Employment Judge FinlayIn person for claimantMr O Isaacs (instructed by Counsel) for respondentDate 20 December 2021
REASONS
[1]This claim had come before me on 23 March 2020. I did not have access to the full case file today, but from memory, 23 March 2020 was to be the first day of the Final Hearing. However, it had been converted into a Telephone Case Management Hearing due to the onset of the Coronavirus restrictions.[2]On 20 March 2020, the Respondent had applied to strike out the complaints of discrimination and for a deposit order in respect of the complaint of unfair dismissal. On 23 March 2020, I listed those applications for hearing at the Preliminary Hearing today and I also relisted the Final Hearing for four days in March 2021.[3]The Hearing today was listed to be heard by Cloud Video Platform (CVP). However, the Claimant (who appeared in person) was not able to access the CVP and attended by telephone. She was content for the Hearing to proceed on this basis.[4]Mr Isaacs for the Respondent offered to disable his camera so that he was in the same position as the Claimant. This was done, such that I could hear, but not see, the parties. This situation would have been reviewed had a member of the public requested access to the Hearing, but this did not happen. History of claim[5]The history is that the Claimant presented her claim in April 2017. It was accompanied by, or followed shortly afterwards by, two documents: one entitled “In-depth reasons of my claim” and the other entitled “Claimant’s Chronology”. I was not provided with the full version of the former, but the Claimant had included extracts which she referred to me. The latter document was included in the Bundle before me at pages 16 to 39.[6]The first Preliminary Hearing took place on 3 May 2017. Having heard from the Claimant and Counsel on behalf of the Respondent, the Employment Judge considered that the claim as it then stood contained a complaint about unfair dismissal and a complaint about that dismissal being either an act of race discrimination or sex discrimination. In addition, the Employment Judge noted that the Claimant had made a reference to harassment and victimisation on her claim form. The Claimant was ordered to provide further particulars setting out the basis on which she contended that her dismissal was an act of race discrimination and / or sex discrimination and setting out the basis upon which she contended that her dismissal was victimisation and / or harassment. Specifically, the Claimant was ordered to explain the nature of the protected acts on which she relied if alleging victimisation. Similarly, she was ordered to explain the basis on which she said that she was harassed, specifying the protected characteristic to which the alleged harassment related. The Employment Judge determined that the Claimant did not need to make an application to amend her claim in order to bring complaints of harassment and victimisation.[7]The Claimant then did provide further and better particulars running to some 60 pages. This document was in two parts, the first relating to the dismissal which was included in full within the Bundle before me. The second part related to other claims which the Claimant wished to bring including claims of age and disability discrimination and also complaints of discrimination relating to incidents prior to her dismissal.[8]There was then a further Preliminary Hearing on 4 January 2019. This Preliminary Hearing was listed to consider the Claimant’s application to amend her claim to include the additional complaints referred to in the previous paragraphs, an application by the Respondent to strike out the claim or to make a Deposit Order and an application by the Claimant to strike out the response. The application to amend the claim failed such that the complaints before the Tribunal are as set out in paragraphs 10 – 14 of the Case Management Orders of 4 January 2019. Those are the complaints of unfair dismissal (s.98 of the Employment Rights Act 1996), direct sex discrimination, direct race discrimination, harassment and victimisation.[9]The Respondent’s application to strike out the claims of discrimination also failed. The Employment Judge pointed out that he could find nothing in the 60 page further and better particulars which supported those complaints and no apparent protected act to support a claim of victimisation. There was nothing in the Claimant’s claims or in her further and better particulars providing any basis for a finding that the dismissal was an act of race or sex discrimination nor harassment related to sex or race or an act of victimisation because of a protected act. He stated that those complaints were merely asserted without any supporting evidence which would not provide a reasonable prospect of success. For those reasons, he made Deposit Orders in respect of the four discrimination complaints.[10]Finally, and for the sake of completeness, I note that the Claimant’s application to strike out the response also failed.[11]In October 2019, the parties exchanged witness statements. The Claimant has provided a witness statement from herself and six other witness statements from friends and family. Somewhat remarkedly, the Claimant’s witness statement does not mention her dismissal at all. Similarly, the statements of her friends and family do not refer to the act of dismissal and it would appear that none of those other witnesses have any direct first-hand knowledge of the Claimant’s dismissal. Notably, those witness statements from the Claimant’s witnesses do not suggest that at any point, the Claimant told her friends and family that she was the victim of any sex or race discrimination. This is consistent with the other documents before me and it would appear that the Claimant did not allege to the Respondent that she had been the victim of sex or race discrimination until she commenced this litigation. For the most part, the Claimant’s witness statement repeats her narrative about a catalogue of events which occurred during her employment between 2014 and June 2016. These events are described by the Claimant as allegations of harassment, bullying and victimisation, but what is lacking in the witness statement, as in the claim form and other documents, is any connection between those events and the Claimant’s sex or race. The Claimant does not explain why she considers that those events (or indeed her dismissal) relate to or were actioned because of her sex or race.[12]It is this lack of detail which led the Respondent to make its second application to strike out the complaints of discrimination. The Respondent acknowledged that this was an unusual step, but considered it justified in the light of the witness statements produced by the Claimant. In brief, the Respondent contended that based on the pleadings, the other documentation provided by the Claimant and her witness statements, the complaints of discrimination could not possibly succeed.[13]The Respondent provided witness statements from Mr Clive Capp, the Dismissing Manager and Mr Stephen Vincent, who would have heard an Appeal by the Claimant. Mr Capp’s witness statement deals with the process leading up to the Claimant’s dismissal and the thought processes behind his decision to dismiss. He has also provided a supplemental statement in response to additional documentation disclosed by the Claimant.[14]The response can be summarised from the Grounds of Resistance and Mr Capp’s first statement. The Respondent’s case is that the Claimant was dismissed for a reason relating to her conduct, which is a potentially fair reason under s.98 of the Employment Rights Act 1996. In a nutshell, one of the Claimant’s colleagues by the name of Tom raised a grievance against her arising from an incident which was said to have taken place on 31 May 2016. The Respondent’s case is that the Claimant declined to engage in the investigatory process with the result that she received a final written warning for her failure to do so on 13 June 2016. It is common ground that she did not appeal that final written warning. The Claimant was then off sick from 14 June 2016 for work related stress and did not return to work. The Respondent’s case is that the Claimant failed to engage with the Respondent during her absence such that on 21 September 2016 she was invited to a disciplinary hearing due to lack of communication and co-operation during her absence and lack of communication and co-operation with regard to the substance of her colleague’s grievance. The Respondent says that the Claimant failed to attend this disciplinary hearing and failed either to provide evidence to say that she was unfit to do so, or to allow the Respondent to obtain such evidence. The Respondent says that it then conducted the hearing in the Claimant’s absence and found the charges against the Claimant proven. Taking into account the final written warning, the Respondent dismissed the Claimant.[15]The Claimant’s submitted a written response to the applications made by the Respondent in March 2020. This response comprised a nine page document plus 12 appendices being extracts from previous documents submitted by her and extracts from two cases (Anyanwu v South Bank Student Union and Commission for Racial Equality [2001] UK HL14 and Chesterton v Nurmohamed [2017] EWCA Civ 314. All of those documents were included within the papers before me. The salient points are that the Claimant asserted that her dismissal was unfair because there was no fair process followed and because there was not an independent and impartial person assigned to hear and to Chair the disciplinary and appeal meetings. In relation to the complaints of discrimination, the Claimant referred back to the previous incidents already referred to but did also give details of two protected acts relied on in support of her claim of victimisation, being a witness statement provided for an incident which took place with another employee of Asian heritage and the raising of issues of work in what she described as her grievance to HR made on 2 June 2016. Again, there is a dearth of information or evidence relating to any connection between the treatment afforded to the Claimant in her dismissal and before and her sex or race. There is also a lack of information or evidence to suggest any cause or connection between the protected acts and the dismissal. The Claimant’s case[16]The Claimant is a litigant in person. She has had the benefit of legal advice throughout the process on what she describes as a ‘piecemeal’ basis, but it is apparent that a number of the documents including the claim form and her witness statement were written by her.[17]It is extremely difficult to discern the full detail of the Claimant’s case from the pleadings, her other documents or the witness statements. It is, however, not unusual for an unrepresented party to struggle to articulate their case in pleadings, particularly where complex technical matters such as discrimination are involved. The Tribunal does not expect the same level of pleading from an unrepresented party as from a party represented by experienced legal advisors.[18]For these reasons, I spent a considerable amount of time trying to get to the bottom of the precise nature of the Claimant’s complaints. In all, she spoke for well over an hour and answered my questions willingly and openly. From what she told me, added to what I had read, I was able to identify the grounds for complaints and summarise them as follows. The Claimant’s dismissal[19]The Claimant told me that she believes that her dismissal was unfair for a number of reasons. Those reasons are:19.1 Mr Capp was not an appropriate person to conduct a disciplinary hearing against her. This is for two reasons: firstly, he is related to the proprietor of the business and therefore cannot be independent or impartial; secondly, he had called her a liar in February 2016. I add here that the Claimant accepts that she did not complain about Mr Capp’s appointment at the time, although she says that she was unwell and apparently overwhelmed with what was happening to her.19.2 The Claimant’s dismissal was unfair because of all of the things which happened to her up to June 2016.19.3 The final written warning (and hence the dismissal) was based upon a complete fabrication. There was no incident on 31 May 2016 involving her and her colleague Tom. I would add that it would appear that there was an incident between the two but the Claimant believes that it took place on 2 June 2016 and not 31 May 2016.19.4 The Claimant was bombarded with communications from the Respondent.19.5 The Respondent should have waited until the Claimant was fit enough to attend a disciplinary hearing.19.6 The Respondent should have given the Claimant more time to prepare her grounds of appeal.19.7 It was unfair that the Claimant had been dismissed for matters relating to the investigation of Tom’s grievance whereas her own grievance (made to Jessica in HR on 2 June 2016) had not been investigated by the Respondent at all.[20]I asked the Claimant specifically why she believed that Mr Capp had taken the decision to dismiss her. She was very clear in her answer. The reason she gave is that Mr Capp was aware of the incompetence of the Claimant’s colleagues Tom and Chris and was also aware that the Claimant would expose that incompetence to senior management. The Respondent is the result of a merger between two separate companies and Mr Capp, Tom and Chris are from the same side of that merger. Mr Capp was effectively looking after his former colleagues with whom he had good relationships and was seeking to ensure that their incompetence would not be revealed by the Claimant.[21]I asked the Claimant whether she believed Mr Capp would have dismissed someone threatening to expose the incompetence of Tom and Chris had that person been Caucasian and / or male. She said that that person would not have been dismissed. I questioned how Mr Capp could then have achieved his objective of covering up the incompetence of Tom and Chris if a person threatening to expose them had not been dismissed. The Claimant was not able to explain this to me.[22]I asked the Claimant whether there was anything else, apart from the fact that Chris and Tom are male and / or Caucasian, which led the Claimant to believe that the Claimant’s sex or race was a motivating factor in Mr Capp’s decision to dismiss her. What the Claimant said was that ‘maybe’ they had all taken a dislike to her because of her afro Caribbean ethnicity or ‘maybe’ they did not like her culture. In relation to her sex, the Claimant said that Mr Capp was always close to the males. His relationships were with those from the other company (to the merger) who were 90% male.