregnancy discrimination is realistically limited to one issue – whether the Claimant could and should have been given the opportunity to apply for the Divisional Head of Procurement role. The rest are in reality issues relating to unfair dismissal. It is common ground that the Claimant was not informed of the vacancy and therefore not able to apply. The reason was that she was not eligible. The Respondent had a policy of only considering internal candidates who were at risk. Since the Claimant was not deemed to be at risk in relation to the 2018 restructure, she was not informed of the vacancy. The determination of this issue therefore depends on whether the Claimant was “at risk”. I do not consider that this is a fact-sensitive issue which requires determination only after a full hearing[21]I am satisfied that the Claimant was not at risk for the following reasons:21.1 The email from Mr Burke has been misunderstood by the Claimant. Mr Burke makes it clear that so far as the Claimant is concerned, he requires further advice as the Claimant was then on maternity leave rather than considering her within the possible ‘pool’. That advice was provided to him by Ms Newman on 27 July 2018 as is clear from an email of that date. The advice was that the Claimant should be excluded from the process.21.2 Following the above Mr Burke telephoned the Claimant to explain she was not at risk and confirmed this in an email to Ms Newman of 9 August in which he wrote: “All OK with Lydia [the Claimant] now”21.3 Mr Burke’s own witness statement, which the Claimant has obtained (Mr Burke having now left the Respondent) states: “In June 2018, as part of a departmental restructure two executives and a procurement manager role was put at risk, all three roles were later made redundant. As a result of this restructure a new role was created, divisional head of procurement. After interviews were held with both Aileen Wilkins and Cy Talbot, the role was awarded to Cy Talbot. The role of head of divisional estates manager, held by Lydia Purvey was reviewed as part of the department restructure however as Lydia was on maternity leave, it was decided that it was not an appropriate time to put the position at risk.” (emphasis added)[22]The Claimant’s own ‘evidence’ is therefore unhelpful to her cause as Mr Burke makes it clear that the Claimant was not at risk at the time of the 2018 restructure.[23]I am satisfied that the Claimant was not put at risk because this was likely to be detrimental to her as she was on maternity leave and Mr Burke therefore sought advice as to what he should do. Having obtained advice he decided that the Claimant should not be put at risk.[24]I am also satisfied that in these circumstances the Claimant was not treated unfavourably. The Claimant’s complaints of pregnancy and maternity discrimination must by definition be limited to the non-appointment of the role because the Claimant’s protected period ended in March 2019 and any issue in relation to dismissal must be outside that period.[25]Insofar as it is suggested that the Respondent delayed making the Claimant redundant until after her protected period had ended, there is no evidence in support of this. It is unlikely that the Respondent would have delayed redundancy by several months at a time when they were looking to cut costs.[26]I am therefore satisfied that the complaint of maternity and pregnancy discrimination is unlikely to succeed. The next question is whether it has no reasonable prospect or little reasonable prospect of success. I am satisfied that in this case a deposit order is more appropriate rather than striking out. It may be that the Claimant upon advice or in framing the case differently is able to bring a valid complaint (though she would need leave to amend) and I would not wish to deprive her the opportunity of arguing an alternative case upon advice. However, I am satisfied that the threshold as to a deposit order at least is met and that it is in the interests of justice to make a deposit order[27]In relation to the amount of the deposit, I explained to the Claimant that if she did not have the means to pay the maximum sum of £1000 a means enquiry would have to take place. After the lunch adjournment when the issue fell to be considered the Claimant confirmed that she was able to pay a deposit of £1,000 and a means enquiry was therefore not undertaken.[28]I am satisfied that there is only one allegation or argument of pregnancy and maternity discrimination and therefore only one order is appropriate. I am also satisfied that the maximum sum of £1,000 is appropriate. Unfair dismissal[29]The Claimant argues that the decision to make her redundant was a sham in the sense that there was no genuine redundancy situation because the financial position of the company did not warrant it. She has put forward no evidence in support of this contention.[30]Whilst on the face of it the unfair dismissal claim appears weak, I do have some concern as to the consultation process. For example, in the ET3 it is suggested that there were two consultation meetings, on 17 June and 28 June 2019. It is however, clear from the documentation that the consultation process appears to have begun on 17 June but there was no actual consultation on that date, only that the Claimant was shown a slideshow. Showing a slideshow as to what the new structure might be cannot of itself amount to consultation. It is merely delivering the message of a new structure. The letter sent to the Claimant after the slideshow suggests that the consultation process has not yet started but is about to. There is therefore on the face of it only one consultation meeting on 28 June 2019 and the question of whether there was meaningful consultation will be a matter for evidence.[31]Furthermore, the case of Williams v Compair Maxam Ltd [1982] ICR 83 makes it clear that the employer should seek to give as much warning of impending redundancies as possible so that the employee can take early steps to inform themselves of the relevant facts, consider possible alternative solutions and if necessary find alternative employment in the undertaking or elsewhere. The Tribunal will need to consider whether the guidance in Compair Maxam and any other procedural steps was followed. That cannot be determined today. The Tribunal hearing the merits of the case may also need to consider the allegations set out at paragraph 13.1 above.[32]For the reasons given, the complaint of unfair dismissal shall not be struck out or be the subject of a deposit order.[33]Case management orders as to the final hearing are given separately.
Findings of Fact
[34]Second, the Claimant only received the “consultation notes” of the meeting on the 28 June5 on the 4 July. Previously she had only seen the proforma script which again indicates lack of consideration for her feelings by the Respondent. The now document answered questions she had raised including on the issue of Emma and also as to why her role was redundant. She therefore made the valid point, as did her trade union representative, at the grievance meeting on 5th July that again it meant she had been given little time to consider what was being said. This then goes to that she had been told, as I have already said, that “Consultation had been extended to 5 July”. This was also stated in the final notes viz the meeting on the 28 June (Bp237). . The significance then shows itself in the grievance minutes. The Claimant is therein referred to as LP. Mr Williamson is MW. Towards the end of what was a lengthy meeting the trade union official for the Claimant, Ron Stanley, clearly stated (Bp 278) on this point: “…I think the meeting that is going to go on this afternoon has to be put on (inaudible 01:01:286) until the outcome of the grievance because the grievance has a direct impact on that process.” HM replied: “That is something that would have to be reviewed.” RS said: “Well we will raise it.” LP then added: “Will you do that now or.” And the answer then from HM is: “That is not something to be reviewed as part of this grievance process, they are two separate processes.” LP: “Well we can do that after that. We will do that when we have stopped, yeah but yeah.”[35]The point to be made is why was not this something that MW could deal with? Is it that he had no remit which was suggested by HM to me? Well if he did not have a remit, then what is the point of him holding the grievance hearing? In hearing it at this stage given the issues which had been raised, it clearly was central to the fairness of the redundancy process.[36]That brings me to the interface to the “consideration of dismissal” meeting that took place the same day at 3:00 pm. HM in her witness statement referred to it as follows: 5 Bp237-244.. 6 This is as per transcript. Obviously it can be inferred that he said something like “on hold”. Page 7 of 12 “I recall that Lydia requested during the earlier grievance hearing that the consideration of dismissal meeting be brought forward to take place immediately after the grievance meeting. I found this odd because in the grievance hearing Lydia had been pushing for the consideration of dismissal meeting to be postponed but then subsequently requested it went ahead earlier than originally scheduled. However this was Lydia’s request and we wanted to support her. We agreed to bring forward this meeting.”[37]Now I can find no e-mails in the bundle on that topic at all. What I do know is that there was discussion about whether the Claimant could do 2 July hence why it was moved to 5 July. That goes for both the grievance hearing and the disciplinary outcome meeting to in effect follow on. And if there was some sort of request to put the meeting back then we know it still took place at more or less the time it was intended to. On this issue HM told me that after the recording stopped at the end of the grievance hearing the Claimant and her trade union representative were discussing what to do in the light of the fact that they had not got a decision from Matt Williamson as he was reserving it7. Second that they had not been granted a stay of the dismissal process until the outcome of the grievance. HM says that the Claimant and her trade union rep decided they would go ahead with the “ consideration of dismissal meeting”. The only issue then would be as to whether or not it could be brought forward so that they did not have to wait around. Why is that not in HM’s statement? More important why wasn’t it added to the notes of the meeting?[38]On the other hand the Claimant tells me she cannot really remember whether there was such a discussion with the trade union representative. But she adds that why would she have such a discussion if they had only immediately prior thereto been arguing that the meeting go on hold until the outcome of the grievance; and given her stance all the way through post the first meeting on 17 June that she was not prepared to take part fully until her grievance was concluded. I have to form a view on this issue. I did not find Harriett Milner’s evidence convincing on said topic essentially because I find it unusual for such a methodical HR team that such a crucial note would not have been recorded a la pronto bearing in mind the Respondent was already anticipating that this Claimant could potentially be about bringing litigation. Thus I conclude that I am not persuaded the conversation took place. Rather I conclude that the Claimant and her TU rep were resigned to the inevitable. That there was not going to be further consultation. Simply a confirmation of dismissal and which is what then took place (Bp 257). And in that respect, and because it gives a feel to the context, there is the remark made by Steve Widdoss , then the US based head of global HR, to James Emberton and Ailsa Newman on 23 June 2019 in the exchange of e-mails (Bp 227). Being alerted as he has been to the fact that the Claimant is going down the grievance route and may have already eluded to a Tribunal we get: JE: “…She just (last week) returned from mat leave and was immediately placed at risk of redundancy and the process has commenced. She should not be in next year’s budget.” SW: “Great. When do we expect her to exit.”8 7 He published his decision by which he did not uphold the grievance on 16 August 2019. 8 My emphasis. Page 8 of 12[39]So there is the most senior HR person in this large company, with a significant United States interface, unfortunately speaking in a way which completely shows a closed mind. And that agenda is consistent with the “exit” comment of Ms Brennan and Bp188. Thus I find as per the Claimant that this consultation process was a sham. The decision to the dismiss the Claimant had been made prior to the Claimant ever having been seen. The law engaged and its application[40]First s139(1)(b) of the Employment Rights Act 1996: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to:- (b) the fact that the requirements of that business:-(i) for employees to carry out work of a particular kind, or(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”[41]In that respect the residual work of the Claimant in terms of the estate management part of the combined role had more or less vanished. Even the Claimant does not dispute that.[42]Therefore I come on to the question of fairness and that of course is enshrined at section 98(4):- (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[43]I am aware that I do not substitute my own view on fairness or otherwise, but in the context of s98(4) determine the matter on whether the dismissal was fair within the range of reasonable responses but of course applying s98 (4)[44]Now Mr Anderson has referred to the well known authority in terms of redundancy consultation namely Williams and Others v Compare Maxim Limited [1982] ICR 156 EAT. However much of the guidance in that authority does not really apply to cases such as the Claimant’s; that is to say this was not Page 9 of 12 a redundancy exercise which required the identification of a pool of those potentially at risk and thus the creation of a selection matrix and its fair application. There was no pool. The Claimant was in a pool of one.[45]Limb two of the guidance in that case is as to whether the Claimant was warned and consulted? I shall come back to that in due course.[46]The third limb I can deal with now; whether any alternative work was available? Well the parties are in agreement on that one. There is an intranet and the Claimant looked on it. There were no jobs that would be suitable for her. Ms Brennan also explored the issue coming to the same conclusion having made additional enquiries. It is not surprising that this was the case given the substantial downsizing of the Respondent’s operation.[47]That therefore brings me back to limb two and the core point of being warned and consultation. Of course it is a question of fact depending on the circumstances of the particular case and the crucial point then becomes that if it was inadequate, would it have made any difference. That of course brings in the seminal authority on this topic which is that of their Lordships in Polkey v A E Dayton Services Limited [1988] ICR 142 HL as per Lord Bridge: “The employer will not act reasonably unless he warns and consults any employees affected or their representative, adopts a fair basis on which to select redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within his own organisation.”[48]Now of course as per Lord Bridge there may be exceptional circumstances where the Tribunal could conclude that at the time of the dismissal consultation would have been utterly futile. But I need to factor in in terms of that and the range of reasonable approaches test, the dicta in Speller v Golden Rose Communications Plc EAT 1360/96 and which is part of the commentary on the subject of individual consultation to be found in the current IDS Employment Law Handbook on Redundancy. I think it is significant. The EAT mentioned the various practical purposes which consultation could have but also said that it was “courteous and humane to consult people when you are thinking of making them redundant”. Well we have here a Claimant of long and diligent service. One who has unfortunately got left out of the loop back in January/February 2018 albeit in part consulted but not knowing the full picture. Sweep forward and prior to 17 June she has no idea that she was now herself at risk, indeed the inevitability of dismissal: after all she has been away from the workplace for a long time. She was hurt and upset by the way in which the meeting took place on 17 June and I take note that Alisa Newman accepted in the unfortunate circumstances that was not unreasonable. Thereafter she had wanted to have her grievance heard first.[49]The Respondent has in effect committed to that by allowing it to take place implicitly if not explicitly as part of the consultation process, and yet it had steamed ahead immediately after said grievance hearing and dismissed the Claimant. What it should have done in those circumstances in terms of the range of reasonable responses test, given the circumstances and that this is a most substantial enterprise, is to simply put the exercise off until the grievance outcome decision was made on 16 August 2019. Back to Polkey: the dismissal was unfair[50]Thus I do find that this failure renders the dismissal unfair. Page 10 of 12 But applying Polkey does it me any difference: would the outcome have been the same?[51]This is not a range of reasonable responses test. It is an objective assessment by me. Given that there were no jobs available, I conclude that in fact it makes no difference. All it does is to put the clock back in terms of this dismissal from 5 July to the receipt of the grievance outcome, which let us assume would be latest 20 August 2019. Stopping there, the Claimant raised an appeal against her dismissal on the 13 July 2019 and which was heard by David Proffitt, head of Quality Compliance for Ashfield UK and Ireland on 28 August (Bp 301-327). He dismissed the appeal on 27 September 2019 (Bp 331-335). But this process would not contractually have halted the dismissal process. Thus it is irrelevant to the application of Polkey.[52]But in terms of loss to say 20 August 2019, the Claimant was throughout that period being paid her holiday pay because she had started to take accrued annual leave on 6 June 2019. Furthermore, she was being paid as per the contractual variation in terms of job share with Emma Loader because of course the new contract had come into play post the end of the statutory paternity leave. Therefore the calculations by the Respondent in the bundle are correct. Also correct are the Respondent’s calculations for a statutory redundancy pay which is the equivalent of an unfair dismissal basic award and which therefore cannot be awarded twice. She has been paid the correct amount of notice pay when dismissed. And she was as I have said being paid her holiday pay all the way up to 2 September 2019 by which time of course we are past the date which I have now stated would have been fair for the purposes of the actual dismissal. Thus there is no financial loss: Mr Anderson persuades me.47. So it means I make no award.48. Post giving my judgement and reasons extempore, the Claimant wrote to the Tribunal making plain that on reflection she wanted written reasons. Hence this Judgement and reasons.