G Okuonghae v Angel Support Living (UK) Ltd: 3201303/2024
EMPLOYMENT TRIBUNALS
Case No 3201303/2024
Between
G OkuonghaeClaimantAngel Support Living (UK) LtdRespondent
Before
Employment Judge SearleyUnrepresented for claimantDate 10 January 2025
JUDGMENT
The claim was not presented within the applicable time limit. It was reasonably practicable to do so. The claim is therefore dismissed. Dated: 10 January 2025 Approved by
REASONS
[1]Mrs Okuonghae (the Claimant) was employed by Angel Support Living (UK) Limited (the Respondent) as a support worker.[2]On 14 June 2023, an ET1 was received in which the Claimant made a complaint that the Respondent had unlawfully deducted wages, failed to pay holiday pay and failed to pay notice pay. The Respondent denied the complaint in substance but also asserted that the complaint has been made out of time and that the Tribunal therefore had no jurisdiction to hear the matter.[3]There was a dispute about whether or not the Claimant resigned from her employment and if so, the date on which she did so.[4]Early conciliation via ACAS began on 11 April 2024, and a certificate was issued by ACAS on 23 May 2024. Case Number: 3201303/2024 2
Issues
[5]The preliminary issue is whether or not the Claimant has bought her claim in relation to unlawful deduction from wages within the time limit set out in the Employment Rights Act 1996.[6]That time limit is set out in section 23(2) of the ERA 1996 as follows: “Subject to subsection (4), an [employment tribunal]2 shall not consider a complaint under this section unless it is presented before the end of the period of three months beginning with…the date of payment of the wages from which the deduction was made”[7]The exception to this requirement is set out in section 23(4) as follows: “Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.”[8]I therefore consider whether or not the complaint was bought within the time limit, and if not, whether I am satisfied that it was not reasonably practicable for the complaint to have been presented within that period.[9]Whilst the time limit for making the complaint runs from the date of payment of the wages from which the deduction was made, whether or not the Claimant had resigned and whether that was accepted by the Respondent is of significant factual relevance to the issue of whether the complaint has been brought in time.[10]This is relevant because it goes to the issue of when any unlawful deduction might have happened. If the claimant had resigned and her resignation had been accepted then the December payslip would have been her final payslip, and to the extent that any unauthorised deduction may have been made from her wages in that payslip, the time for bringing the claim would run from the date she was paid her December wages. If, however, the Claimant did not resign, and was in fact dismissed without notice on 12 January 2024, when she states she became aware that her employer had in fact ended her employment, then the time for bringing the claim would run from 12 January 2024 given she did not receive any further wages but only her P45.
The hearing
[11]To determine the preliminary issue of whether the complaint was made in time I heard evidence of fact from both the Claimant and from Ms Kamaljit Birk, the Claimant’s manager, who gave evidence on behalf of the Respondent. To determine the preliminary issue, I only heard evidence in relation to whether or not the claimant resigned, whether that was accepted by the Respondent, whether the Claimant was aware of that, and whether it was not reasonably practicable for the complaint to be made in time. I read Case Number: 3201303/2024 3 and considered the evidence before me in the bundle prepared for the hearing, including the additions made to that bundle by the Claimant at the start of the hearing. I also had the benefit of submissions on behalf of both parties.