[23]Turning to the complaint of victimisation and protected acts, the Claimant’s case is that there were three protected acts, or perhaps more correctly that there were three series of protected acts. The first is the numerous complaints she says that she made to her colleague Chris throughout her employment, both in writing and oral. These were complaints about the way in which her colleagues were treating her, but the Claimant acknowledged that she did not say in those complaints that she believed that her colleagues’ behaviour was related to her sex or her race.[24]The second series of protected acts commenced with her meeting with Jessica in HR on 2 June followed by an email to Jessica on 8 June and a letter of 10 June. In her response to the Respondent’s application, the Claimant had included an extract from her notes of the meeting with Jessica on 2 June. Those notes do refer to harassment, bullying and victimisation, but not specifically in relation to sex or race. The email and letter make no reference to sex or race.[25]The third protected act relied on is the statement to HR referred to above. This was made on 8 August 2014 and was at page 214 in the Bundle before me. It appears to have been a witness statement made by the Claimant commenting on the behaviour of a colleague who may or may not have been of Asian ethnicity – the Claimant did not know. It is extremely difficult to see how this statement could constitute a protected act for the purposes of a victimisation claim and the Claimant has not given any reason as to why the Respondent should dismiss her for making this statement, two years later. Application to strike out[26]Considering whether to strike out a complaint under Rule 37 is a two stage process. Firstly, I must conclude that the complaint has no reasonable prospect of success and secondly, I must consider whether to exercise the discretion to strike it out – the rule is of a permissive nature.[27]For a party to establish that the other party’s case has no reasonable prospect of success is a very high bar. The Tribunal should only strike out a claim on this basis in exceptional cases, particularly where the complaints are of discrimination. There is a public interest in having allegations of discrimination heard.[28]In considering the application, I have looked at the Claimant’s case at its absolute highest and assumed that any factual dispute would be resolved in favour of the Claimant. I have been conscious throughout that the Claimant is a litigant in person and as such, is not expected to produce pleadings or indeed a witness statement of the same quality of a party represented by experienced legal professionals. I have also taken into account that from 14 June 2016 onwards, the Claimant was not well, suffering from work related stress. She remains unwell to this day.[29]Nevertheless, I have concluded that the complaints of discrimination have no reasonable prospect of success. I have looked beyond the witness statements and indeed the other documents provided by the Claimant and considered carefully what she told me today. Whilst it is correct to say that discrimination is rarely overt and direct and is often subconscious, the Claimant is not able to point to anything beyond a difference in race and sex to support her contention that her protected characteristics were either the reason for her dismissal or related to the alleged harassment. It is not enough for the Claimant to say that ‘maybe’ the Respondent took against her because of her ethnicity or culture. It is not enough for her simply to say that her colleagues such as Chris and Tom are Caucasian and male. There must be something else, however small, beyond the difference in race and / or sex. I have asked myself whether, on the Claimant’s case at its highest and resolving any factual disputes in her favour, there is enough for the Tribunal to reverse the burden of prove, but there simply is not. It is not as if the Claimant had complained of race or sex discrimination at any point before these proceedings. She may have been the victim of unfair treatment at work and her dismissal may well have been unfair, but there is nothing upon which a Tribunal could form a prima facie case of discrimination on the basis of race or sex had occurred.[30]I also consider it appropriate to exercise my discretion to strike out the claims. The claim was presented in April 2017 and the Claimant has had over three years in which to explain why she considers her treatment was due to race or sex. She has not done so, despite hundreds of pages of documents.[31]The Respondent’s application therefore succeeds, and the complaints of discrimination are struck out. Application for a deposit order – complaint of unfair dismissal[32]In considering whether to order a deposit, the first question is whether the complaint has little reasonable prospect of success. On the basis of the claim form, witness statements and other documents, I consider that it does not. However, the Claimant has been able to explain her case in far more detail to me today and there are a number of matters which would need to be considered by the Tribunal in determining whether or not the dismissal was fair under s.98 of the Employment Rights Act 1996, as set out in paragraph 19 above. There is clearly material upon which a Tribunal could conclude that a dismissal was unfair. Taking into account what she told today, I cannot conclude that this complaint has little reasonable prospect of success. I have therefore refused the application for a deposit.
Background
[33]The Claimant replied at 13:17: At this stage I have said what I needed to say to Jess; which had me in tears. I am sorry, but I do not wish to re-live this ordeal. My position is as I discussed with Jess last week.[34]In this email, the Claimant was referring to the conversation she had had with Ms Wheeler on the day of the incident. If Mr Hughes had not been previously aware that such a conversation had taken place, he was now.[35]Ms Wheeler who had been copied in through the exchange then replied at 13:29 as follows (spelling as per the original): This is an investigation ahead of a formal meeting potentially being arranged. I did say last week that we would need to speak further, as the indecent was not resolved. Your cooperation is required. Chris as your line manager, will conduct this investigation, which will be used as consideration in any formal meeting. This is a request from your line manager, I encourage you to conduct yourself in a collaborative manor.[36]The Claimant replied at 13:41, stating: 7 of 21 As expressed last week, not too sure why you are approaching me in an extremely forceful/full on manner? There is no mention & or indication from me to the contrary of what you are referring to below (ie. line manager & co-operation). I am merely reiterating what I mentioned to you last week — ’Duty of Care' , as you are well aware of how upsetting the whole event was/ has been to me. I appreciate that Chris requires my presence so I am/will discuss anything further in a meeting with him.[37]From reading this email, Mr Hughes was aware, if he had not been already, that the Claimant’s version of her conversation the previous week with Ms Wheeler was that she had referenced duties which the Respondent owed to her as well as saying that she had been upset by the incident.[38]At 13:46, Ms Wheeler replied: Thanks for your email. Naturally I am happy to provide further explanation as to why you are required to provide answers in an investigation, when you object to a legitimate request from Chris. It is a shame, you interoperate me to be forceful, when my intention it to be clear and reasonable. I understand the situation is not comfortable, my duty of care as Head of HR is to consider all parties that are involved and bring to resolution in the shortest window possibleIn order to do this, your cooperation is required. As Chris suggested, although this is not a formal meeting, if you would feel more supported bringing along a colleague, please feel welcome. I'll see you at 2pm in [room name].[39]The Claimant replied at 13:56, stating she would like to arrange to have an “independent representative” with her and that she would like to time to arrange that and to liaise with that person before the meeting. At 14:29, Ms Wheeler replied to state that the meeting had been re-arranged for 4pm (the Claimant not having attended at 2pm) and that “If you fail to attend the meeting at 4pm today, the company could perceive this as a disciplinary matter in relation to insubordination and failure to carry out legitimate management instruction.” The offer that the Claimant could be accompanied was not withdrawn, but the email asserted that it was the Respondent’s position that the Claimant had no right to be accompanied. Although not expressly stated, I am satisfied that Ms Wheeler’s meaning was that the Claimant could bring a companion at 4pm, but that she was required to attend unaccompanied if she could not find somebody.[40]At 15:38, the Claimant sent a reply which concluded as follows: 8 of 21 I believe I have already advised on this matter, and am again advising that; upon advice, I cannot enter into any meeting with You both; whether formal or informal. Again, I advise that I would need proper notice, where I would be able to attend with my independent representative, to this meeting with the both of you (whether it be formal or informal - as you have stated below/previously). Apologies, but I have taken advice and would need to decline this meeting, until a more convenient time/date can be diarised for all parties {including my representative).[41]The Claimant did not attend the meeting. She carried on working as normal and sending and receiving work emails for the remainder of the day. A letter was delivered to her (R218-219). The letter was headed “invite to a disciplinary hearing”. The meeting was to be at 4.45pm on 10 June 2016, and the letter asserted that the Claimant had been given 48 hours’ notice. She was told of right to be accompanied. The allegations to be considered did not relate to Mr Halpin, but rather to the Claimant’s non-attendance at the 2pm and 4pm meetings. The evidence included was the email trail on 8 June, as described above.[42]The Claimant wrote a letter to the Respondent on 10 June 2016 (R221-222). Amongst other things, it referred to the Claimant having spoken to Ms Wheeler (on 2 June, on the Claimant’s account, though the date is not specified in the letter) about the incident with Mr Halpin which, on the Claimant’s account, was part of a long chain of previous issues with Mr Halpin which she had been trying to move on from and which, she said, had left her “distraught, anxious, distressed and harassed”. She stated she had been in tears when speaking to Ms Wheeler. She expressed willingness to attend a meeting provided her representative (whom she named) could attend, and said that she could not do it that week. 10 June 2016 was a Friday. The letter was given to Ms Wheeler around 16:28 (R220).[43]The Claimant repeated during the tribunal hearing that she had been very upset and in tears when she met Ms Wheeler. Her evidence is uncontradicted on this point, and I accept it.[44]According to the documents in the bundle, at 4.45pm on 10 June 2016, Ms Wheeler (“note taker”) and Mr Hughes (“hearing chair”) held a meeting in the Claimant’s absence. The notes acknowledge that the attendees had seen the Claimant’s letter and had decided to proceed in her absence. According to the notes, there was a list of questions (which were included in the notes) which, in the Claimant’s absence, were unanswered. The notes conclude: In the absence of RT, CH took the decision that insubordination was found and sanctioned a final written warning[45]A letter dated 13 June was sent to the Claimant (R226-228). The heading said “First and Final Written Warning”. The letter asserted that Mr Hughes had decided that the Claimant had not provided an acceptable reason for not attending on 10 June and so he had decided, in her absence, that the allegations mentioned in the 8 June invite letter were proven. The letter concluded: 9 of 21 My decision is therefore to issue you with a first and final written warning. This warning will remain on your personnel file but will be disregarded after 12 months if no further disciplinary warnings are issued. It must be stressed. in no uncertain terms. continued behaviour of this nature will not be tolerated and you are required to comply with all reasonable management instructions made of you. This includes the requirement to comply with requests to attend a meeting to investigate further Tom Halpin's grievance. Further refusal to do so could result in further disciplinary action which could result in the termination of your employment. in my view. it would be entirely foolish to put yourself in a position whereby by your actions are jeopardising your continued employment for the sake of refusing to attend an Informal investigation meeting which I must stress again, is not a formal hearing and is not therefore one which you are entitled to be provided with any set notice to attend or entitled to attend with an independent representative. No conclusions have been reached in relation to the subject matter of Tom Halpin’s grievance and all we are seeking to do is give you an opportunity to provide your account of events prior to considering whether any further action is necessary in relation to this matter. I would ask you to think very carefully about your continued refusal to cooperate In this matter and to the potential consequences of you continuing to maintain this position. I note that you have previously referred to taking advice in relation to this matter and I would strongly urge that if you are taking advice that you update your adviser as to the current situation and would very much hope that they would encourage you to cooperate with the Company's investigations. Should there be any repeat of these issues, or any other misconduct by you. further disciplinary action will be commenced. As any further disciplinary action may result in your dismissal. I urge you to address these issues immediately and to follow the Company‘s rules and procedures. You have the right to appeal against this decision. if you wish to appeal. you must state your grounds of appeal in writing to Jonathan Davies - Head of Finance within 5 days of the date on this letter.[46]The Claimant received this letter. She did not appeal.[47]From Tuesday 14 June 2016, the Claimant commenced a period of sickness absence which continued for the remainder of her employment. A GP Fit Note dated 14 June 2016 was sent to the Respondent; it stated that she would be unfit until 28 June 2016, giving the reasons “work-related stress and anxiety”. On 17 June, Ms Wheeler wrote, acknowledging contents of the Fit Note and proposing 9am on 29 June 2016, the anticipated return date, for the “purely investigatory and informal” meeting concerning the Halpin matter.[48]The Claimant did not return on 29 June 2016, and a letter was sent that day by Ms Wheeler asserting that the Claimant had not contacted the Respondent and that the Claimant was in breach of the absence policy and (therefore) on unauthorised absence. In fact, the Claimant had obtained a fit note on 28 June 2016 for the period 28 June to 12 July, stating that the Claimant was unfit for the same reason as before. According to Ms Wheeler’s letter of 5 July 2016, this note was received by the Respondent on 1 July 2016. The letter alleged that the Claimant had not contacted the Respondent prior to 1 July and criticised her for that, stating it was a breach of the absence notification procedure. The letter 10 of 21 stated that the meeting re Halpin would be arranged after 13 July (the potential return date).[49]In fact, the Claimant’s son had successfully contacted the Respondent by phone around 14 June 2016. On later occasions, family members including the Claimant’s brother attempted to speak to the Respondent to update them, not always successfully.[50]A further fit note for the period 12 July to 26 July was submitted to the Respondent, giving the same reason for the absence. On 13 July 2016, Ms Wheeler wrote to acknowledge receipt of the note and an absence notification from the Claimant’s son. The letter invited the Claimant to a meeting on 19 July to discuss her absence and measures the Respondent might take to alleviate her stress. The Claimant did not attend the meeting. By letter dated 22 July 23016, Ms Wheeler rescheduled the welfare meeting for 26 July 2016 and stated that she regarded the request to attend as reasonable and asked for the Claimant to contact her to give reasons if she was not going to attend.[51]A fit note covering absence from 25 July 2016 to 7 August 2016 was submitted to the Respondent, citing work related stress. On 28 July 2016, a union representative contacted Ms Wheeler to state that the Claimant had received medical advice that she should not attend work meetings for the time being as it would be detrimental to her recovery.[52]On 29 July 2016, Ms Wheeler wrote to the Claimant and asked the Claimant to ask her GP to confirm when the Claimant was likely to be fit enough to attend work meetings and whether there were any adjustments that might help, including off site meetings, or allowing the Claimant to have a non-work companion. The letter also stated that the Respondent proposed that the Claimant should attend an Occupational Health (“OH”) appointment, asserting the contractual right to insist on this.[53]The Claimant’s reply to that is at R240. It is not dated, but Mr Capp states, and I accept, it was received by the Respondent on 3 August 2016. The letter agreed that the Claimant would ask her GP the questions, and acknowledged the need for her (via family members, potentially) to keep the Respondent updated. It made no direct response to the request for confirmation that she would attend an OH appointment, other than stating she needed more time to fully respond to the Respondent’s letter.[54]A fit note for absence of 3 weeks from 2 August 2016 was supplied to the Respondent, citing work-related stress and anxiety. There was also a “to whom it may concern” letter from the GP dated 2 August 2016. The letter confirmed the contents of the fit notes and that they had been issued after the Claimant had been seen at surgery. It stated the fit notes were intended to allow the Claimant to refrain from the workplace while she was being treated (having therapy sessions). It gave no estimated end date, and suggested no adjustments, and stated the fit notes would continue to be issued until the Claimant was fit to return to work. 11 of 21[55]The Respondent did receive this communication from the GP but, prior to doing so, on 4 August 2016, Ms Wheeler wrote to the Claimant giving her 7 days to supply the information requested in the 29 July letter.[56]On 9 July, Ms Wheeler wrote directly to the GP to acknowledge receipt of the GP letter and asking for specific information about timescales and what the Respondent could do to assist. On 22 August 2016, Ms Wheeler wrote to the Claimant to state that the GP required written consent to answer these questions and supplied her with a consent form.[57]A fit note to cover absence for the period 22 August to 26 September was submitted to the Respondent.[58]On 30 August, Ms Wheeler wrote a reminder letter to her 22 August letter stating that no response had been received (by the requested deadline of 26 August, or at all). The letter concluded: As I hope I have made clear In these letters, the reason I am asking for an occupational health referral and the reason I have asked for your consent to contact your GP to ask some further questions following their letter dated 2 August, is to attempt to manage your current sickness absence and to manage the other on-going matters, such as the grievance Investigation As I have previously stated, if you do not cooperate with us we may be left with no option but to consider making decisions in relation to these matters without the benefit of full medical information. As previously advised, I cannot see that is in your interests and would therefore urge you to consider your position and to respond to my letters dated 4 August and 22 August. I would also reiterate that in relation to OH, you have agreed under your contract of employment that the Company can refer you for an independent medical assessment and would note that in relation to both matters (OH referral and consent for your GP), the Company does consider it a reasonable management request for you to respond to these requests within the time-frames provided (and extended on occasion at your request), which we consider reasonable. If I have not received the consent to contact your GP and DH referral back by close of play on 2 September I will unfortunately, have to consider next steps.[59]In response, the Respondent received a letter dated 6 September from the Claimant. It said the Claimant needed more time to respond and that either she or a union representative would reply by Friday 16 September.[60]No such contact was received. On 21 September 2016, the Respondent wrote to the Claimant with a letter headed “disciplinary hearing”.60.1 The disciplinary hearing was for 27 September 2016.60.2 The letter was from Clive Capp, Senior Vice President - Group HR & Recruitment. Mr Capp is not an employee of the Respondent but provides Human Resources (HR) advice to the companies in the group. His letter stated that he would be chairing the disciplinary hearing.60.3 The letter enclosed disciplinary procedure from the Employee Handbook (being the same Handbook that is in the hearing bundle). 12 of 2160.4 The allegations were said to include “the subject matter of Tom Halpin’s grievance” but did not say what specific misconduct the Claimant was accused of. The allegations were also said to include failure to attend investigation meetings for this matter and alleged that the Claimant had failed to follow the absence notification procedure, without specifying particular dates/periods.60.5 The letter referred to the fact that the Claimant had been given “a final written warning on 10th June” and stated a possible outcome was dismissal.60.6 The letter finished: If you are unable to attend please inform me by Monday 26th September 2016 explaining your reasons for not attending. if you cannot attend you may wish to provide written submissions for my consideration prior to a decision being made. If you fail to attend without good reason or prior notification, the hearing may take place in your absence and a decision made based on the evidence in our possession. As this meeting may result in your dismissal, I urge you to attend[61]The Claimant replied by letter dated 23 September. She acknowledged that she had not sent a communication by 16 September, and stated that she was still awaiting “a response and communication from my professional adviser”. She said that she or her adviser would be in touch “in due course”. A fit note to cover 22 September to 20 October 2016 was also supplied to the Respondent. Mr Capp received both items on 26 September.[62]The Claimant did not attend on 27 September. Mr Capp did not treat her letter as either a request for a postponement or an explanation for absence. The Claimant did not submit any written submissions. Mr Capp decided to proceed in the Claimant’s absence. R253 to 255 is the meeting notes which contain his deliberations. By letter dated 4 October 2016, he wrote to the Claimant to say that she was dismissed with effect from 7 October 2016 and would be paid in lieu of one month’s notice. He informed her of a right to (and the mechanism for) appeal. His letter enclosed the meeting notes and stated that the note set out “the issues which [he] considered and [his] findings in relation to the same.” I am satisfied that the notes do indeed set out the issues which Mr Capp considered and his findings.[63]Mr Capp’s decisions were:63.1 The Claimant did not attend the Disciplinary Hearing, despite having been told that this was her opportunity to comment upon TH's grievance in the. The Claimant did not provide written despite writing “fairly voluminous correspondence to” the Respondent during her absence.63.2 The Claimant had spoken to Mr Halpin improperly on more than one occasion and Ms Burnett’s evidence supported Mr Halpin’s assertion and belief about that issue.63.3 It had been necessary for Ms Burnett to intervene to prevent it escalating. 13 of 2163.4 Mr Halpin could have handled the situation “more appropriately” but it was the Claimant’s manner which exacerbated the situation.63.5 That, according to Ms Burnett, it was not only Mr Halpin who had a difficult working relationship with the Claimant. Rather Ms Burnett regarded Mr Halpin as non-confrontational but believed other individuals believed that the Claimant might “turn on them”.63.6 He concluded that there had been “inappropriate behaviour” by the Claimant in relation to the incident (which, according to his findings, had occurred on 31 May 2016).63.7 For the allegation about failing to follow the absence reporting procedure, his decisions were: Furthermore, and in relation to the allegation that RT has failed to follow the Company's absence reporting procedure correctly in respect of her absence from work since 14‘“ June 2016, l have concluded that this allegation is upheld. Although Sick Notes have been received from her Doctor, RT has failed to give consent to welfare meetings, provide consent to contact her GP or to be assessed by occupational health specialists, despite numerous requests for the same. Furthermore, RT has committed to providing substantive responses in relation to such requests within time-frames which the Company has agreed to extend, due to RT’s absence from work for stress and has subsequently failed to meet her own requested deadlines in relation to the same. Throughout this time away from the office, RT has failed to correctly follow the Company's absence reporting procedure. All communications have been initiated by the Company and RT has repeatedly failed to adequately respond to repeated requests for meetings, medical assessments and consultative health advice.63.8 He took into account the warning and decided that it was appropriate to dismiss the Claimant for the “further misconduct” which he had decided had occurred.[64]The Respondent received a letter (R257) slightly outside the 5 day deadline. The letter said the dismissal letter had been received on 6 October. It said she would like to appeal, but before doing so (or at least before providing detailed grounds) she intended to seek advice. It also stated that she was not well enough to submit a full appeal straight away and that she would be in touch as soon as she was well enough. By letter dated 14 October 2016, the Respondent replied stating that the Claimant’s letter had been received that day and concluding: Whilst I am not able to deal with your appeal without grounds, the decision to terminate‘ your employment stands. If, when you are well enough to do so, you do wish us to consider the situation further please contact Clive or me. I cannot, however. guarantee that this matter would be dealt with as a formal appeal against dismissal. given, that I cannot leave‘ open indefinitely your right to appeal. However, I will consider further if, or when, I receive your further correspondence.[65]There was no further follow up from the Claimant to the Respondent in relation to potential appeal. 14 of 21 Law[66]Section 98 of the Employment Rights Act 1996 (“ERA”) says (in part)(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee, … (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.[67]The respondent bears the burden of proving, on a balance of probabilities, that the claimant was dismissed for the fair reason relied on. (Conduct).[68]Provided the respondent does persuade me that the claimant was dismissed for that reason, then the dismissal is potentially fair. That means that it is then necessary to consider the general reasonableness of that dismissal under section 98(4) ERA 1996. In considering this general reasonableness, I must take into account the respondent’s size and administrative resources and I must decide whether the respondent acted reasonably or unreasonably in treating the conduct as a sufficient reason.[69]In considering the question of reasonableness, I must analyse whether the respondent had a reasonable basis to believe that the committed the conduct in question. I must also consider whether or not the respondent carried out a reasonable process prior to making its decisions. In terms of the sanction of dismissal itself, I must consider whether or not this particular respondent's decision to dismiss this particular claimant fell within the band of reasonable responses in all the circumstances. The band of reasonable responses test applies not only to the decision to dismiss, but also to the procedure by which 15 of 21 that decision was reached. (Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23 CA).[70]It is not the role of this tribunal to assess the evidence and to decide whether the claimant should or should not have been dismissed. In other words, it is not my role to substitute my own decisions for the decisions made by the respondent.[71]The ACAS Code of Practice on Disciplinary and Grievance Procedures must be taken into account by the Employment Tribunal if it is relevant to a question arising during the proceedings (see section 207(2) of the Trade Union and Labour Relations (Consolidation) Act 1992). The ACAS Code sets out one procedure, for both ‘conduct’ and ‘poor performance’, but acknowledges that an employer might choose to have separate procedures. Having (and following) a separate procedure for performance is permissible, provided that the procedure for poor performance meets the basic principles of fairness set out in the Code. The ACAS Code confirms the importance of warnings as part of the process.[72]In Wincanton Group plc v Stone [2013] IRLR 178, at para 37 Langstaff P gave a summary of the law on warnings in misconduct cases.(1) The Tribunal should take into account the fact of that warning.(2) A Tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a Tribunal is entitled to give that such weight as it sees appropriate.(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the Tribunal is satisfied as to the invalidity of the warning.(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employer, and therefore Tribunal should be alert to give proper value to all those matters.(5) Nor is it wrong for a Tribunal to take account of the employers' treatment of similar matters relating to others in the employer's employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of the sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration. 16 of 21(6) A Tribunal must always remember that it is the employer's act that is to be considered in the light of section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur.[73]In Bandara v BBC 2016 WL 06639476, the EAT confirmed (having considered both Wincanton and also the Court of Appeal’s review in Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374) that a tribunal assessing an unfair dismissal claim can, in an appropriate case, decide that the sanction of final written warning for a prior incident was a manifestly inappropriate sanction. A tribunal should only take that step if it there is something that is drawn to the tribunal’s attention which enables it to conclude that the sanction plainly ought not to have been imposed, and this requires more than simply deciding that the sanction of final written warning had been outside the band of reasonable responses.[74]Subject to the comments above, where a final written warning is live, then the issue of whether the decision to dismiss was fair or unfair requires consideration (as per Section 98(4)) of whether, in the particular case, it was reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant.
Conclusions
[75]I have already stated in my findings of fact that the Claimant brought her claim against the correct respondent, namely her former employer. To the extent that the Claimant argues that the correct respondent (and/or her former employer) failed to submit a valid response, I reject that argument. The ET3 (R15) and other documents correctly identified “Expansys UK Ltd” as the company was then called. As an aside, an argument from the Claimant that she has not brought a claim against “Expansys UK Ltd” (as it was then called) does not assist her case in any event; that entity was her employer, and so if my decision had been that her claim had not been validly brought – in the first place – against Expansys UK Ltd, then she would be left needing to make an application to amend the claim to add the correct respondent, if she sought to a finding of unfair dismissal.[76]Mr Capp decided that there had been misconduct by the Claimant in two respects. I will deal with each separately first. Halpin Incident[77]I am satisfied that Mr Capp did genuinely conclude that the Claimant had acted “inappropriately”. He was not able to give specific information, but rather relied on Ms Burnett’s comments that there had been an ongoing pattern of behaviour.[78]Taken in isolation, to the extent that he found that the situation would have escalated but for Ms Burnett’s intervention, I do not think there are reasonable grounds for that specific conclusion. I think it is contrary to what Halpin said and Burnett said she did not know. 17 of 21[79]To the extent that he found that the Claimant was responsible for the situation, the question is not what I would have decided had I been the decision-maker; the question is whether there were reasonable grounds for him to reach the conclusion that the Claimant was responsible. He did note that Mr Halpin was the person who swore (as confirmed both by him and Ms Burnett). He did not have the same information that I have from the Claimant – namely that she believes that Mr Halpin reacted to her refusing to do something which, in her opinion, was a refusal she was obliged to make. Rather he had the notes taken by Mr Hughes in which Halpin alleged that the Claimant was often obstructive and that 31 May 2016 was a further example, and in which Burnett alleged that Halpin’s request had not been unreasonable and that the Claimant’s response had been inappropriate. Burnett did not claim to have heard the exact response uttered by the Claimant, but the implication from her account is that she, the Finance Manager, knew what the Claimant had been asked to do and did not believe that the Claimant was being sufficiently co-operative. She also stated her opinion that other people (whom she named in the notes) found the Claimant difficult. There was, therefore, reasonable evidence for Mr Capp’s conclusion that the Claimant had behaved inappropriately.[80]In terms of what response there should be, he had before him evidence that there had previously been mediation between the Claimant and Mr Halpin, and that had failed. Ms Wheeler had left the organisation by this stage, and he did not have her account of what the Claimant had said to her. He did not have it from Ms Wheeler and he did not have it from the Claimant. Sickness Reporting[81]In terms of any alleged unauthorised absence, the only period for which there was evidence was for 29 and 30 June 2016. That is the expiry of the first fit note, immediately before the Respondent received the second one. Upon reading it, Mr Capp would have been aware that the Claimant had in fact obtained that note on 28 June 2016, so the fault, if any, lay in the delay in contacting the Respondent with an update; there were no days which were uncertificated. He did not have reasonable grounds for believing that the Claimant was frequently late in supplying fit notes.[82]However, he was also entitled to (and did) have regard to clause 7.2 of the contract which reads: 7.2. The Company reserves the right to require you to have a medical examination or counselling from a doctor of its own choice at its expense. You hereby authorise the Company to have unconditional access to any report produced as a result of such examination.[83]Ms Wheeler had put the Claimant on notice that the Respondent was seeking to exercise its rights under this clause. The Claimant failed to either agree that she would attend OH or to submit detailed reasons for refusing; she did, as mentioned above, say she needed more time to consider her position and respond, and did state there were health grounds for needing more time.[84]The Claimant had also failed to supply consent authorising her GP to respond. While that was not, in itself, a contractual requirement, the Claimant was not even 18 of 21 supplying information from her own GP as a potential alternative solution to an OH appointment. Further, she and her union representative had previously said that the Claimant was willing to have her GP supply information to the Respondent.[85]For these reasons, Mr Capp did have reasonable grounds to decide that, overall, the Claimant was not providing sufficient information and co-operation about her absence, despite having been given clear information about what was required, and several reminders and extensions of time. Procedure[86]The 27 September hearing went ahead in the Claimant’s absence. Many employers might have postponed and have given the Claimant a further (and probably final) opportunity to attend or at least make written submissions. I think some employers would have done that in any event, but, in particular, I think many would have treated the 23 September 2016 letter as an implied request for postponement.[87]However, I do not consider that it was outside the band of reasonable responses to go ahead in the Claimant’s absence.87.1 Her 23 September letter simply said that she (or her “professional adviser”, whose details were not supplied) would be in touch in due course. It gave no estimate of when that might be.87.2 Ms Wheeler had written on 4 August and requested a reply by 11 August, and there was no response. She wrote again on 22 August seeking a reply by 26 August, and there was still no response. Her 30 August letter sought a reply by 2 September, and did not elicit a response from the Claimant until 6 September. That letter promised a substantive response by 16 September, which did not materialise.87.3 The Respondent had also written to ask the Claimant’s GP for comments as to when the Claimant would be fit to attend any meeting (including welfare meetings, not just disciplinaries) and about what could be done to help. No replies to these questions had been received.87.4 In these circumstances, it was not unreasonable for Mr Capp to conclude that offering the Claimant a further opportunity to attend or make written submissions was unlikely to result in meaningful co-operation by the Claimant (or a representative).[88]I acknowledge that the Claimant believes that her conversation with Ms Wheeler on 31 May 2016 (or 2 June 2016) should have resulted in:88.1 (Preferably): the Respondent treating her remarks as a grievance by her abut Mr Halpin’s conduct, and potentially a formal investigation into that conduct.88.2 (At the least): the Respondent treating her as having given her version of events, which could/should have been put in writing by Ms Wheeler and taken into account for relevant purposes. [On the Claimant’s case, taken 19 of 21 into account to the extent that there would be no investigation of her conduct at all, but, at least put before Mr Capp.][89]However, Ms Wheeler was involved in writing to the Claimant from 8 August 2016 onwards. In one email, Ms Wheeler asserts that she told the Claimant during the prior conversation that there would be an investigation. Regardless of whether (as the Claimant maintains) that should have been an investigation into Mr Halpin’s conduct (instead of or as well as the Claimant’s), it was clear to the Claimant that Ms Wheeler was not intending to put forward Ms Wheeler’s account of what the Claimant had said and that, if the Claimant wanted to give her own account, she would need to do so, either face to face or in writing. In the first instance she was asked to do this to Mr Hughes (and this was before her sickness absence began) or later to Mr Capp (which could have been in writing).[90]I acknowledge the Claimant’s argument that by swearing at her, Mr Halpin committed a breach of the Code of Conduct and that he was not formally punished. However, I also accept Mr Capp’s account that he had been told that Mr Halpin acknowledged that he ought to have behaved better. More importantly, the Claimant had the opportunity to put her case across and that could have included any arguments that she should not be given any stronger sanction than Mr Halpin and/or that he, rather than she, should be disciplined.[91]I acknowledge that the Claimant was ill at the time. However, the Respondent sought to follow a procedure which took account of that. While I do not agree that the Claimant’s letters were “voluminous” I am satisfied that the procedure would have allowed her to put in a brief summary of the reasons that her conduct on 31 May 2016 (or thereabouts) was appropriate. She also had the means and opportunity to give consent for her GP to answer the Respondent’s questions, which might have led to adjustments to the procedure or timescales. It was not unreasonable for the Respondent to adhere to the procedure it followed when it had made clear to the Claimant that, with evidence, there might be adjustments, and the Claimant had failed to address that. Dismissal Decision[92]I do not agree with the Claimant that Mr Capp was obliged to disregard the written warning because it was issued earlier in the same related series of events. The warning was specifically for failing to attend the meeting(s) on 8 June 2016, which was treated as failing to comply with an instruction. The warning was not for either the Halpin incident or the failure to follow appropriate procedures during absence. Furthermore, the fact that the warning post-dated the Halpin incident did not oblige the Respondent to ignore it.[93]Standing back, I regard the decision as being at the harsher end of the spectrum, both in terms of the dismissal outcome, and in terms of going ahead on 27 September without offering one last and final opportunity to respond to the allegations. However, as already stated, I have information (the Claimant’s assertion that there were sound reasons for declining to do what Mr Halpin wanted, and that he misunderstood her reasons for refusing) which Mr Capp did not have. The Claimant had the opportunity to put that argument to him, but did not do so. On the evidence before him, a reasonable request was made to the 20 of 21 Claimant on 31 May 2016 and she unreasonably refused to co-operate with her colleague, not (on the evidence before Mr Capp) for the first time. The decision to dismiss, taking account of the written warning, was not outside the band of reasonable responses.[94]For these reasons, the claim fails.