Miss R Smith v London Borough of Haringey: 3300375/2023
EMPLOYMENT TRIBUNALS
Case No 3300375/2023
Between
Miss R SmithClaimantLondon Borough of HaringeyRespondent
Before
Employment Judge ManleyMr P Smith (instructed by counsel) for claimantMr J Mitchell (instructed by counsel) for respondentDate 30 July 2024
REASONS
[1]This preliminary hearing was listed to consider the respondent’s application to strike out the claim or part of it as an abuse of process. The present claim (case no 330375/23) is a claim for unfair dismissal and holiday pay (as unlawful deduction of wages and/or breach of contract). The claimant objected to the application which related to the fact that the claimant had presented an earlier claim against the respondent on 7 March 2022 (case no 3302814/22) which had been withdrawn on 20 October 2022. There had been an even earlier claim in 2020 (case no 330569/19) but that was settled with a COT3 and is hardly relevant to the application. The preliminary hearing was also to deal with case management for the progression of the case.
The hearing
[2]At the commencement of the hearing, it was necessary to clarify what documents had been sent electronically as I did not have them all. They were forwarded to me and included a file of documents, legal authorities and skeleton arguments. I then took a short break to read the essential documents and it was clarified by the respondent’s representative that the application to strike out only related to the holiday pay part of the claimant’s claim. I then heard oral submissions and gave oral judgment. We then moved on to case management for the merits hearing which is listed for July 2024. Submissions and law[3]The respondent’s case, in summary, is that the holiday pay part of the claim should be struck out as an abuse of process, applying the principle in Henderson v Henderson. Its case is that the claim for holiday pay should have been brought in earlier proceedings. It is not argued that the holiday pay claim was brought in the earlier proceedings but that it should have been.[4]I was asked to consider several cases on the Henderson v Henderson principle, including Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2013] UKSC 46, Agbenowossi-Koffi v Donvand Limited [2014] EWCA Civ 855 CA and Johnson v Gore Wood [2000] 2 AC1. In particular, it is submitted, I should consider what are said to be the Johnson principles because, in that case, as in this, the previous claim was withdrawn. Those principles include the requirement for the court to make a “broad, merits based judgment” and consider whether “a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before”. It is not necessary for there to be harassment of the other party to the litigation (Agbenowossi-Koffi).[5]In oral submissions, Mr Mitchell took me to the relevant pages of the file of documents. I can see that there was no claim for holiday pay in the 2022 claim but it is submitted that the period of holiday claimed under paragraph 57a of this claim was one which should have been brought in that claim.[6]The claimant vigorously opposed the application to strike out the holiday pay claim. Mr Smith referred me to Regulations 13 and 14 of the Working Time Regulations 1998, pointing out that compensation for untaken holidays cannot be paid until after termination of employment and that there had been adjustments during the pandemic to allow carrying forward of holidays. The claimant’s case is that she could not have brought the holiday pay claim in either of her earlier claims because she was still employed. It is agreed that a broad merits based approach is what is required and it was submitted that this claim for holiday pay is not an abuse of process.[7]There was some discussion about whether the holiday pay claim was being brought as unlawful deduction of wages or a breach of contract claim, which could not, in any event, be brought whilst the claimant was still in employment, which she was until this claim was presented. At the moment, in the agreed list of issues both heads of claim are pleaded.
Conclusions
[8]I accept that many of the arguments and the cases to which I was referred are concerned with there being finality in litigation. I decided not to strike out the holiday pay claim. The principles are relatively clear and where a claim should have been brought in a claim, it may amount to an abuse of process, if it is brought in subsequent claims.[9]The first thing to note is that the claimant did not bring a holiday pay claim in the 2022 claim but did bring one for unfair dismissal. She withdrew that claim, it seems because she got legal advice and was still in employment. Her claim now for holiday pay spans years from 2020-2021 and 2021-2022 (and some in 2022-2023). I cannot find that these claims should have been included in previous claims, not least because, in part, they rely on the special pandemic rules about carrying over of leave. The very fact that compensation of untaken holiday and a breach of contract claim can only be awarded after employment has ended, means the claimant could not have brought the holiday pay claim any earlier than she has. The principles in Henderson v Henderson simply do not bite in a case like this.[10]I do not find that bringing this holiday pay claim amounts to an abuse of process. It does not amount to harassment and, applying a broad merits-based assessment, this is not a matter which should be struck out. The respondent will have to defend the unfair dismissal claim in any event and has not had to consider its response to a holiday pay claim before. The holiday pay claim was not claimed in the 2022 claim and, in any event, it cannot be said it should have been raised there as compensation cannot be paid until the employment has ended.[11]There is no strike out of the claim for holiday pay as it is not an abuse of process. The claim proceeds to be determined along with the claim for unfair dismissal.
Introduction
[1]The Claimant was employed by the Respondent as an Inquest Manager and Clerk to the Senior Coroner. The Claimant's role was to ensure the effective operation of the Coroner's Court and provide support to His Majesty's Coroner and the Coroner's Court.[2]It is worth saying right at the outset that the Claimant’s role was a slightly unusual one. Her day-to-day job was to assist the Coroner - an independent judicial officer holder. However, all other aspects of her role (line management, appraisal, absence management etc) were the responsibility of the local authority that employed her (the Respondent).[3]The Claimant’s employment began on 18 July 2016 and lasted until her dismissal on 14 October 2022.[4]The Claimant makes a complaint of unfair dismissal under section 111 of the Employment Rights Act 1996 (“ERA”).[5]The Respondent’s defence is that the Claimant was fairly dismissed for “some other substantial reason” under section 98(1)(b) of the ERA. The “substantial reason” relied upon is that the working relationship between the Claimant and the Respondent had irretrievably broken down.[6]The Claimant also makes a claim in respect of accrued but untaken holiday pay in her 2020-21 leave year, that she says it was not reasonably practicable for her to take during the Covid-19 pandemic. The Respondent’s position is that the Claimant was not entitled to carry-forward the amount that is claimed.[7]ACAS early conciliation took place from 19-21 October 2022. The Claim form was lodged on 13 January 2023 and the Response form received on 15 March 2023.[8]This final hearing was scheduled for five days from 1-5 July 2024. However, during the hearing both parties agreed that a reserved judgment was desirable. The Claimant referred to a desire to save costs if the fifth hearing day was vacated. The Respondent was also agreeable because it is a local authority and would clearly be busy on 5 July, given the 4 July UK General Election.[9]I pointed out to the parties that this would mean that they were consenting in advance to the full written reasons being a matter of public record on the Tribunal website, without yet knowing the outcome nor having received the reasons orally. Both parties were nevertheless content not to hear oral reasons and to just receive a reserved written judgment.[10]I agreed to the parties request because I also considered it likely to save Tribunal costs by avoiding a situation whereby oral reasons were given and written reasons were then later requested. Preliminary issues regarding witness statements[11]The Respondent raised two preliminary issues regarding some of the witness statements provided by the Claimant:a. that the Claimant’s supplemental witness statement had been provided on 6 April 2024, which was three days after the 3 April 2024 deadline set by the Tribunal for exchange of witness statements, andb. that the witness statement of Mr Andrew Walker (“the Coroner”) in support of the Claimant was being provided without the Coroner attending the hearing to give oral evidence on that witness statement.[12]On the first question, I decided that I would allow the Claimant’s supplementary witness statement to be admitted for the following reasons:a. The overriding objective in rule 2 of the Employment Tribunals Rules of Procedure 2013 requires me to deal with cases fairly and justly, including “avoiding unnecessary formality and seeking flexibility”. Although the Claimant is legally represented and should have complied with the deadline set by the Tribunal, I consider it in the interests of justice for the Claimant to be able to submit statements in support of her case.b. The supplemental statement was provided only three days after the deadline set by the Tribunal. Between the date it was provided (6 April 2024) and the date this hearing began (1 July 2024), there has been plenty of time for the Respondent to take account of the supplemental statement and prepare to deal with what it says.c. The supplemental witness statement does not raise any new issues as such; in large part it just reiterates the Claimant’s disagreement with the Respondent’s position, as set out in the Respondent’s witness statements. On that basis it is hard to see any prejudice to the Respondent when there is nothing substantively new being raised.[13]On the second question of the Coroner’s witness statement, the Respondent did not object to it being admitted, but just requested that I should not attach as much weight to it as I would had the Coroner been cross-examined on it.[14]Again, I was happy to admit this statement. It is essentially a reference from the Coroner attesting to the Claimant being hard-working, polite and professional. It is not really in dispute in this case that the Claimant and the Coroner had a good working relationship. Therefore, although I note the contents of the statement, it does not assist in my determination of the issues in this case, which are about the relationship between the Claimant and the Respondent. List of Issues[15]There was an agreed List of Issues between the parties. However, I have amended it slightly to take account of the fact that the Remedy aspects of the unfair dismissal claim are not required given that claim has been dismissed. I have also simplified the holiday pay claim issues given the clarification from the Claimant during the hearing that she was only seeking payment of holidays accrued in the 2020-21 leave year. 1. Has the Respondent proven the principal reason for dismissal, and was it a potentially fair one?:a. The Respondent contends that the principal reason for dismissal was some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the Claimant held, namely a breakdown in trust and confidence.b. The Claimant contends that the reason relied upon by the Respondent was not the principal reason or, in the alternative, that the Respondent will not prove that the contended-for reason was the principal reason for her dismissal. 2. If the Respondent has proven the principal reason for dismissal, was the dismissal actually fair taking into account whether in the circumstances (including the size and administrative resources of the employer's undertaking) the Respondent acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the Claimant, in accordance with equity and the substantial merits of the case? 3. In the leave year 2020-21 was it not reasonably practicable for the Claimant to take some or all of the leave to which she was entitled under regulation 13 of the Working Time Regulations 1998 as a result of the effects of coronavirus (including on the Claimant, the Respondent or the wider economy or society), entitling her to carry forward such leave? 4. Taking into account any entitlement to carry over regulation 13 leave from the leave year 2020-21, how much leave had the Claimant accrued, but not been paid for, as at the effective date of termination? Procedure, documents and evidence heard[16]The parties submitted the following documents as evidence:a. A main bundle of 2123 pagesb. A Claimant bundle of 683c. A witness statement bundle of 42 pages containing statements from: i. Jessica Crowe (dismissing officer) (“Ms Crowe”) ii. Zena Brabazon (appeal officer) (“Ms Brabazon”) iii. Tanya Patchett (Head of Employee Relations – dealing with holiday pay claim) (“Ms Patchett”) iv. The Claimantd. A supplemental witness statement from the Claimant of 7 pagese. A witness statement from the Coroner[17]I was also provided with:a. A neutral chronologyb. A cast listc. Written opening and closing submissions from the Respondentd. An authorities bundle of 340 pages with a supplemental case of 26 pages[18]I heard oral evidence from Ms Crowe, Ms Brabazon, Ms Patchett (all for the Respondent) and from the Claimant.[19]I have carefully considered the documentary evidence provided, together with the parties’ oral evidence and closing submissions, and the Respondent's written closing submissions.
Findings of Fact
[20]I have made the following findings of fact on the balance of probabilities having heard the evidence and considered the documents. These findings of fact are limited to those that are relevant to the issues listed above, and necessary to explain the decision reached.[21]All references in brackets to a “p” and then a number are to page numbers in the main bundle of 2123 pages, unless otherwise stated. The reason for dismissal[22]The Respondent’s position is that the Claimant was dismissed for “some other substantial reason”, namely that the relationship between the parties had irretrievably broken down.[23]At the outset, it’s important to note that, from the Respondent’s perspective, I did not hear witness evidence from anyone who actually worked with, or had experience of the Claimant as an employee. Ms Crowe only joined the Respondent in June 2022 and was asked to chair the 29 September 2022 meeting at which it was decided the Claimant would be dismissed (having had no previous involvement with the Claimant). Similarly, I heard witness evidence from Ms Brabazon who chaired the appeal panel but had had no prior involvement with the Claimant.[24]I believe it is worth setting out my findings of fact on each of the subject areas which the Respondent says led to the irretrievable breakdown of the relationship. The Long investigation[25]An external HR consultant (Louise Long) was asked to investigate, and prepare a report on, concerns that had been raised by the Met police about their interactions with the Claimant in her role as coroner’s clerk (“the Long investigation”).[26]The Long investigation was initiated by the Claimant’s line manager at the time, Mr Hunt. Mr Hunt had been made aware on 27 July 2020 of allegations of bullying and harassment made by members of the Met police against the Claimant regarding how she was conducting herself in the course of her work for the Coroner.[27]The Long investigation ran from October 2020 until July 2021. Although it ultimately concluded that there was no case to answer, it recommended that the Claimant reflect on her communication style, how to strike the right tone and avoid offence or misinterpretation.[28]On 12 July 2021, the Claimant emailed her line manager, Mr Hunt, to suggest “there is a case that a grievance should now be raised against you” (p650). I do not find any evidence to suggest that a grievance against Mr Hunt was warranted, given he commissioned the Long investigation in response to concerns raised by a third party with whom the Claimant was required to engage and correspond i.e. the Met Police. The line management of Ms Alderman[29]On 2 July 2021, Ms Alderman (Monitoring Office and Head of Legal and Governance) became the Claimant’s line manager.[30]It was not disputed between the parties that the Claimant and Ms Alderman had initially exchanged cordial emails seeking to move on from previous issues and reset the relationship between the Claimant and the Respondent.[31]On 14 July 2021, Ms Alderman emailed the Claimant to say, in response to the Claimant’s concerns about what would happen off the back of the Long investigation, “I would want to give you reassurance that there is no suggestion that you should be dismissed due to misconduct and on the contrary I look forward to working with you”. (p647-8).[32]However, at the first 1to1 between the Claimant and Ms Alderman on 2 August 2021, the Claimant admitted in evidence that she covertly recorded the conversation. I am not persuaded by the Claimant’s evidence that she did this because she felt insecure, given the very reassuring words from Ms Alderman in the email mentioned above. I find it more likely that it was recorded due to a lack of trust between the parties. The “personal relationship” allegation[33]I heard a lot of evidence regarding a matter relating to the Coroner writing to the Lord Chancellor appealing against the Respondent’s decision not to grant him an indemnity in respect of legal proceedings. I do not find it necessary to delve into this matter in detail. The only findings of fact I need to make on this issue that are relevant to the claim I am considering are:a. The Coroner did write to the Lord Chancellor (p2106).b. That letter made a number of references to the Claimant and her strained relationship with the Respondent.c. That letter requested that the Claimant’s role be upgraded and ringfenced.d. The Lord Chancellor’s response (p2115) allowed the Coroner’s appeal but said “I would wish to register my serious concern at the prospect of a Senior Coroner using litigation to settle a dispute with their funding authority”.e. Ms Alderman (as Monitoring Officer) instructed solicitors to write to the Coroner’s solicitors to “seek clarity as to whether there is or at any stage has been a personal relationship between the Coroner and Ms Smith [the Claimant]” (p2117).[34]I accept the Claimant’s evidence that, when she became aware of this allegation, she was understandably upset and embarrassed. It is an important point that the Claimant became aware of this allegation by being told by the Coroner. The Claimant had not seen the exchange of letters between the Coroner and Lord Chancellor, nor between the Respondent’s solicitors and the Coroner’s solicitors.[35]In light of her upset, it is clear that the working relationship broke down between the Claimant and her line manager, Ms Alderman. At a meeting on 8 November 2021 (which was supposed to be a “myconversation” objectives-setting 1to1 meeting between the Claimant and Ms Alderman, the Claimant unexpectedly invited the Coroner to join and made the conversation about the ”personal relationship” allegation. Ms Alderman did not engage in that conversation and stated that any discussions should be via solicitors. The breakdown of the line management relationship with Ms Alderman[36]The Claimant repeatedly requested a change of line manager in December 2021 and January 2022 (e.g. p140). That resulted in a 21 January 2022 invitation (p207) from Ms Alderman to an “informal meeting” on 31 January 2021 between the Claimant, Ms Alderman and HR. Given that invitation said “there are no plans to change your line manager” (p208) the Claimant thought the conversation was being shut down in advance and she chose not to attend.[37]On 2 March 2022, the Claimant brought an Employment Tribunal claim. That claim was subsequently withdrawn after her dismissal and replaced with this current claim. Failure to follow reasonable instructions[38]In the final year of the Claimant’s employment there are a number of examples of a deliberate failure to follow reasonable management instructions. I find that the recurring theme is a perception on the part of the Claimant that she (and the Coroner) are able to overrule the Claimant’s line manager.[39]Firstly, regarding copying in the Coroner inappropriately, the Claimant was asked on a number of occasions to respect the appropriate lines of communication but did not do so. An example is on 16 February 2021 when Mr Hunt (the Claimant’s line manager at the time) said in an email to the Claimant: “I have made a reasonable management request that you do not copy the Senior Coroner in on emails between us concerning our line management relationship. I would like to repeat this again - please do not copy the Senior Coroner in on emails between us concerning our line management relationship.”[40]Secondly, in relation to a requirement to implement the Civica software system. The Claimant accepted in evidence that this project was her responsibility from March 2020 onwards. However, it is clear from the email evidence that this project had not been progressed, despite concerns being raised by Ms Alderman about the cost of having parallel software systems running in December 2021 (p105). Even in April 2022, the Claimant was partly blaming the pandemic for delays and still refusing to complete this task until she was “secure in my employment” (p296).[41]Thirdly, the Claimant did not invite Ms Alderman to health and safety meetings. This was despite repeated requests from Ms Alderman (as the Claimant’s line manager, and Monitoring Officer) to be included (p1981). I find the Claimant’s response to be surprisingly defiant and dismissive of her line manager. She states “I will keep matters under review. I will continue with local management and where there is a corporate meeting invite you. This means my management role is not undermined” (p1979).[42]Fourthly, regarding the recruitment of an inquest assistant, the Claimant is similarly unaccommodating of a request that she be part of the recruitment panel. The Claimant suggests (p865) on 18 October 2021, that there has been a “narrowing of an open, fair competition”, “ongoing enquires by the Chair, with the Coroner about the nature of his relationship with me” and “Having discussed these concerns with my solicitor, I am withdrawing from the panel and paper sift.” Even though this assistant role was designed to support the Claimant and ease her workload, I find that the Claimant was again being obstructive to the Respondent achieving its recruitment objective.[43]The Claimant also gave evidence that she found it odd that Ms Alderman wanted to be the recruiting manager when it would normally be a local manager. I find this to also be noteworthy and symptomatic of the Claimant’s overall stance (even at this hearing) that she knew better than her line manager. The Major investigation[44]Given all of the history set out above, culminating in the Claimant’s refusal to attend the informal meeting with Ms Alderman and HR in January 2022, the Respondent commissioned an investigation into the relationship between it and the Claimant. This was instigated and explained to the Claimant by letter of 15 March 2022 (p259) and Mr Major was appointed in May 2022.[45]The Claimant accepted in evidence that Mr Major was an external investigator, an employment solicitor, and unconnected to the Respondent. The Terms of Reference essentially were for Mr Major to consider whether the relationship between Claimant and Respondent had irretrievably broken down (“the Major investigation”).[46]It is not disputed that the Claimant refused to engage with the Major investigation. The Claimant accepted in evidence that she knew she could provide oral or written evidence to Mr Major. However, she did not provide any evidence to him, nor suggest any witnesses from whom Mr Major should take evidence.[47]In fact, the Claimant instructed Mr Craig (her friend, who is a non-practising solicitor acting in a personal capacity) to challenge the legitimacy of the Major investigation. At various points, Mr Craig threatened to report Mr Major to the Solicitors Regulation Authority, the Information Commissioner’s Office, the local MP and the police.[48]I also find the following to be a key piece of correspondence from Mr Craig to the Respondent in May 2022 (p1866), which states: “If Mr Major’s investigation continues, we ask you or your client to confirm to me directly in writing, that it will not directly involve Ms Smith in any of the process and merely send her the conclusions. She has no desire to participate in a process which she suspects has already made its determinations before it’s been completed. She does not wish to communicate or assist in any way on/with your client’s meaningless illegal investigation.” (my emphasis).[49]In her oral evidence at this hearing, the Claimant also sought to characterise the Terms of Reference of the Major investigation as being a copy and paste of the Long investigation. However, I do not find that to be the case. The Long investigation related to the Claimant’s relationship with a third party – the Met police. The Major investigation related to the Claimant’s relationship with the Respondent; her employer. I find it understandable that there may be some cross-referencing given that the Long investigation’s criticisms of the Claimant’s communication behaviour would inevitably be part of the overall considerations about whether the Claimant’s relationship with the Respondent had broken down.[50]As well as Ms Alderman, the Respondent asked Mr Major to interview four of the Claimant’s previous line managers. All of these people provided evidence to Mr Major that the Claimant was extremely difficult to manage and resistant to receiving, and acting on, instructions. The theme that emerged was that the Claimant would defer to the Coroner rather than her line managers. When asked in cross-examination if she accepted that she had fallen out with at least three of her previous line managers, the Claimant’s response was “they had fallen out with me”.[51]In this hearing, the Claimant referred to other previous line managers (e.g. Ms Clune-Georgiou) who would have given positive feedback about the Claimant if Mr Major had interviewed her. However, I accept the point made by Ms Crowe in her evidence that even if there was a previous line manager that had had a positive relationship with the Claimant, there were at least four others that had not. In other words, there was sufficient evidence from which Mr Major could conclude that the Respondent was right to be concerned that the relationship had irretrievably broken down.[52]I am satisfied on the evidence that the Major investigation was an impartial and thorough investigation that concluded that there were themes and issues pointing towards and irretrievable breakdown in the relationship between Claimant and Respondent (p547). They can be summarised as:a. A resistance to being managed or accepting feedbackb. Failing to follow reasonable instructions or act collaborativelyc. Concerns by the Claimant regarding job security and a conspiracy against her. The Crowe hearing[53]On 24 August 2022, the Claimant was provided with a copy of the Major investigation. On 21 September 2022 (p344), the Claimant was invited to a formal meeting on 29 September 2022 at which the Major investigation would be considered and a decision made about whether the relationship had irretrievably broken down.[54]That hearing was chaired by Ms Crowe who had joined the Respondent only in June 2022. I accept her evidence that she could (and did) approach this task impartially given that she had not had experience of the past issues in this case and did not know the Claimant.[55]It is not disputed by the parties that the 29 September 2022 hearing took place during the Molly Russell inquest. This was a high profile inquest, with a lot of media attention, and it was clearly a busy period for the Claimant.[56]It is clear that the 21 September 2022 invitation letter from the Respondent to the Claimant (p344) set out that:a. “the outcome of this meeting could be that your employment with the Council is terminated.”b. “Your line manager can make arrangements for cover to facilitate your attendance.”c. “If you are unable to attend the hearing, you can also provide written submissions”.[57]However, the Claimant provided no evidence to suggest that, at that relevant time, she had changed her previous stance of not engaging with this whole process. No evidence was provided that she had intended to join the hearing, nor had she requested a postponement in light of the Molly Russell inquest, nor had she sought to provide written submissions.[58]In fact, I find that a critical email in this case is from 23 September 2022 (p346) in which the Claimant says in response to a chaser from HR about whether she will join the 29 September hearing: “I have made my position clear – please pass the outcome and I will take further legal advice”. The Claimant makes it clear again on this date that she does not wish to take part in the process.[59]The Claimant gave evidence that, although she was in receipt of legal advice at this time (and throughout much of the history of her employment), she had a mistaken view that her Employment Tribunal proceedings, that were scheduled for a Preliminary Hearing not long after 29 September 2022, would deal with this matter. I accept that the Claimant might have had some confusion about what impact the Employment Tribunal could have on the Respondent’s internal processes. However, I also find that she was in receipt of legal advice at that relevant time.[60]The transcript of the 29 September 2022 hearing (p2003) took place and lasted over three hours, two of which were spent questioning Mr Major on the contents of his report.[61]There is some evidence (p2019-20 and p2037) to show that Ms Crowe considered alternative line managers and what other current potential vacancies there were for the Claimant. However, she ultimately concluded that, given how many times the Claimant’s relationship has broken down with her line manager, providing a new line manager would be unlikely to solve the problem. The vacancies that existed at that time were also considered to be unsuitable (p2037). Mediation was also considered and rejected as an option by Ms Crowe because that had been tried with the informal meeting between the Claimant, Ms Alderman and HR in January 2022. However, the Claimant had refused to engage in that process too.[62]I accept that Ms Crowe ultimately concluded on the balance of probabilities that the relationship had irretrievably broken down and that the Claimant should be dismissed. The conclusion was based on the Major investigation and could not take account of the Claimant’s evidence because she had failed to engage with the Major investigation or with Ms Crowe’s 29 September 2022 hearing.[63]The Claimant was dismissed by letter dated 14 October 2022 (p2042) which set out fully the process that had been followed, what had happened at the hearing, the alternatives that had been considered and ultimately the conclusion of dismissal. That letter also set out the right of appeal. The Brabazon appeal[64]The Claimant exercised her right of appeal. This was carried out by Ms Brabazon, a Councillor, who chaired an appeal panel hearing on 16 December 2022. I accept Ms Brabazon’s evidence that she approached the appeal process impartially and had not had any prior dealings with the Claimant.[65]The Claimant exercised her right to make written submissions and also to bring a representative with her to that meeting.[66]A critical part of the appeal was that Ms Brabazon did not allow it to be a rehearing but was insistent that it be a “review”. Whilst I accept that the appeal policy (p2000) does use the word “review” it does not go as far as to say that an appeal cannot be a rehearing.[67]Based on that “review” premise, Ms Brabazon did not permit various aspects of the appeal, such as allowing the Coroner to appear as a witness. Ms Brabazon’s view was that witness evidence could and should have been heard at the initial hearing on 29 September 2022.[68]Three grounds of appeal were permitted but all were dismissed. The Claimant’s appeal ground were, in summary:a. that she had been prevented from engaging in the process. This was rejected given the documentary evidence showing how often she had been offered the chance to engage,b. that she would have entered into mediation. This was rejected given the Claimant’s refusal to attend the informal meeting in January 2022, andc. that a change of line manager would have solved the problem. This was rejected because that had been tried before and had failed.[69]Ms Brabazon dismissed the appeal and also noted that the dismissal was ultimately based on an independent report produced by Mr Major who was external to the Respondent.[70]During the course of the hearing, the parties were able to reach some common ground on this matter. It was accepted by the Claimant in her evidence, and by both parties in their closing submissions, that the Claimant:a. was only claiming for the 2020/2021 leave year,b. had a statutory entitlement to 20 days’ leave,c. had an annual leave card (p72) that showed that she had only taken 0.5 day’s leave on 24 June 2020 and again on 29 June 2020 i.e. she had taken 1 day's leave in total in the 2020/2021 leave year.[71]The Working Time (Coronavirus) (Amendment) Regulations 2020 (SI 2020/365) came into force on 26 March 2020 and entitled employees to carry-over leave to another leave year if it had not been reasonably practicable for them to take some or all of the their leave because of Covid. This only applied to an employee’s statutory leave entitlement; not their contractual entitlement.[72]I accept the Claimant’s reliance on an email from her line manager at the time (Mr Hunt) to Mr Grice (Director at the Respondent) (p2105). In that email of 26 February 2021, Mr Hunt states that the Claimant believes she has 28 days’ leave remaining in the 2020/2021 leave year and that he “probably should have talked to her about leave more often that [sic] I have”.[73]The Claimant’s evidence, which I accept, was that the Coroner (and the Claimant) were very busy during the first year of the Covid-19 pandemic and that her line manager had not discussed or agreed leave. I therefore find that it was not reasonably practicable for her to have taken her accrued statutory leave.[74]Although in the evidence of Ms Patchett, a Trade Union agreement was referred to, I was not provided with sufficient evidence on which to make a finding in relation to the Claimant’s contractual position. Nevertheless, I find that her statutory position is that she was entitled to carry forward 20 days, less the one day she had taken = 19 days.[75]I accept the Claimant’s Schedule of Loss figure of £210.07 as her gross daily pay, taking account of regular overtime.
The Law
[76]Section 94 of the ERA confers on employees the right not to be unfairly dismissed. They can enforce that right by complaining to the Tribunal under section 111. The employee must show that they were dismissed by the Respondent under section 95. However in this case, the Respondent admits that they dismissed the Claimant (within section 95(1)(a) of the ERA) on 14 October 2022.[77]Section 98(1) of the ERA provides that on a complaint of unfair dismissal it shall be for the employer to show what the reason for dismissal was and that it was either one of the reasons set out in subsection (2) of section 98 or that it was: “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” (section 98(1)(b).[78]Section 98(4) of the ERA sets out the reasonableness test in relation to dismissals: “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.”[79]The burden of proof is neutral. In applying section 98(4) of the ERA, a Tribunal must not substitute its own view of the matter in place of the employer’s.[80]The Court of Appeal, in HSBC Bank Plc (formerly Midland Bank Plc) v Madden, Foley v Post Office 2000 ICR 1283, CA, held that although a tribunal can substitute its decision for that of the employer, that decision must not be reached by a process of substituting itself for the employer and forming an opinion of what the tribunal would have done had it been the employer.[81]In the leading case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 it was stated that: “it is the function of the [employment tribunal] to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band, the dismissal is fair. If the dismissal falls outside the band it is unfair.”[82]It is important to be aware that the ‘band of reasonable responses’ test applies not just to the decision to dismiss, but also to the procedure through which that decision is reached (J Sainsbury plc v Hitt 2003 ICR 111, CA).[83]The Working Time Regulations 1998 provide for minimum periods of annual leave and for payment to be made in lieu of any leave accrued but not taken in the leave year in which the employment ends.[84]There will be an unauthorised deduction from wages if the employer fails to pay the claimant on termination of employment in lieu of any accrued but untaken leave.[85]The Working Time (Coronavirus) (Amendment) Regulations 2020 are no longer in force. However, they came into force on 26 March 2020 and applied at the relevant time. They inserted the following paragraph into regulation 13 of the Working Time Regulations 1998: “(10) Where in any leave year it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society), the worker shall be entitled to carry forward such untaken leave as provided for in paragraph (11).
Conclusions
[86]Having made the findings of fact as set out above and considered them in the context of the relevant law, I make the following conclusions on the agreed List of Issues.[87]Regarding liability for the unfair dismissal claim, there were essentially just two questions to answer: what was the reason for the dismissal, and was it fair? What was the reason for the dismissal?[88]I have concluded that the reason for dismissal was some other substantial reason, namely an irretrievable breakdown in the relationship between the Claimant and the Respondent. I do not consider that “conduct” or “capability” could be said to be the reason.[89]It was accepted by the Respondent (and in the witness evidence of Ms Crowe) that the Claimant was effective in many aspects of her role and did have good working relationships with some of those with whom she engaged in her work.[90]However, there was a serious problem at the heart of the relationship between employer and employee that manifested itself in a number of ways. I accept the Respondent’s conclusion that the cumulative effect of these issues pointed to a “substantial” reason (i.e. one that is more than minor or trivial) that could justify dismissal.[91]Although there was clearly a breakdown between the Claimant and her last line manager (Ms Alderman), there had been a breakdown between a number of previous line managers. Even if the Claimant believed that each of the line managers had “fallen out with me”, it seems clear to me that there was a fundamental problem in that the Claimant seemed to have serious difficulty accepting being line managed.[92]I have noted in particular the correspondence with Mr Hunt and Ms Alderman where it was clear that the Claimant was not following reasonable management instructions. I have relied on the evidence regarding:a. copying in the Coroner in emails, even when asked not to,b. failing to progress the Civica software project,c. refusing to involve her line manager in health and safety meetings, andd. not assisting in the recruitment of an inquest assistant.[93]It was not that the Claimant could not do these things, but that she was choosing not to; which in my view points to a breakdown in the relationship between employer and employee.[94]These failures to follow reasonable management instructions also sit alongside the previous Long investigation in which the Claimant was required to self-reflect on the tone of her communication. I also consider it relevant that the Claimant herself was acting in a way which suggested that the relationship had broken down (and that trust and confidence had been lost) e.g. by covertly recording her first 1to1 with Ms Alderman.[95]The final aspect that points significantly towards a breakdown in the relationship is the involvement of Mr Craig. It was not disputed that he was legally qualified and acting on the authority of the Claimant. He was sending correspondence on the Claimant’s behalf that was so confrontational in nature that it was absolutely clear that she wanted no part in the Major investigation, nor in the Crowe hearing.[96]The fact that the Claimant had engaged with the Long investigation but would not do so with the Major investigation again very strongly point towards a relationship that was deteriorating rather than improving.[97]It is my conclusion that it was entirely reasonable for the Respondent to conclude that this breakdown was irretrievable and that the relationship had reached new lows that clearly fell within the definition of being a substantial reason to justify dismissal. Was the dismissal fair in all the circumstances?[98]The second issue for me to determine is whether, having found the reason for the dismissal, it was fair in all the circumstances.[99]I should say firstly that I have had regard to the fact that the Respondent is a large public authority with a dedicated HR department. However, I have also taken account of the fact that the three key people involved in the events that led to this dismissal (Mr Major who investigated, Ms Crowe who dismissed and Ms Brabazon who chaired the appeal) were not previously acquainted with the Claimant. Given how fraught the situation was with those directly involved with the Claimant, it is to the Respondent’s credit that it took steps to ensure the employer-employee relationship was viewed with fresh pairs of eyes at each of these key stages. I am satisfied that Mr Major was an external to the Respondent and that (having heard witness evidence from Ms Crowe and Ms Brabazon), all three individuals would have approached their roles with an open mind.[100]It is clear from the leading cases in this area (e.g. HSBC Bank Plc (formerly Midland Bank Plc) v Madden, Foley v Post Office 2000 ICR 1283, CA) that I must not substitute my view of what I would have done in this situation, for that of what the Respondent actually did. What is important is whether the Respondent’s decision to dismiss fell within the band of reasonable responses open to an employer. Given the extremely strained nature of the relationship, and the attempts at repairing it that had failed, I am satisfied that the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted.[101]Furthermore, the band of reasonable responses test applies just as much to the procedure as it does to the decision to dismiss (J Sainsbury plc v Hitt 2003 ICR 111, CA).[102]I am satisfied that the procedure adopted by the Respondent was also within the range of reasonable responses. It was clear to me from the documentary evidence that the Major investigation, the Crowe hearing and the Brabazon appeal were all extremely thorough.[103]I note that the Claimant believes that Ms Clune-Georgiou should have been interviewed as a line manager that would have given positive feedback. That relationship dates back to 2016-2017. Although it may have shed some light on another of the Claimant’s working relationships, it does not have enough contemporary relevance to make any meaningful impact that would have the effect of moving the Respondent’s process outside the range of reasonable responses.[104]I have considered whether the Respondent properly thought about alternatives to dismissal. I am satisfied on the evidence of Ms Crowe and Ms Brabazon that this was considered but that the nature and degree of the relationship breakdown was such that a change of line manager or change of role would be unlikely to rescue the relationship. Again, I accept that that was a reasonable conclusion for the Respondent to draw based on the number of issues that the Claimant had had, as well as the duration over which they had taken place.[105]The Claimant also placed a great deal of weight on Ms Brabazon choosing not to allow a rehearing when the Claimant had not engaged in the Crowe hearing. I accept that the Respondent’s policy is not as definitive as Ms Brabazon made out i.e. it does not go as far as to say ‘an appeal can never be a rehearing’. However, it is within the range of reasonable responses for Ms Brabazon to decide not to have a rehearing given the appeals’ policy states that an appeal will “review the case”. Even if I thought it was the case, it is not for me to substitute my view that Ms Brabazon should have allowed a rehearing. It was only once the Claimant had been dismissed that she sought to properly engage in the process. It was abundantly clear, in particular from the Mr Craig letters, that the Claimant was not planning to engage with the Major investigation. It was open to the Respondent to conclude that the Major investigation (in which an independent investigator was appointed and gave the Claimant several opportunities to present her case) was the Claimant’s chance to have her case fully heard.[106]The Claimant was being advised by legally qualified people throughout the events of this case. It is not the Respondent’s fault if the Claimant was operating under a misplaced notion that an Employment Tribunal would influence/intervene in the Major investigation or the Crowe hearing.[107]I have concluded that the Brabazon appeal satisfied all the requirements I would expect from a Respondent of this size:a. the Claimant was notified or her right to appeal,b. when she appealed, a Councillor was appointed to chair the appeal and had no previous knowledge of the Claimant,c. the Claimant was given the opportunity to provide written submissions,d. a hearing was arranged with sufficient notice and the Claimant was able to bring a representative, ande. the Claimant’s grounds of appeal were considered at that hearing.[108]In conclusion, in my view throughout the whole investigation, hearing, dismissal and appeal process, the Respondent acted fairly and it was reasonable in the circumstances for it to treat the irretrievable breakdown of the relationship as being a sufficiently substantial reason to justify dismissal.[109]Having made the findings of fact above that it was not reasonably practicable for the Claimant to have taken her leave in the 2020/21 leave year, I conclude that she was entitled to carry forward her accrued but untaken statutory leave.[110]The Claimant’s statutory leave entitlement was 20 days and she had taken one day’s leave in the 2020/2021 leave year. The Claimant has therefore lost 19 days’ annual leave which she had accrued and should have been permitted to carry forward.[111]The Respondent made an unauthorised deduction of 19 days’ holiday pay. The Claimant’s gross daily pay, taking account of regular overtime, was £210.07. £210.07 x 19 = £3,991.33.[112]The Respondent is ordered to pay the Claimant £3,991.33 being the gross sum unlawfully deducted and on which the Claimant will need to account for tax and national insurance.