Findings of fact
[12]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I will explain how I have done so. References to page numbers are to the agreed Bundle of documents[13]The Claimant was employed by Angel Support Living (UK) Limited (the Respondent) as a support worker. There is no dispute that she began her employment in September 2022. The signed contract of employment at page 40 of the bundle notes that the Claimant’s employment began on 5 September 2022. The Claimant had not performed any work for the Respondent since the 8 December 2023.[14]The employment contract, at page 45, sets out a provision in relation to notice periods. The requirement set out in the contract reads as follows: Notice period to be given by the employee to the employer Less than one month’s service – nil. One month’s service or more – one month’s written notice to the employer. Notice to be given by the employer to the employee The Company has the right to serve notice of termination of your employment at any time in accordance with the notice provisions below. Less than one month’s service – nil. One month’s service but less than five years – one month. Five years’ service or more – one week for each complete year of service up to a maximum of 12 weeks.[15]I note that at page 43 of the bundle, the Claimant’s contract described her normal hours of work as being worked flexibly in accordance with a weekly roster, but including weekends and nights.[16]The Respondent also signed, as set out at page 99 of the Bundle, an opt out of the working time regulations. This document includes a clause, signed by the Claimant, that she would give one month’s written notice of her intention to terminate her agreement to that opt-out. I do not find that document persuasive evidence of the matter I need to decide as a preliminary issue. It is a self-standing document relating to the working time regulations, and I consider the clause which requires one month’s written notice to be solely relating to the giving of notice about opting out of the working time regulations specifically, rather than relating to the claimant’s Case Number: 3201303/2024 4 employment generally. The document does not provide any evidence about the manner in which the Claimant was expected to resign from her contract of employment.[17]On 8 November 2023, the Claimant sent a message to Ms Birk asking if she could be given day shifts only on particular days to accommodate her need to study. The message also noted that the Claimant could no longer do night shifts, as her husband was not available to care for their children overnight (see pages 49 of the bundle onwards).[18]Ms Birk responded to say that the Claimant’s contract of employment required her to work one Sunday each month (and the Claimant confirmed she was happy to do so) but that Ms Birk would check with HR about the other matters. Ms Birk asked the Claimant when she would be in a position to do night shifts as the Claimant was contracted to perform a night shift once a week. The Claimant did not respond to that message.[19]Ms Birk’s evidence is that, on 10 November 2023, she held a meeting with the Claimant. During that meeting, she confirmed that the Claimant was able to only work particular days as the Claimant had requested. Thereafter Ms Birk says that she reminded the Claimant of the obligation to perform night shifts and that it would be a breach of contract not to do so. Ms Birk says that the Claimant told her she had family obligations and would not be able to work any night shifts. Ms Birk says that she reminded the Claimant that this was a contractual obligation and asked the Claimant whether she therefore intended to hand in her resignation. Ms Birk states that the Claimant replied yes, and Ms Birk told the Claimant that she would therefore inform HR.[20]The Claimant’s evidence is that she was told to resign by Ms Birk because she said that she was unable to perform a night shift. The Claimant says that Ms Birk refused to accept the Claimant’s request to work flexibly, and that other employees had been allowed not to do night shifts. The Claimant said she had a family issue which she explained in full to Ms Birk and that the Claimant told Ms Birk that her inability to do the night shift would only be for the month of November. The Claimant states that Ms Birk told her that Ms Birk was going to email Ms Mitchell (who worked in the Respondent’s HR department) and instruct Ms Mitchell to email the Claimant a resignation letter. The Claimant states that when Ms Birk told her she would need to resign if she could not do night shifts, the Claimant did not reply. The Claimant is adamant she did not offer to resign. The Claimant’s evidence is that, if she had wanted to resign, she would have made that clear in a meeting she had with the Director of the service a few weeks before her conversation with Ms Birk. She would also have written to HR herself, as her understanding of her contract was that she was required to give written notice.[21]In evidence before me, both the Claimant and the Respondent gave evidence that these discussions may have happened in more than one conversation over the course of that day. The Claimant stated that there were several conversations – one in which she was told by Ms Birk she was Case Number: 3201303/2024 5 breaking the rules of the company if she did not perform night shifts, and then a later conversation in which Ms Birk asked whether the Claimant had changed her mind about performing night shifts or whether she wanted to resign. Ms Birk stated that during the day she had spoken to HR in advance, to get some advice, and that she had held a discussion with the Claimant thereafter. She couldn’t now remember if there were a series of conversations with the Claimant that day, but she was clear that she had spoken to the Claimant after having discussed the matter with HR.[22]There is no other evidence available as to what happened in the discussion between the Claimant and Ms Birk. Ms Mitchell was not called as a witness. There is no CCTV.