Mrs D Schwartzel v XPO Supply Chain UK Ltd: 3300387/2019

EMPLOYMENT TRIBUNALS

Case No 3300387/2019

Between

Mrs D SchwartzelClaimant

XPO Supply Chain UK LtdRespondent

Before

Employment Judge M Warren

Date 6 March 2020

JUDGMENT

[1]The claimant’s claims that she was unfairly dismissed and for unpaid wages fail and are dismissed.

REASONS

[1]By a claim form dated 10 January 2019, Mrs Schwartzel brought claims of unfair dismissal, age discrimination and unlawful deduction from wages. At the time the proceedings were issued, Mrs Schwartzel was still employed, (her complaint of unfair dismissal related to a dismissal in 2015, which had been rescinded on appeal). Mrs Schwartzel was subsequently dismissed, allegedly because of long term absence from work, on 20 June 2019.

[2]At a preliminary hearing before Employment Judge Foxwell on 27 September 2019, leave was granted to amend the current claim to include a claim for unfair dismissal based upon her dismissal in June 2019.

[3]At the preliminary hearing before EJ Foxwell, Mrs Schwartzel withdrew her complaint of age discrimination. EJ Foxwell gave judgment dismissing the claim of age discrimination upon withdrawal, dated 27 September 2019.

[4]EJ Foxwell also ruled that there was no claim for disability discrimination or victimisation before the Tribunal.

The issues

[5]At the preliminary hearing on 27 September 2019, EJ Foxwell identified the issues in this case as follows:(i) What was the reason for the Claimant’s dismissal? The Respondent asserts ill-health capability, a potentially fair reason. The burden of proving the reason is on the Respondent.

(ii) If the Respondent establishes that the reason for dismissal was ill-health capability, was it fair to dismiss for that reason having regard to the test of fairness in section 98(4) of the Employment Rights Act 1996? Relevant considerations will be:

a. Was there sufficient investigation of any relevant medical condition?

b. Was there adequate consultation?

c. Was the decision to dismiss within the range of reasonable responses of an employer? The Tribunal cannot simply substitute its judgment of what ought to have been done for that of the employer provided its decision falls within this range.

(iii) If the Claimant was unfairly dismissed, was she likely to have been fairly dismissed in any event and, if so, when and on what ground?

(iv) Did the Claimant contribute to her dismissal by her conduct?

(v) If the Claimant was unfairly dismissed, what are her losses?

(vi) Has the Claimant mitigated her loss? The burden of proving a failure to mitigate lies on the Respondent.

(vii) The application of the statutory cap on compensation for unfair dismissal if the Claimant’s losses exceed this amount. Unauthorised deduction from wages

(viii) What wages were properly payable in the period from September 2017 when the Claimant began working on a new shift pattern?

(ix) What wages did the Claimant receive from September 2017 and, having regard to this, has there been an under- or over-payment of wages?

(x) Has the claim been presented within the statutory time limit? If not, are there grounds for extending time? Evidence

[6]EJ Foxwell ordered preparation of the bundle by the respondent, a copy to be provided by 12 December 2019. Witness statements were to be exchanged on 16 January 2020.

[7]On 31 October 2019, Mrs Schwartzel sent an email to the Tribunal seeking a postponement of the case due to, “emotional and mental treatment and not coping at the moment”. There was the sadly usual delay between that correspondence being referred to an Employment Judge and subsequently, in the Employment Judge’s instructions being carried out. However, by letter dated 20 December 2019 the Tribunal wrote to the parties expressing EJ Foxwell’s request that Mrs Schwartzel provide medical evidence by 27 December 2019.

[8]Correspondence received by the Tribunal during January 2020 indicated that there were difficulties in provision of the bundle to Mrs Schwartzel and the exchange of witness statements. Mrs Schwartzel had refused to take possession of the bundle on the basis that it has been produced out of time. Although she was served with the respondent’s witness statements on 16 January 2020, she has not herself sent a witness statement to the respondent.

[9]The respondent provided copies of the bundle for today. Initially, Mrs Schwartzel refused to take possession of it or to be referred to it in any way, on the ground that it was out of time. When I explained that it would be helpful to me if I was sure that everybody in the room was looking at the same document at any one time, she agreed to use the bundle.

[10]Mrs Schwartzel brought a collection of her own documents that she wished to refer to during the hearing. I allowed her to do so and when she did so, with Ms Ferber’s help, we were able to identify where those documents were in the bundle. One such document which was not already in the bundle is that which we added at page 390A; it appears to be a page from Mrs Schwartzel’s medical records dated 25/6/2019.

[11]The bundle which I had before me from the respondent was properly paginated and indexed, running to page 518.

[12]I arranged for the clerks to photocopy Mrs Schwartzel’s documents so that we all had a copy.

[13]From the respondent I had witness statements from Assistant General Manager Mr Philips Smith and Finance and Administration Manager Mrs Julie Munday.

[14]Mrs Schwartzel produced a 10-page typed document which she said she intended to read out to me as her evidence. I arranged for the clerks to take photocopies of that document so that copies could be provided to Ms Ferber during a break. During that same break, I read the document, so that Mrs Schwartzel would not have to read it out aloud. I also read the witness statements of Mrs Munday and Mr Smith.

[15]I heard oral evidence from Mrs Schwartzel, Mr Smith and Mrs Munday.

[16]Mrs Schwartzel also produced a further document to me entitled “Addressing ET1 claim – 10 January 2019”. I read and had in mind the further information which Mrs Schwartzel set out therein.

The Law

[17]The right not to be unfairly dismissed is contained in Section 94 of the Employment Rights Act 1996, (ERA).

[18]Section 98(1) and (2) of the ERA set out five potentially fair reasons for dismissal, which include the capability or qualifications of the employee for performing work of the kind which she was employed to do and some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

[19]If the employer is able to show the reason for dismissal was one of the potentially fair reasons set out in Section 98(1) and (2), the Tribunal must then go on to apply the test of fairness set out at Section 98(4) which reads as follows: “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.”

[20]In applying the test of fairness set out in s98(4) the tribunal must not substitute its decision as to what was the right course to adopt and in considering the reasonableness of the employer’s conduct, there will usually be a band of reasonable responses the reasonable employer could adopt and it is to that, one should have regard; a decision inside that band is fair, a decision outside that band is unfair, (Iceland Frozen Foods Limited v Jones

[1983] IRLR 439

[21]The basic tenets for a fair dismissal based upon an employee’s lack of ability are that there has to be a genuine belief in the individual’s lack of ability, based upon reasonable grounds, (Taylor v Alidair Ltd

1978 IRLR 82

CA) and the employee must have been given fair warning and an opportunity to improve, (Polkey v A E Dayton Services Ltd

1987 IRLR 503

HL).

[22]In the case of McAdie v Royal Bank of Scotland

[2007] IRLR 895

the Court of Appeal suggested that where an employee may be dismissed for ill health and the employer was responsible for the employee’s incapacity, it may be relevant when applying the Section 98(4) test of fairness to expect the employer to, “go the extra mile” before taking the decision to dismiss but that does not amount to precluding the employer from forever, effecting a fair dismissal.

[23]Where an employee is dismissed by reason of lack of capability occasioned by ill health, the question must be, when looking at the fairness of the dismissal, whether in all the circumstances the employer can be expected to wait any longer, and if so how much longer? One should take into account the nature of the illness, the likely length of continuing absence and the need of the employer to have done the work which the employee was engaged to do, see Spencer v Paragon Wallpapers Ltd

[1976] IRLR 373

[24]Furthermore, before a dismissal for ill health is effected, one would expect to see consultation and discussion, steps taken to discover the true medical position, see East Lindsey District Council v Daubney

[1977] IRLR 181

[25]One would also expect to see consideration given to whether there are options other than dismissal open to the employer and whether there is some other employment that could be provided that is within the capabilities of the employer.

[26]Tribunals are enjoined to have regard to any relevant ACAS Code of Practice in considering a claim of unfair dismissal. The only potentially relevant code of practice is that on disciplinary and grievance procedures of 2009, which has no application to cases of dismissal on the grounds of long term ill-health as its focus is on misconduct. However, ACAS have also issued a guide entitled “Discipline and Grievances at Work (2009) which, notwithstanding its title, contains an Appendix on, “Dealing with Absence. Under the heading, “How should longer-term absence through ill health be handled?” it includes the following: “Where absence is due to medically certificated illness, the issue becomes one of capability rather than conduct. Employers need to take a more sympathetic and considerate approach, particularly if the employee is disabled and where reasonable adjustments at the workplace might enable them to return to work. There are certain steps an employer should take when considering the problem of long-term absence:• employee and employer should keep in regular contact with each other

• the employee must be kept fully informed if there is any risk to employment

• if the employer wishes to contact the employee's doctor, he or she must notify the employee in writing that they intend to make such an application and they must secure the employee's consent in writing (Access to Medical Reports Act 1988). … …

• on the basis of the GP's report the employer should consider whether alternative work is available

• the employer is not expected to create a special job for the employee concerned, nor to be a medical expert, but to take action on the basis of the medical evidence

• where there is a reasonable doubt about the nature of the illness or injury, the employee should be asked if he or she would agree to be examined by a doctor to be appointed by the organisation

• where an employee refuses to cooperate in providing medical evidence, or to undergo an independent medical examination, the employee should be told in writing that a decision will be taken on the basis of the information available and that it could result in dismissal …

• where the employee's job can no longer be held open, and no suitable alternative work is available, the employee should be informed of the likelihood of dismissal

• where dismissal action is taken the employee should be given the period of notice to which he or she is entitled by statute or contract and informed of any right of appeal. Unauthorised deduction from wages

[27]Section 13 of the ERA prohibits a deduction from wages that has not, in short, been authorised in writing. Section 23 requires that a claim to an employment tribunal in respect of such a deduction must be brought within 3 months of the last occasion when such deduction was made.

Findings of Fact

[28]XPO provides warehousing and supply chain services. It is an international group of companies with many employees and significant resources.

[29]Mrs Schwartzel began employment with the respondent on 26 July 2015. Her letter of appointment is at page 165. The terms and conditions of appointment set out therein make it clear that her obligations may vary and that the company reserves the right to change her shifts, shift patterns and shift periods in accordance with operational requirements and upon providing one weeks’ notice, (page 166).

[30]As to remuneration, the contract provides at clause 5, (page 167) that she will be paid £9.56 per hour, her basic salary to be reviewed on an annual basis as part of collective or national agreements.

[31]Clause 21 at page 173 provides that changes may be made to the contract. Significant changes will be subject to one months’ notice and will be deemed to have been accepted, unless the individual notifies the respondent of any objection in writing before the expiry of that notice period.

[32]The respondent has approximately 38 different shift patterns for its warehouse operatives, paid at different hourly rates reflective of the perceived inconvenience and in accordance with agreements reached with the Unions on an annual basis.

[33]Mrs Schwartzel was initially employed on a shift pattern of Sunday to Thursday, rotating alternative weeks 06:00-14:00 and 14:00-22:00. Over the years, her hourly rate of pay working that shift rose from £9.56 to £9.94.

[34]In September 2015, Mrs Schwartzel was suspended pending an investigation into allegations of gross misconduct in the form of alleged rudeness, insulting behaviour and bad language, (this information was provided in Mrs Schwartzel’s witness statement). Whilst suspended, she received news that her mother was seriously ill. She returned home to South Africa but sadly, did not arrive in time; her mother had died whilst she was in-flight. On subsequently returning to work on 17 November 2015, she was subjected to disciplinary action for having been absent without leave. She had been granted compassionate leave and holiday for some of her period of absence, but not all of it. She was dismissed as a consequence. She appealed her dismissal successfully and was re-instated on 15 December 2015.

[35]Mrs Schwartzel was absent from work because of an operation on her foot followed by complications in recovery, between 29 September 2016 and 4 September 2017. A return to work meeting to discuss a phased return to work took place between Mr Smith and Mrs Schwartzel on 1 September 2017. Notes of this discussion taken by an HR Adviser, Miss Jill Dolan, are in the bundle starting at page 183. Although Mrs Schwartzel has challenged the accuracy of these notes, I accept the evidence of Mr Smith that they are accurate as to the gist of what was said. The notes record that Mr Smith explored with Mrs Schwartzel whether she would like to return to work on her original shift or whether she would like to return on what is called a fixed shift, which would be 14:00-22:00 Sunday to Thursday each week, with a phased return on reduced hours for the first 4 weeks. Mrs Schwartzel is recorded as responding to the proposal, “perfect”. It is fair to say that the minute does not record any discussion about the hourly rate. The proposed hours were confirmed in a letter from Mr Smith dated 1 September 2017, which is at page 187. The letter expressly states that the hourly rate would be £9.05 with a weekly unsociable allowance of £21.40. The letter states that a duplicate is enclosed, which Mrs Schwartzel is invited to sign and return to indicate that she has read, understood and accepted its contents. The duplicate of the letter is at page 188, it bears at the foot of the page, written acceptance of the changes set out in the letter, signed by Mrs Schwartzel and dated 19/9/17. Mrs Schwartzel acknowledges that the signature is hers, the handwriting is hers both in the printing of her name and in respect of the date. However, she says that she has no recollection of signing this copy letter and asserts that it was provided to her, bearing her signature, at a later date when she denied ever giving agreement to the change in the hourly rate. She asserts that somebody, probably Miss Jill Dolan, has cut and pasted her signature onto the copy letter. Unaware of this allegation hitherto, the respondent does not have the original with it in Tribunal. It seems to me inherently unlikely that somebody has successfully cut and pasted in not only a signature and printed name, but also a very specific handwritten date, onto the copy letter in this way. I conclude on the balance of probabilities that Mrs Schwartzel did sign her agreement to the new shift and the new rate of pay on 19 September 2017.

[36]Mrs Schwartzel was thereafter paid at the hourly rate in accordance with that agreement. She raised no protest in that regard, not until September 2018 at a time when she was moved from the respondent’s site in Milton Keynes to a new location at Marston Gate, in September 2018.

[37]In a grievance meeting on 10 October 2018, the notes of which start at page 197, Mrs Schwartzel is recorded as acknowledging she had noticed the difference in hourly rate at the time that it was implemented. She had queried it with HR who had told her that it was because she was no longer on alternating shifts. She acknowledged that she had put up with it, but then decided to query the change, prompted by the move of herself and her colleagues to the Marston Gate warehouse, which was in September 2018. Mr Smith confirmed that Mrs Schwartzel had not queried the hourly rate with him until mid-September 2018.

[38]An outcome to the grievance is provided on 15 October 2018, (page 203). The grievance was not upheld because Mrs Schwartzel had agreed to move onto the new shift pattern on 1 September 2017 and had signed to agree both the shift pattern and the hourly rate on 19 September 2017. Although she appealed the outcome, the decision not to uphold her grievance was affirmed in a letter dated 20 December 2018, (page 252). Mrs Schwartzel had argued that she missed out on the increased hourly rates of pay she had earned each year from 2015. The appeal grievance outcome clearly spells out that the fixed shift she was working had each year, benefitted from increased hourly rates, just as had the rotating weekly shift she previously worked on.

[39]In the meantime, Mrs Schwartzel commenced a period of absence from work due to stress on 15 October 2018. Her company sick pay came to an end on 15 November 2018. Thereafter, she received statutory sick pay. At a return to work interview on 31 December 2018, (page 257) Mrs Schwartzel is recorded as having said that her absence was because of, “Work related stress from previous employment”.

[40]On 3 January 2019, Mrs Schwartzel emailed the respondent to say that she would not be attending work due to the stress that she has suffered upon returning to work and that she had a migraine. The email contained allegations of being victimised and punished. She also complained about her hourly rate.

[41]On 5 February 2019, somebody contacted Mrs Schwartzel from the respondent to suggest a referral to occupational health. She declined that suggestion, writing in an email of that date, “I will no longer have anything to do with XPO occupational health. I have been through the farce of this before with my foot.”.

[42]Mrs Schwartzel’s earlier complaint about victimisation had been investigated as a grievance. An outcome was provided on 28 February 2019, (page 307). The grievance was not upheld. She did not appeal the outcome.

[43]On 4 April 2019, the respondent wrote to Mrs Schwartzel, who continued to be away from work ill, (page 343). By this time Mrs Schwartzel had been absent from work for a period of 19 weeks and had declined to attend a welfare meeting or a referral to occupational health. The respondent asked her to reconsider both or failing that, to give them permission to obtain a report from her doctor. The letter warned: “Please note that should you refuse to meet with us and/or allow us to obtain the necessary medical advice to enable us to understand how we can support you, we can only manage your absence based on the information we have. Therefore any future decisions would need to be based on the information available.”

[44]These proceedings had already been issued, on 10 January 2019. Mrs Schwartzel’s emailed response on 16 April 2019, (page 346) was to refer to the respondent’s “fabrication and twisted words”, to its, “toxic culture” and to the Tribunal case. She asked the respondent to refrain from further harassment, which was adding to her PTSD. She described the respondent’s conduct as an insult to her and to her mother.

[45]The respondent wrote again on 1 May 2019, (page 355). They invited Mrs Schwartzel to attend a welfare meeting or in the alternative, that she give her consent to a referral to occupational health, or to their contacting her doctor direct for a report. The letter gave the same warning as that of 4 April, quoted above.

[46]Mrs Schwartzel did not respond.

[47]On 29 May 2019, the respondent wrote by email to Mrs Schwartzel to explain that her latest GP fit note had expired and on it, the GP had written that after 27 May 2019, she would be fit to work and no further assessment would be required. They asked her that, if she did not feel fit to return to work, she visit her GP for a re-assessment and provide an appropriate medical certificate. Mrs Schwartzel replied writing four times, “READ THE NOTE” and, “ITS IN ENGLISH”. A sequence of email correspondence followed in which the respondent tried to explain to Mrs Schwartzel the need for a further medical certificate from her GP and on each occasion receiving emails of a similar vein. On one of them she wrote, “HE HAS NOW HAD ALL HIS ASSESSMENT AND MEDICAL FROM THE COUNCELLING TO HAVE NOW INFORMED WORK THAT I AM NO LONGER FIT FOR WORK AND EXACTELY WHAT MORE DO YOU WANT”.

[48]On 30 May 2019, the respondent wrote to invite Mrs Schwartzel, in light of her failure to respond to the two previous letters, to attend a capability meeting on 4 June 2019, (page 365). The letter reminded her if she refused to meet or allow them to obtain the necessary medical advice to enable them to understand her position, they would have to act on the information available.

[49]Mrs Schwartzel did not attend the proposed meeting on 4 June. She did not reply to the invitation letter and did not provide an explanation.

[50]The respondent wrote again, including a second invitation to a capability meeting, this time to take place on 17 June 2019, (page 378). This letter again reminded Mrs Schwartzel that if she refused to meet or allow the respondent to obtain medical advice, they would have to act on the information available. The letter also stated that her employment may be at risk because if she failed to attend the meeting, a decision would be made in her absence and her continued employment may be under threat as a result. In the correspondence, Mrs Schwartzel made the following remarks: “XPO Logistics are fully aware that I am no longer fit to return to work otherwise this would be the case. … I am still under treatment and do not need a company medical assessment of which they disregard (will no longer be traumatised further with my condition by XPO Logistics) [sic]. …”

[51]Mrs Schwartzel provided the respondent with a copy of a letter from NHS Central and North West London NHS Foundation Trust, Milton Keynes IAPT, (Improving Access to Psychological Therapies) stating that she had been discharged from IAPT and that it has been recommended, in light of her current difficulties, that she may find the MK Bereavement Services of benefit.

[52]Mrs Schwartzel did not attend the meeting on 17 June, which was chaired by Mrs Monday. Mrs Monday decided that Mrs Schwartzel should be dismissed. She set out her reasoning in a letter dated 20 June 2019, which is in the bundle at pages 387-390. The reasoning included the following:52.1 Mrs Schwartzel had twice been invited to attend capability meetings and had failed to attend;

52.2 She had been warned that if she did not attend a decision would be made on the basis of the information available that might include dismissal;

52.3 From Mrs Schwartzel’s email correspondence, it was apparent that she considered herself unfit to return to work on a long-term basis;

52.4 Three requests had been made, (prior to the invitation to the capability meetings) for Mrs Schwartzel to co-operate either in a referral to occupational health or a doctor’s report. She had failed to respond;

52.5 She had also failed to respond to requests in the same correspondence that she meet with the respondent;

52.6 A letter provided dated 12 February 2019 from Milton Keynes IAPT confirmed that she had been discharged;

52.7 Her fit note had expired, her ongoing absence was therefore unauthorised;

52.8 The respondent had no information on which to assess her current ability to work;

52.9 That it is reasonable to conclude Mrs Schwartzel will not be returning to work and that she is not capable or available to fulfill the requirements of her role, and in conclusion

52.10 Mrs Schwartzel’s lack of co-operation amounted to a breach of the implied term to maintain mutual trust and confidence. Conclusions Unlawful deduction from wages

Conclusions

[53]Mrs Schwartzel explained to me that her case is that the pre-absence hourly rate of £9.94 represented accumulated pay rises over the years, from 2015 when she started, through to September 2017. She says that she should have been allowed to return to work on that hourly rate and not the reduced rate of £9.05, (plus the £21.40 weekly unsocial allowance) even if she was working on a different shift pattern. She answered the respondent’s point that there were different rates of pay for different shift patterns, by saying that prior to her period of absence, she had worked on all sorts of different shifts, (which is why there had been confusion over her shifts when she had gone to South Africa to tend to her mother in November 2015 as to whether or not her absence had been authorised).

[54]It seems to me that there is some merit in that, insofar as it goes. As Ms Ferber fairly pointed out, the contract of employment stipulates an hourly rate of £9.56 to be reviewed annually. It makes no mention of the hourly rate depending upon shift patterns.

[55]That said however, the contract also provides for variation by agreement. Clearly upon her return to work, Mrs Schwartzel agreed to a different shift pattern on a regular basis, in writing agreed to the reduced hourly rate and even if there had been any doubt about that, had affirmed the variation to her contractual hourly rate, by continuing to work without protest untill September 2018.

[56]I therefore find that Mrs Schwartzel was paid in accordance with her contract of employment, as varied by agreement. The claim for unlawful deduction of wages fails.

[57]The list of issues mentions time as being an issue. If there had been an unlawful deduction, Mrs Schwartzel began her last period of absence on 18 October 2018. She returned for a few days in December 2018. The last wage payment from which the, “deduction” was made was therefore at the end of December 2018 or early January 2019. Proceedings were issued in January 2019 and the claim was therefore made in time.

[58]Mrs Monday genuinely believed that Mrs Schwartzel was incapable of continuing in her employment by reason of her ill-health. She had reasonable grounds for holding that belief based upon a combination of the Doctors fit notes and Mrs Schwartzel’s correspondence.

[59]Mrs Schwartzel was not given warning that if she was unable to return to work she might be dismissed. This is because of the way things unfolded, with Mrs Schwartzel failing to co-operate by not providing Doctors fit notes when the existing one had expired, refusing to attend welfare meetings, refusing to co-operate with the respondent obtaining medical information, refusing to attend capability meetings notwithstanding a warning that her continued failure to do so may result in her dismissal.

[60]The respondent had no information on how long Mrs Schwartzel’s already lengthy period of absence might come to an end.

[61]There could be no consideration of other alternative employment in circumstances where Mrs Schwartzel was simply refusing to co-operate with the respondent.

[62]Although in her correspondence, Mrs Schwartzel made allegations that her ill-health was due to stress caused by the respondent, there is no evidence other than Mrs Schwartzel’s assertion, that is the case. It seems to be highly likely that the sad death of her mother may have something to do with Mrs Schwartzel’s ill-health, evidenced by the Milton Keynes IAPT letter recommending that she seek support from the Bereavement Support Service.

[63]Although the letter of dismissal makes reference at one point to breach of mutual trust and confidence, I am satisfied on hearing evidence from Mrs Monday that the reason for dismissal was Mrs Schwartzel’s lack of capability by reason of her ill-health in light of her 9 months absence, there being no apparent prospect of her being fit to return to work, her refusal to co-operate in communicating, to attend meetings and to allow the respondent to obtain medical information.

[64]In these circumstances, the respondent’s decision to dismiss lay within the range of reasonable responses and the claimant’s claim for unfair dismissal must fail.