[23]That same day, on 10 November, Ms Birk emailed Ms Mitchell in the HR Department. Her email is at page 57. She summarised her understanding of her conversation with the Claimant, noting that Ms Birk had explained that if the Claimant was unable to perform night shifts then the Claimant was in breach of the contract. She noted that the Claimant had stated she was unable to perform the night shifts “due to her family obligations and she will be serving her four weeks’ notice from today”. The email goes on to note that Ms Birk had agreed to the Claimant’s other requests about working on particular days.[24]The Claimant does not accept Ms Birk’s description of the conversation she had with Ms Birk as recorded in that email. But she does accept that email was sent to HR and agreed in evidence that the second paragraph which described the days the Claimant was available to work was accurate. The Claimant was not copied to that email.[25]On 13 November Ms Mitchell emailed the Claimant as set out at page 59 of the bundle. In her email she told the Claimant that the email’s purpose was “to confirm your resignation due to not being able to meet your contract requirements” and that the Claimant would work a month’s notice with her last working day being 8 December 2023.[26]The Claimant did not reply to that email. The Claimant said that she did not reply directly to the email because she did not take it seriously. Her understanding from her discussion with Ms Birk was that HR would be in touch with her to send a resignation letter for her. The Claimant says she did not see the email immediately because she was very tired on returning home from work. She saw it eventually at the end of November. She says that at that point she called Ms Mitchell and said that she wasn’t resigning and asked that the CCTV be checked. The Claimant says Ms Mitchell told her she was no longer in the office but would check the CCTV the next day. Ms Mitchell did not get back to the Claimant, and the Claimant subsequently learned she (Ms Mitchell) was off sick. I note that there was a series of text messages between the Claimant and Ms Mitchell between 16 November and 20 November during which the Claimant did not raise with her the fact of the email of 13 November. There is no written evidence (text message or email) of the Claimant seeking to raise matters with Ms Mitchell. Case Number: 3201303/2024 6[27]The Claimant was off sick from work from 19 November 2023. There were a series of exchanges between her and Ms Birk about ensuring a sick note was provided. The last of those was on 3 December 2023.[28]On 11 December 2023, a rota was circulated by Ms Birk for the week commencing 18 December in a WhatsApp group which the Claimant remained a member of. The Claimant was not included on the rota. That same day she was removed from the WhatsApp Group. There is no evidence of the Claimant raising this with Ms Birk or with the Respondent.[29]Ms Birk’s undisputed evidence was that on 13 December draft payslips were circulated for pay up to 21 December 2023. These were sent in final form on 15 December, with the two-day window being an opportunity for staff to query their payslip. The Claimant’s payslip included an entry titled Accrued Holiday (10 days) for which a payment of £880 was made. The Claimant states she did not see that line in the payslip or appreciate what it meant. The Claimant accepts that she was sent a P45 with her December payslip. That P45 recorded her leaving date as 8 December 2024. That version of the P45 was not included in the bundle, but in her evidence before me the Claimant accepted that she saw it in December.[30]On 19 December, the Claimant sent a message to Ms Birk to say that she was still too sick to work and that she would obtain a sick note. Ms Birk replied saying that her understanding was that the Claimant’s last working day was 8 December 2023. That message was read by the Claimant but not replied to.[31]Pay for December was received earlier than usual on 21 December 2023. The claimant was paid in accordance with her December payslip on that date.[32]On 12 January 2024 an unnamed individual at HR emailed the Claimant in response to an email she had sent which included a fitness for work certificate. The email noted that the Claimant no longer worked for the Respondent having given her resignation on 10 November 2023. The email from Ms Mitchell of 13 November was attached. The email stated that the Claimant was “made a leaver on 12 December 2023” and that a P45 was issued to her and reattached to that email. The email noted that the Claimant “no longer worked for the company”. That P45 was in the bundle. It noted the leaving date of 8 December 2023 but was dated 12 January 2024.[33]On 18 January the Claimant wrote to the HR department expressing her surprise and stating that she had called Ms Mitchell several times to “tell her that the Claimant would not be writing a resignation letter”.[34]There was various correspondence between the Claimant and the Respondent thereafter. In that Correspondence the Claimant reiterated her position that she had not resigned and had called Ms Mitchell to say so. She also noted, at the letter on page 100 of the bundle, that she had met with the Director of the Service in October to complain that she was not being offered her contracted hours. In the letter at page 103 of the bundle the Case Number: 3201303/2024 7 Complaint noted that she was hesitant to complain about the issue of whether she had resigned or not, as she had complained already quite recently in September 2023 (about a colleague and a manager).
Relevant law
[35]In submissions, my attention was drawn to the case of Sothern v Frank Charlesly & Co [1981] IRLR 278, as authority for the proposition that a resignation can be tendered orally and accepted not withstanding that the contract might have required written notice. Lord Justice Fox noted that notwithstanding that a contract might require written notice, if an employee chooses to resign orally and the employer is prepared to accept that, there is no reason why such resignation should not have the normal legal consequences.
Conclusions
[36]I conclude that it is more likely than not that the Claimant did resign during the conversation with Ms Birk. This is because there is evidence, in the text messages to which I have referred, that the Claimant told Ms Birk she would not be able to perform night shifts. In response the Claimant was told by Ms Birk, that she was required to perform night shifts as part of her contractual obligations. I accept Ms Birk’s evidence that she discussed those matters with HR before speaking to the Claimant, because the text messages show that she had that intention from 8 November. I also accept Ms Birk’s evidence that she informed the Claimant in the meeting on 9 November that failure to perform the night shift would put her in breach of the contract, having taken advice from HR. Such action is consistent with the prior text message exchange between them.[37]I am satisfied that it is more likely than not that Ms Birk would have asked the Claimant whether she wished to offer her resignation because she could not undertake night shifts, and conclude that it is more likely than not that the Claimant did say she wished to resign. Ms Birk’s email to HR, at page 57, is consistent with the evidence Ms Birk gave, in that it sets out that the reason for the Claimant’s resignation was her inability to perform night shifts. It is also contemporaneous with the conversation.[38]Even if I am wrong that the Claimant offered her verbal resignation to Ms Birk, it is clear that the Respondent understood that the Claimant had done so. The Respondent confirmed to the Claimant in an email of 13 November that it was the Respondent’s understanding that the Claimant had resigned. I do not consider the Claimant’s evidence that she did not treat the email from HR on 13 November as serious to be plausible. The email clearly sets out in unambiguous language that the HR department was under the impression that the Claimant had resigned and giving her a date that her notice would be completed by. Accordingly, given the Claimant believed she had not in fact resigned, her failure to reply to this email is inexplicable. The Claimant says that she subsequently rang and spoke to HR, however there is no evidence of such a call having taken place. Further, it is clear that the Claimant had previously contacted the Director of the service, and it was Case Number: 3201303/2024 8 open to her to have done so again given the seriousness of this issue if she had been unable to get hold of HR.[39]I also note that the Claimant took no action in response to not being included on the December rota circulated on 11 December for the week of or being withdrawn from the group in which rotas were circulated.[40]All of the Claimant’s actions until 19 December are consistent with the actions of someone who had resigned. On 19 December, when the Claimant was informed again by Ms Birk that she had left the employment of the Respondent, the Claimant took no action. Nor did she take any action when she received her P45 with her December payslip, which noted her leaving date as being 8 December 2024. The first documentary evidence of the Complaint objecting to the suggestion that she had resigned is her letter of 18 January 2024.[41]I have considered the Claimant’s argument that her resignation could not have been valid because it was given orally, in circumstances where the contract required it to be in writing. Applying the case of Sothern v Frank Charlesly & Co I conclude that an oral resignation which is accepted by the Respondent as being valid (as it clearly was here given the email that was sent to the Claimant on 13 November) is a valid resignation. I do not accept the Claimant’s submission that her resignation had to be in writing to be effective.[42]I have considered the Claimant’s suggestion that the fact she had asked for more hours and the fact that she had not suggested she wished to resign at a meeting with the Director is evidence that she did not intend to resign. I do not conclude that evidence helps me to decide what happened between Ms Birk and the Claimant in the meeting where her resignation was discussed, and I find the way the Claimant responded to matters after 13 November is more persuasive evidence of her intention at that point in time.[43]In any event, it is clear from the employment contract that the Respondent was entitled to terminate the Claimant’s employment if it gave one month’s notice of its intention to do so. The email of 13 November makes plain that the Respondent was intending the employment relationship to come to an end and set out clearly its expectation of when the employment relationship would end. Given the Claimant had less than two years’ service, the Respondent was entitled to terminate her employment, and I consider that that the email of 13 November was a sufficiently clear indication of that intention.[44]Accordingly, it follows that I consider that the Respondent knew that her December payslip was her final payslip, and therefore the time period for the Claimant to bring any unlawful deduction claim ran from 21 December 2023. Therefore, she ought to have contacted ACAS by 20 March 2024. She did not do so until 11 April 2024 and her is out of time.[45]I have considered whether it was reasonably practicable for the claim to have been bought in time. The Claimant has given me no evidence as to Case Number: 3201303/2024 9 why it was not reasonably practicable not to do so. I note her evidence that she did not treat the correspondence from HR seriously, however for the[46]Consequently, I find that the claim was not presented within the applicable time limit. It was reasonably practicable to do so. The claim is therefore dismissed. Approved by: