Mrs Averil Mohammed v Home Group Ltd: 3304786/2018
EMPLOYMENT TRIBUNALS
Case No 3304786/2018
Between
Mrs Averil MohammedClaimantHome Group LtdRespondent
Before
Employment Judge BedeauMs E Grace - Counsel for claimantDate 11 June 2019
JUDGMENT
[1]The claim of direct age discrimination is not well-founded and is dismissed.[2]The claim of harassment related to age is not well-founded and is dismissed.[3]The claim of constructive unfair dismissal is not well-founded and is dismissed.[4]The respondent had not breached the claimant’s contract if employment.[5]The provisional remedy hearing listed on Tuesday 2 July 2019, is hereby vacated.
REASONS
[1]By a claim form presented to the Tribunal on 16 March 2018, the claimant made claims of constructive unfair dismissal, age discrimination and notice pay notice. In the response presented to the Tribunal on 4 May 2018, the claims are denied.[2]At the preliminary hearing held on 4 July 2018, Employment Judge McNeill QC, clarified the claims and issues and are set out below.
The issues
[3]Constructive unfair dismissal3.1 Was the respondent in repudiatory breach of the claimant’s contract of employment? The claimant relies upon the matters set out in a Scott Schedule as amounting to particulars of the repudiatory breach. The “last straw” relied on is inviting her to a stage 2 absence management meeting while ignoring her attempts to return to work for a period of two months.3.2 Did she resign in response to the respondent’s repudiatory breach of contract?3.3 Did she waive the breach?3.4 If the respondent was in repudiatory breach of contract, it is not contended that there was a potentially fair reason for dismissal.3.5 The claimant claims compensation for dismissal.[4]Breach of contract (notice pay) 4.1 If the claimant was constructively dismissed by the respondent, the respondent accepts that she was entitled to notice pay. The parties have, not at this stage, agreed how much notice the claimant was entitled to or the figure to which she is entitled by way of damages, if she makes out her claim for breach of contract.[5]Direct age discrimination5.1 Does the claimant make out all or any of the allegations of less favourable treatment set out in the Scott Schedule which she is providing?5.2 If she does, was she in all or any of those respects treated less favourably than an actual or hypothetical comparator?5.3 For the avoidance of doubt, the claimant, who was born on the 15 June 1953, relies on younger comparators.5.4 Is the claimant’s claim brought outside the relevant time limit under section 123(1)a Equality Act 2010? If so, was the claim presented in such other period as the Tribunal thinks just and equitable?5.5 Does the claimant make out any treatment which amounts to less favourable treatment within the meaning of section 13 Equality Act 2010?5.6 If so, was the claimant subjected to this less favourable treatment because of her age and if so, could it be justified?[6]Section 26: Harassment6.1 Did all or any of the conduct which the claimant alleges amount to unwanted conduct, if made out?6.2 If so, was this conduct related to her age under section 26 Equality Act 2010?6.3 Did this conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating hostile, degrading, humiliating or offensive environment for the claimant?6.4 Is the claimant’s claim brought outside the relevant time limit under section 123(1)a of the Equality Act 2010?6.5 If so, was the claim presented in such other period as the Tribunal thinks just and equitable?[7]Failure to provide particulars of employment 7.1 Did the respondent fail to provide the claimant with a statement or particulars of her employment in accordance with section 1 Employment Rights Act 1996?[8]At the outset of the hearing counsel on behalf of the claimant withdrew the claim of failure to provide written employment particulars, Section 1 Employment Rights Act 1996. Accordingly, the Tribunal dismissed that claim upon withdrawal.[9]Remedies 9.1 If the claimant succeeds, in whole or in part, the Tribunal will consider whether it should make any recommendations. The Tribunal will further consider the appropriate level of compensation for the claimant’s loss of earnings, injury to feelings and any interest thereon.
The evidence
[10]The Tribunal heard evidence from the claimant who called Ms Dina Mohammed, her daughter.[11]On behalf of the respondent evidence was given by: Ms Carol Leader, Senior Client Service Manager; Ms Dallas Frost, Business contract Manager; and Ms Julie Coffey, Policy Manager.[12]In addition to the oral evidence the parties adduced two bundles of documents comprising, in total, of 789 pages. References will be made to the documents as numbered in the joint bundle.
Findings of fact
[13]The respondent is a registered social landlord providing social housing, supported housing and related services nationally.[14]The claimant commenced employment on 22 January 2001 and was based in Barnet, north west London, as scheme manager, providing care and support services to the residents who lied there. In or around May 2009, she moved to the respondent’s Applegrove address, Kilda Road, Houghton Regis, Luton.[15]Applegrove is an extra care sheltered housing scheme run by the respondent providing support and accommodation for vulnerable older adults.[16]In 2014, the respondent reorganised its business and the role of Scheme Manager became redundant and was replaced with the newly created post of Housing Manager Co-ordinator “HMC”. The claimant applied for that role at Applegrove, in late 2014, and was successful. As part of the reorganisation, working with the older people merged with care and support.[17]The claimant had responsibility for 63 residents at Applegrove who lived in self-contained flats.[18]We find that the HMC role included more reporting requirements which meant that the claimant had to spend more time at her desk as there was a lot more accountability and deadlines around health and safety, rents, maintenance and voids, as well as ensuring that local procedures were in place. This impacted on the time she spent during the day on such things like arranging events and talking to the residents which were part of her previous role as Scheme Manager.[19]Ms Carol Leader was employed by the respondent since 2004, initially as a Project Worker and from 2006, as Service Manager. She had worked with many different groups including young people, host families, ex-offenders, mental health, general needs and floating support. In 2014, she successfully applied for the new post following reorganisation, of Senior Client Service Manager and was in place in June 2014. She had previously worked for Stonham, the care and support section of Home Group but in a different called Home Prime Services. When she successfully applied for the Senior Client Service Manager role, Mr Ian Hartley-Dade, her line manager, tasked her with bringing the Older Peoples Services in line with care and support policies procedures. Mr Hartley-Dade decided that they needed to restructure the staff to bring them in line with Home Group’s job descriptions and to mirror the organisational structure in the rest of the North region. Ms Leader helped to implement the restructure including part of the interview process for the post of the HMC and interviewed the claimant.[20]The claimant was born on 15 June 1953 and was 61 years of age when she took up the HMC post.[21]She provided a Scott schedule which included the respondent’s responses and the acts relied upon by her. She stated that matters referred to in the Scott schedule from 2014 to 2016, is background evidence but not the allegation in 2016, that when she retires she could open a coffee shop for the residents.[22]She worked with carers who are employed by the local authority. She said that 7 would attend in the morning, 3 at lunchtime, 2 late afternoon and 2 in the evening.[23]The respondent has a grievance policy which states that employees should seek to resolve their grievance informally by raising it with their line manager. The employee and his or her line manager, should consider whether mediation is appropriate to resolve the grievance. The grievance should normally be raised within 30 days of the most recent occurrence. Where it cannot be resolved informally, a formal grievance notification form is required to be completed and sent to their line manager. Either the line manager or another independent manager, where it is inappropriate for the line manager to hold a meeting, would conduct a formal grievance investigation meeting with the employee. The outcome should be communicated to the employee in writing.[24]If the grievance concerns another employee and the outcome is that there is a potential disciplinary case to answer, the case will progress though the disciplinary procedure. The employee can appeal if dissatisfied with the grievance outcome. (434A-434E)[25]In April 2016, Ms Kayley Quinn, commenced employment as an apprentice assisting, in part, the claimant.[26]On 7 January 2016, the claimant’s daughter, Ms Dina Mohammed, messaged the claimant to inform her that she could claim her state pension from the age of 63 years. (535)[27]The claimant alleged that once it became known to Ms Leader she could get her state pension at 63, she, Ms Leader, regularly discussed the claimant’s retirement. The claimant further alleged Ms Leader had put pressure on her to retire. She further alleged that Ms Leader would raise the issue of her retirement on a daily basis. This was denied by Ms Leader who said in evidence that retirement would be discussed but only if the claimant had initiated it in discussions. Although the claimant asserted that she was pressured by Ms Leader to retire, she had made no complaint about it. She said, in cross-examination, Ms Leader had said to her that any complaints would end up on her desk hence her reluctance to complain. She said Ms Leader had a close relationship with the managers.[28]Having considered the evidence and having observed the claimant in evidence, we find as fact that she had during her employment with the respondent, what could be described as a forceful and assertive personality. She was not afraid to raise any concerns with her managers. Had Ms Leader instigated discussions about the claimant’s retirement, we find that the claimant would have raised her concerns with Ms Leader, if not resolved, with her line manager. We, therefore, do not accept that such discussions were initiated by Ms Leader.[29]With regard to the grievance process, as the claimant’s concerns were to do with Ms Leader behaviour towards her in relation to discussing retirement, a grievance from her would not have been dealt with by Ms Leader but by someone who was independent. When the claimant asserted that Ms Leader said at all complaints would land on her desk, we do not accept that it was with reference to her grievance but to complaints raised by the residents.[30]There was a discussion between the claimant and Ms Leader about opening up an organic café because the claimant made soup with fresh vegetables at Applegrove. The discussion concluded by saying the claimant saying that she was not due to retire. We find, contrary to the claimant’s assertion, that they did not discuss her retirement on a daily basis.[31]In the claimant’s annual review for 2015/2016, Ms Leader gave her a rating of 2. The highest being a rating of 1. Resident M[32]A resident by the name of M was referred to the respondent from another service and was accepted by the claimant through the application process. M was a recovering alcoholic who started drinking heavily soon after his move to Applegrove. His behaviour had become erratic and was verbally aggressive at times, particularly after drinking. He was classified as a vulnerable tenant meaning that the respondent had to meet certain criteria in its processes before he could be evicted. General tenant issues are dealt with by management on site, but potential eviction queries are referred to the respondent’s legal team for consideration. M had been warned by Ms Leader about his behaviour on 2 and 24 June 2016. (Supplementary bundle 87-90)[33]Either on 8 June 2016, as alleged by the claimant, or on 8 July 2016, as contended by the respondent, an incident occurred involving the claimant and M. She said in evidence that she was on her day off when she called to check on Ms Quinn, the apprentice, to see if she was coping with M. She found Ms Quinn upset and stressed as M had been aggressive towards her and had threatened her with a spade while swearing at her. She reported the incident to Ms Leader whose alleged response was “That is what alcoholics do” and given that M was a vulnerable person there was little that could be done.[34]In her oral evidence before this Tribunal the claimant said that the spade was also thrown at her by M and she did not get any support from her manager.[35]In the claimant’s grievance lodged on the 26 May 2017, she said that she felt that M was going to hit her with the spade and braced herself thinking “This is going to hurt”. (252[36]During the grievance meeting with Julie Coffey, on 17 July 2017, the claimant said that M had thrown the spade down “barely missing me”.[37]We find that these accounts by the claimant as to what M did or not, are inconsistent and we do not accept her account that having reported the matter to Ms Leader she, Ms Leader, expressed some indifference. We accept Ms Leader’s evidence that she did carry out an investigation and spoke to and obtained a statement from M, as well as the claimant and Ms Quinn. M’s behaviour was considered to be unacceptable as the claimant perceived it to be aggressive. He was issued with the strongest sanction short of eviction, namely a final warning on 11 July 2017, and was required to enter into an Acceptable Behaviour Agreement on the same day. (Supplementary bundle 91, 93-94)[38]At a working group meeting held on 16 November 2016, the claimant is recorded to have said that she had no problem with her line manager but did have issues with the respondent making her reluctant to complete an employee satisfaction survey. If that statement is accurate it would appear that she had concerns only about the respondent and was content with Ms Leader’s management of her. (95A-95C) Complaints about the claimant[39]Complaints about the claimant from the residents were raised during her employment and they were about her assertive and authoritarian attitude towards them. One resident, DC, who suffers from dementia had complained in 2014, about favouritism and the claimant’s temper. In 2015 he complained about favouritism, poor attitude and temper. In April 2016, the claimant wrote that she did not believe him when he told her that his scooter had been interfered with. He took the view that she was accusing him of being a liar and raised a complaint. (70-77, 92-95)[40]The matter was investigated by Ms Leader who expressed confidence in the claimant’s conduct and believed her to be one of the most hardworking and caring managers. (86-87)[41]Another resident, MC, complained to Ms Leader on 24 January 2016, that the claimant breached confidentiality by discussing her medical conditions. MC was interviewed by Ms Leader on 4 January 2017 and said that she was told by residents that the claimant had been discussing her health in the communal lounge and said that MC’s ill health was all a “con” that there was nothing wrong with her and was in the habit of admitting herself to hospital every year. MC also stated that some of the carers gave her the same account. MC had come out of hospital on 24 December 2016 and believed that the conversations the claimant had with the individuals occurred before that date. (96)[42]Ms Leader said in evidence that she had heard a similar rumour at Applegrove but the claimant told her that MC had nothing medically wrong with her and was making everything up because she was lazy and an attention seeker. The complaint was not upheld because none of the residents had come forward to speak unfavourably about the claimant at the time.[43]On 9 February 2017, the claimant received an email from Brooke Parker congratulating her on behalf of Applegrove’s Social Committee, on being awarded the customer and client award 2017. The committee had been awarded special recognition by the panel of Judges for their achievements.[44]The email was forwarded to Ms Leader who wrote: “Wow?? That’s a real surprise, I didn’t realise you managed to get the nomination in time. Well done.”[45]The claimant responded some one minute later stating: “You are surprised. I forgot I even sent it!!!!” (97-98)[46]She had an appraisal with Ms Leader on the 9 November 2016, during which it is recorded under “comments” by Ms Leader the following: “Averil is an extremely hard worker with a great work ethic, unfortunately as hard as she may work there will always be outstanding tasks due to the high number of residents and maintenance issues. CL and DF (Dallas Frost) are looking at the staffing structure with a view to increasing staff at Applegrove to lessen the load on AM. There have been some issues with the H&S control book which have now been rectified.”[47]In the questionnaire, which appears to form part of the appraisal, Ms Leader wrote: “1. First question for main appraiser goes here. The service audits were carried out on 29 October, the H&S control book had a number of items out of date or missing, Averil has been working very hard to get these up to date. Averil has also been updating risk assessments, PEEPS and local procedures. Part of the audit captures observations – SC observed AM raising her voice to a resident, I have discussed this with Averil and she is aware this is unacceptable behaviour from a home colleague. It is also not in line with our values, raised voices do not demonstrate a caring attitude. Despite the above Averil does work extremely hard trying to keep everything up to date and maintaining a very large service. I have discussed this with Dallas Frost along with the overall staffing structure, we agree Applegrove does need additional staffing hours. In addition, our HW care leave is currently covering Christchurch Court so Applegrove has lost further support hours. 6. Second question for main appraiser goes here. Should there be any further incidents of unprofessional behaviour with residents Averil will receive a conversation of concern. CL to look at AM’s current work load and agree which tasks to assign to a new HW to reduce the huge work load of AM.” (239-241)[48]From the dates on the document this does not appear to have been an annual appraisal but more a one-to-one meeting with the claimant. The next scheduled meeting was due to take place on 15 December 2016.[49]We have already made a finding in relation to the claimant’s personality while at work. Evidence was given by Ms Leader of an incident involving the claimant and Sally Parsons, Director and Head of Client Service at Applegrove. Ms Parsons was present in the office which was shared by the claimant and Ms Leader. She was there investigating a complaint from DC against the claimant which was at Stage 3 level. The relationship between the claimant and DC was at a very low point and Ms Parsons was there to inform the claimant of the outcome and actions going forward but according to Ms Leader, which we do find as fact, the claimant started to shout at Ms Parsons, accusing DC of being a liar and the respondent of not caring about how she felt. Ms Leader, in evidence, said that she was shocked by the claimant’s conduct as it was unacceptable the way in which she spoke to Ms Parsons who was trying to resolve an issue with a resident who had complained about the claimant.[50]We also find that the claimant was hard working and committed to her job. She worked long hours and freely gave up her time, occasionally, at weekends and would sometimes come into work on her days off. Chicken and Chips Tuesday[51]It was a regular event on Tuesday lunchtime, to cook chicken and chips for the residents. The local Nandos restaurant would donate the chicken. The claimant would be assisted by the carers in the cooking and preparation.[52]On Tuesday 21 February 2017, she chaired and facilitated a residents’ meeting with approximately 25 to 30 people in attendance. She was the only staff in the meeting. She asked Ms Leader to assist her, but Ms Leader said that she was engaged. By the end of the meeting, Ms Leader and Ms Quinn came in to discuss residents’ ovens and a washing machine. Following the discussion, the claimant prepared food for approximately 30 residents which was chicken and chips. Ms Quinn asked her whether it was permitted for a resident to eat in his or her room. The claimant replied no, and that everyone should eat together. Ms Quinn then pointed out that some residents were allowed to eat in their rooms. At that point the claimant became upset at being challenged and replied, “You’ll do what you want to”.[53]The discussion about the ovens and washing machine continued in the kitchen with the claimant and a resident. Ms Leader, who was present in the kitchen, asked whether it was possible for a resident to have her name on the oven list and whether that resident could have a washing machine as she had burnt her breast while opening her oven door. The claimant replied saying that it was not possible for the resident to have burnt her breast in the way described by Ms Leader as the door to the oven opened horizontally from either left to right or right to left. Ms Leader asked the claimant why the resident could not have a washing machine. According to Ms Leader, a that point, the claimant threw down a cooking implement she had in her hand, stormed out the kitchen and out of the building. The investigation into the claimant’s conduct[54]Immediately after the incident Ms Leader contacted human resources by email after having tried, unsuccessfully, to speak to Mr Ian Soulsby, Human Resources Business Partner. She wrote: “I have left a message on your phone to call me as I have just had a incident with my housing management co-ordinator in Applegrove – Averil Mohammed. Averil walked out of the service about an hour ago, she did this in the residents’ communal kitchen in front of around 20 residents and another colleague. I have explained the situation to Dallas as this is part of an on-going issue with Averil. Averil is 63 and finding all the changes difficult, she has been very tearful in recent months. Averil has said on a number of occasions that she feels I am trying to get her out. She also said that she feels it’s a case of constructive dismissal!!! She has a number of residents who she dislikes and they are quite aware of it and a number who she does like who get preferential treatment. I have been trying very hard to work with her as a professionality can be questionable. This morning’s incident occurred as one of the residents who feels Averil doesn’t like her requested to have her lunch in her room, Averil said that everyone had to come and eat in the lounge together as that was the whole point. Kayley Quinn (HMC) pointed out that if another resident who she liked then he would get his in his room and that it was only because she didn’t like her that she couldn’t have it. Again, I pointed out that we have to remain professional and treat everyone with respect. Averil walked out of the kitchen, returning very quickly in her coat and said she was leaving, she said she was obviously unwell and would be going off on long term sick leave. Averil is due to attend training tomorrow – not sure if I should cancel it?? Also, not sure where to go from here. I said to Dallas I feel that a conversation of concern is the least I should implement. What are your thoughts?” (101)[55]The claimant was off work on sick leave for two days and returned on 24 February 2017.[56]The email sent by Ms Leader to Mr Soulsby, was obtained by the claimant following a subject access request was after she had resigned from her employment. She would not have been aware of the content prior to and at the time of her resignation.[57]When she returned to work on 23 February, she had a return to work interview with Ms Leader. It is recorded that the reason for the claimant’s absence at or around 12:45 in the afternoon of 21 February, was that she must have been “sick”. Ms Leader is recorded to have said to the claimant that as she walked out of the service on the day in question, formal action would be taken. (65-66)[58]Following human resources advice, Ms Leader prepared a list of allegations with regard to the claimant’s conduct. (103-105)[59]In the respondent’s disciplinary policy, under misconduct, it provides for dealing with the matter informally as well as formally. It states the following: “Minor misconduct will be dealt with informally. An informal approach gives the manager the opportunity to set out what is expected and to give the colleague the opportunity to improve (except where the seriousness of the issue means that this would not be appropriate). In these instances, a single ‘Conversation of Concern’ will be held. A Conversation of Concern must be documented and kept on the colleague’s file for a period of 6 months.”[60]In cases where the misconduct is more serious the policy provides there would be an investigation in a timely manner. “The key purpose of an investigation is to discover all the relevant facts and information in a fair, reasonable and objective manner. The investigating manager will notify HR business partner that a decision was made to commence a formal investigation. In cases of serious misconduct, it may be appropriate to suspend a colleague pending disciplinary proceedings. Before suspending a colleague you must seek advice from your HR business partner….. The investigating manager is responsible to carry out an investigation to gather all the relevant facts of the case in a timely manner.” (435-440)[61]In a letter dated 1 March 2017, sent by Mr Jason Tyers, Senior Client Services Manager, to the claimant, the claimant was invited to attend an investigation meeting on 10 March 2017. The purpose was to investigate a number of allegations. He wrote: “Following the allegations listed below you are required to attend an investigation meeting. It is alleged that on 21 February you breached the following standards of Working Professionally: Standard 1, we are committed to promoting and upholding Home Values in our work with customers, clients, colleagues and others. We work professionally to agreed standards in order to uphold and promote these values. Standard 2, we have a clear understanding of our individual job roles and know how to create safe and trusting professional relationships within agreed boundaries. Standard 3, we are aware of and operate within professional boundaries without creating barriers to working with customers and supporting clients effectively. Examples of these breaches are that on 21 February 2017, it is alleged you made inappropriate comments to colleagues and your manager about residents in the presence of other residence. It is alleged that on the 20 February 2017, you reprimanded resident DC, after being instructed by management and the resident not to engage in any contact with DC following a series of complaints and allegations made by DC against you. It is alleged that you have shouted at residents on various occasions, one instance of this behaviour was on 13 February 2017 when you shouted to resident S go back to her room and wait for her to come out. This was witnessed by line manager SCSM – CL and SCSM – SC. This behaviour clearly does not demonstrate the caring or accountable values and breaches the Working Professionally Policy. It is alleged that you show professional treatment to certain residents, one instance of this is the weekly shop you do for GC. This behaviour breaches the Inclusion, Equality and Diversity Policy and the Working Professionally Policy. It is alleged that you treat certain residents with negative vibes, one instance of this was on 20 February 2017 when you appeared to disbelieve a message passed from SCSM – CL that residents S and M both had issues with their ovens. Where you had previously taken down all other resident’s requests without comment you said that there was nothing wrong with their ovens. This behaviour demonstrates lack of the Caring Value and Breaches Working Professionally Policy.”[62]The claimant was advised of her rights to be represented either by a trade union representative or work colleague. (110-111)[63]She told the Tribunal that she was shocked at being the subject of a disciplinary investigation and also by the nature of the allegations.[64]She met with Mr Tyers on 10 March 2017. It is recorded that she said to him that the process upset her. She was expecting a Conversation of Concern which is not a disciplinary sanction and pointed out that Ms Leader had a discussion with her at a one-to-one meeting about the way in which she spoke to residents and had warned her that next time should there be a repetition there would likely be a Conversation of Concern. Being the subject of a disciplinary investigation caused her stress. She said that her job had not changed, and she was still doing the Scheme Manager role but no-one had informed her about the changes following the restructure. She said that she had been unwell for some time and was unwell on the 21 February 2017. Ms Leader was aware of her condition. She had been referred to physiotherapy sessions at the hospital where she was attending twice a week and was due to see a doctor on 20 March 2017. She did not have anyone to delegate some of her work to and discovered that she had been undermined and “ganged up” on by Ms Leader and other colleagues. She said that Ms Leader had a young team which she had chosen but she was inherited and felt that she was being “eased out”. Mr Tyers disabused her of that notion and stressed that it was his decision to the best steps to take.[65]She gave her account of the incident in the kitchen involving the discussion about washing machines. She said that she tried to explain to Ms Leader that the premises had a perfectly good laundry room and there was no need for washing machines. She asserted that DC had called her “a stupid woman” and felt that she had not been supported by Ms Leader. She stated that there was a lot of issues with the resident but she had done nothing wrong to him. It came about because another resident had asked him why he did not have a shirt on. DC had mental health issues. The claimant felt that the matter had not been dealt with properly as she had a resident she was unable to engage with. She then dealt with an incident involving DC in a discussion about lights. She stated that Ms Leader told her not to engage with DC.[66]In relation to another resident she said that that resident had bi-polar disorder and had to be firm with her because there was an issue created every day. She had made it clear to the resident that she could not come in to her office. On the day in question she was finishing something from the service review as instructed by Ms Leader and Sarah Camps, Senior Service Manager. She, the claimant, had phoned the resident to say that she would be late visiting her. Instead the resident came down to see her in her office and was told to go back up to her flat and that when she, the claimant, was free she would see her. The resident said to the claimant, “I know I push boundaries”. The claimant denied shouting at the resident.[67]In relation to the discussion about ovens, that claimant said that she was unaware that the residents’ oven doors pulled down as most opened like a door. She said that she invited Ms Leader to come with her to look at the particular resident’s oven, to which Ms Leader agreed. The oven in question opened horizontally. The claimant said that she was shocked that the resident had burnt herself and felt that she could not talk to Ms Leader as there was a dispute over what she had instructed Ms Quinn to do on a particular occasion. She felt that she had been bullied by Ms Leader and she was being pushed out. She was advised by Mr Tyers to follow the Grievance Policy if she felt that way. She said that she had been to see a solicitor and wanted to leave Home Group or maybe work reduced hours. She was entitled to receive her pension that month and thought it may be time to step back a bit but not give up totally. She loved her job but was thinking, maybe it was time to go. (195-203)[68]When she received a copy of the notes of the meeting on 29 March 2017, she corrected certain parts, in particular, the reference to reducing her hours and taking her pension and feeling that it was time for her to go. She wrote what she believed she had said which was that she had spoken to Ms Leader about reducing her hours later in the year and had thought maybe it was time to take a step back a bit even though she loved her job. She was not ready to stop work although she was entitled to receive her state pension that month. She stated that she had said that she would go when she was ready. She maintained that she felt that she had been gently pushed and confirmed that she had said that she had spoken to a lawyer. (194)[69]Mr Tyers also interviewed Ms Leader, Ms Camps, and a number of the residents including DC’s daughter. He prepared a detailed report attaching his notes of the various meetings. In his report he found that there was sufficient evidence to take to a disciplinary hearing the allegations that the claimant had shouted at two residents; shown preferential treatment to certain residents; and displayed to certain residents, negative bias. (152- 245)[70]Between the 13 and 14 March 2017, there emails were exchanged between Ms Leader and the claimant who instructed the claimant not to turn up for work out of hours, particularly on the Sunday prior to the awards day, when entertainment had been arranged for St Patricks Day that Sunday. It was a temporary measure as Ms Leader understood that the claimant was unwell and wanted her to provide her with dates when she would attend out of hours in order to make alternative arrangements with other members of staff. (117-121) 14 March 2017 incident[71]On 14 March 2017, an incident occurred in the office shared by the claimant and Ms Leader. According to Ms Leader’s evidence, she was working in the office on the agenda for that afternoon’s weekly team meeting with the claimant and asked the claimant a question about an awards evening. The claimant responded by saying that Ms Leader should work with somebody else because she would not be there for the team meeting as she would be seeing her doctor. Ms Leader then made a note of the conversation.[72]The claimant in evidence said that in the morning she was finishing off some of her work, and money from the residents needed to be banked. She said the Ms Leader came in between 9:30 and 9:40 and she explained to Ms Leader what she was going to do and that after banking she was going home as she was not feeling well. It was then alleged that Ms Leader came close to her face, some two and a half to three feet away, and pointed her finger at her and said, “I had made too much of it and need to get over it and start working professionally.” This was with reference to the disciplinary investigation and the claimant being upset by it.[73]The claimant, in cross-examination, was taken to her grievance dated 25 June 2017, in which no reference was made to Ms Leader wagging her finger, two and a half to three feet away from her. The claimant maintained that it did happen and that there was a lot put into her grievance but omitted to mention finger wagging. (246)[74]It was also put to her that she made no reference to finger wagging in her email sent on 15 March 2017 to Ms Leader at 10:24 in the morning in which she wrote: “Good morning Carol It is with great sadness that I have been signed off with work-related stress. I have to go back to the doctor in 2 weeks. It did not help yesterday you telling me that “I had made too much of it and need to get over it and start working professionally” (not in front of anyone of course). I would like to come in and tidy my desk without you being there if possible.” (122)[75]On 14 March 2017 during the discussion, the claimant left taking the laptop and mobile phone with her.[76]At midday 15 March 2017, Ms Leader emailed the claimant stating: “I know taking sickness leave is difficult for you but I do feel the doctor’s right. Please don’t think about coming in to clear your desk, it really isn’t a problem. I will need your sick note. Service Pro and phone though. Would you like me to come to you or are you ok to pop into Applegrove. Take care and wishing you a speedy recovery.” (124)[77]On 17 March Ms Leader emailed Ms Frost her account of what occurred on 14 March 2017. She stated that she was typing up the agenda for the team meeting and was putting an item on ‘How can we support the open day and awards day’. The claimant suggested that she should work with administration as she would not be there and would be working from home in the afternoon. That she was unable to get to her doctor’s appointment that day but would be seeing the doctor the following morning. Ms Leader asked what she was saying because if she was unwell, then she should go home but not work from home. The claimant then replied, “I am not stupid – I know exactly what you’re doing.” Ms Leader wrote that she had no idea what the claimant meant. The claimant was shaking her hands and became very tearful. She then said, “I have been told not to talk to you or watch what I say to you so I’m going to the bank then I’ll come back drop off the paperwork and go home, there’s a list on my desk with where I am on everything.” (132)[78]The claimant did not return to work and remained on sick leave until her resignation.[79]On 5 April 2017, Mr Tyers sent her a letter informing her that she would be coming up to the long-term absence trigger point so a Team Prevent referral would usually be recommended to assist in managing her absence, but as she had already begun this process in relation to her current absence period, he decided to enclose a booklet entitled “Team Prevent Health and Well-Being Services”. (135-136)[80]Upon receipt of the letter the claimant had a discussion with her solicitors who then wrote to Mr Tyers on the 13 April 2017, stating that the claimant had informed them that she was the subject of an on-going work-related investigation in respect of numerous allegations. They had been instructed by her to contacted by her to inform them that she would no longer be prepared to be contacted directly by him or the respondent regarding the investigation while she was signed on sick leave and her current sick note signed her off until 10 May 2017. She was staying with her daughter to rest and recuperate. Although the respondent does keep in touch with an employee on sick leave, they suggested that they should refrain from contacting the claimant. They then wrote: “The recent correspondence from Mr Tyers in respect of the investigation caused our client a considerable amount of distress, she will not be responding to this and we shall in our next correspondence deal with this matter on behalf of our client. If you have any questions, please do contact us……” (134)[81]Mr Ian Soulsby, Human Resources Business Partner, replied to the claimant’s lawyers on the 13 April 2017, giving a brief account of the investigation stating that a referral to occupational health had not been progressed following the claimant’s instructions. The respondent would, however, maintain contact with and offer her support during her period of absence. (138)[82]On the 8 June 2017, the claimant solicitors submitted a grievance on her behalf dated 26 May 2017. (246-249)[83]This was not accepted by the respondent and by letter dated 19 June 2017, from Mr Soulsby, he wrote that the grievance is an internal process. The claimant was informed in the letter the grievance must come from her directly. (267-268) The claimant’s grievance[84]The claimant, on 25 June 2017, formally lodged her grievance with Mr Soulsby alleging that she had been subjected to unlawful discriminatory treatment amounting to a breach of trust and confidence. She made reference to constructive unfair dismissal although she had not resigned. She wrote that Ms Leader had engaged in bullying tactics towards her and had not behaved in similar ways towards other members of staff. She referred to residents and their behaviours and that Ms Leader’s responses to her concerns who was not supportive. She felt overwhelmed but soldiered on diligently and professionally. She alleged that Ms Leader had belittled her in front of residents over washing machines being in their flats and referred to the incident on 21 February 2017, on chicken and chips Tuesday. She also accused Ms Quinn of belittling her in front of residents. She said that she knew all of the residents, some of whom suffered from mental illnesses, such as dementia and bi-polar and she had to be very firm with them. She took advice from medical experts and asserted that she demonstrated great empathy towards all of her residents. In spite of her hard work Ms Leader decided to initiate a disciplinary investigation instead of a Conversation of Concern. The decision was spiteful and unnecessary and when she asked her why she had decided to initiate a disciplinary investigation rather than engaging in a Conversation of Concern, Ms Leader came right up to her face and pointed her finger at her and told her that she was “making too much of it or that I should get over it and start working professionally.” (270-282)[85]The claimant’s grievance was investigated by Ms Julie Coffey, Policy Manager, who interviewed the claimant on 10 July 2017; Ms Dallas Frost by phone on 19 July; and Ms Leader on 20 July. She also received a number of documents as part of her investigation. She was on leave in late July 2017 and also from 7 August to September 2017. During those times she had childcare responsibilities. She, however, corresponded with the claimant in August and explained to her that if there were further documents she wanted her to see that she would be prepared to see them. The claimant provided her with a number of character references. When she was asked by Ms Coffey whether there was anyone she would like her to interview, the claimant replied that she did not want Ms Coffey to contact them.[86]Ms Coffey completed her report on 22 September 2017 and wrote to the claimant on that day setting out the outcome of the grievance investigation. She concluded that there was insufficient evidence to uphold the claimant’s grievance that Ms Leader “micro managed” her and displayed bullying behaviour towards her. There was sufficient evidence to partly uphold her grievance that Ms Leader did not follow Home Group policy and procedures in response to safeguarding incidents. She found that although there was evidence in the form of warning letters, acceptable behaviour agreements and applications to Court for possession in line with the respondent’s procedures being taken against the resident MF for breaching his tenancy agreement, record keeping in relation to the incidents and allegations did not meet the respondent’s standards.[87]There was also no evidence of formal steps being taken to meet the personal development needs identified by the claimant around working with MF, although there was evidence of support being offered to her in the form of arrangements being made for other colleagues to deal with complaints and other issues relating to MF and DC.[88]There was sufficient evidence, as found by Ms Coffey, to uphold the claimant’s grievance that Ms Leader gave her a reasonable expectation that additional support was required and would be provided to her in relation to her work load, but it was not forthcoming. It was acknowledged by the management team that the claimant had a high work load and that this was, at least, in part, associated with her failing to complete some tasks to the required standards. Ms Coffey made it clear in her letter that she was not making any comments on whether an additional worker should or should not have been appointed to the Applegrove service. This was a management decision taking into account all available funding and operational service delivery issues.[89]She found that there was insufficient evidence to uphold the claimant’s grievance that Ms Leader discriminated against her because of age. She had reviewed the human resources records which showed that all other colleagues reporting to Ms Leader with the exception of one, Ms Quinn, the apprentice, were aged over 40 years with two of the three other housing management co-ordinators being experienced workers who have been employed by the respondent for over 8 and 12 years respectively. Only one other HMC was employed since 2015 and was over the age of 40 years. Ms Coffey found no evidence of any campaign to remove older workers and replace them with younger ones.[90]In relation to the allegation that Ms Leader did not follow Home Group’s procedures with regard to the claimant’s alleged performance and conduct issues, Ms Coffey found that there was sufficient evidence to partly uphold the grievance. She also found that the decision about whether to approach misconduct under informal or formal procedures, rests with the manager and was at the manager’s discretion. Ms Leader was operating within the respondent’s procedures when formal disciplinary procedures were instigated in relation to the claimant’s alleged misconduct. It was felt by the management team to be serious enough to warrant the approach taken. There was no evidence that disciplinary procedures were instigated as part of any campaign of intimidation or bullying on Ms Leader’s part and that disciplinary procedures had not be concluded.[91]Ms Coffey, however, went on to find that there was opportunity to discuss the claimant’s conduct and possible connections with her recent illness at the one-to-one meeting with Ms Leader on 27 February 2017 following her return to work from sickness absence. She found, no evidence of any discussions on these issues taking place before disciplinary procedures started later in the same week.[92]Ms Coffey recommended that the following actions be taken to remedy the situation: 1. formal mediation should be offered to the claimant and Ms Leader in the interests of restoring a professional working relationship; 2. additional support be offered to the management team responsible for the Applegrove service to improve their understanding of the respondent’s policies and processes. This support could take the form of refresher training and/or coaching from an experienced manager and should be discussed and agreed with relevant line managers; and 3. the findings of her investigation should be taken into account as mitigation in any decisions relating to the investigation of the claimant’s conduct under their disciplinary processes.[93]She informed that claimant that she had the right to appeal the grievance outcome. (343-346)[94]The grievance outcome was also communicated by letter to Ms Leader on the same date by Ms Coffey. (347-349)[95]A copy of the report by Ms Coffey was sent to the claimant. (350-366) The claimant’s grievance appeal[96]The claimant appealed against the grievance outcome on 29 September 2017, challenging Ms Coffey’s conclusion that there was no evidence of Ms Leader’s bullying and unpleasant behaviour towards her. She stated that Ms Leader had made no effort to contact her during her sick leave but asked instead for a colleague to call her on her behalf. The claimant also expressed surprise at the lack of consequence and understanding regarding the safeguarding issue. She stated that she was threatened with a spade and Ms Leader did not report it on the respondent’s system. She repeated her keenness to go back to work, but that it would be preferable for her to be engaged at another site because of Ms Leader’s behaviour. She had sent alternative placement options and stated that she was aware that in the past, arrangements had been made to create positions for members of staff who were waiting for a new role. She asked that she be treated with the same level of respect given her many years’ service. (373)[97]On 23 September 2017, she emailed Ms Frost on two occasions at 7:13am and at 15:01pm. In her emails she asked if she be assisted in her request to transfer to a different site which would enable her to return to work from sick leave as she was unable to return to Applegrove. She stated that she saw HMC roles advertised on Linkedin and at Welham Green but did not see them advertised on the respondent’s system. She asked if they were available and, if so, she would like to be considered for a role having regard to her experience. If they were no longer available, she saw the post of Housing Manager advertised on the respondent’s website and also stated that this would be a suitable opportunity for her with her many years’ experience. (367-368)[98]She submitted a further sick note covering her from 29 September to 30 November 2017, for work-related stress and stated that she was not fit for work. (374) Occupational health assessment[99]She was seen by Ms Frost under the managing attendance procedure who referred her to occupational health.[100]There was a telephone assessment by occupational health “OH” of the claimant on 17 October 2017 and a report was prepared on the same day stating that the claimant would not be fit to return to work for 3 months but would be fit after time with adjustments. OH advised that the respondent should engage with the claimant by making weekly telephone calls to her to discuss her welfare but this should not be done by Ms Leader. The claimant should be considered for an alternative role similar to her substantive post but with an alternative line manager. OH recommended that in around 6 weeks’ time the respondent should arrange a meeting with the claimant for an informal chat a she needed to address desensitisation due to her level of anxiety and length of time she had been out of work. She was unfit for her role due to the high level of psychological symptoms and hoped that they would ease with resolution and support from her health care team. She would become fit for work in a few months’ time. It was recommended that she be referred to occupational health in around two months’ time to plan her return to work. (382-385)[101]The claimant submitted further grounds of appeal in addition to her grounds submitted on 29 September 2017. She repeated her challenges to Ms Coffey’s findings and conclusions. She stated that Ms Coffey’s recommendation that mediation be offered was completely farcical in light of her complaints and was upsetting and personally an affront to her feelings. She had mentioned a number of times that no attempt had been made to get her back to work and she had identified several positions which would mean that she would be working away from Ms Leader. She referred to the positions of Housing Manager in Douglas Bader Park sent on 23 September; Housing Management Co-ordinator, Watford; and Housing Management Co-ordination at Welham Green.[102]She further asserted that it was clear that the respondent did not want her to return to work unless she went back to the same department and work with Ms Leader, her aggressor, who subjected her to ill-treatment, discriminatory practices which she was likely to suffer again. The respondent, she stated, did not care if it had breached its duty of care towards her and made her ill and that the recommendations made by Ms Coffey were not acceptable. (393-396)[103]Prior to her grounds of appeal on 6 November 2017, Mr Soulsby emailed Ms Dallas Frost on 2 November 2017, regarding the discussion about the claimant and the approach they should adopt with a view to overcoming perceived barriers to the claimant’s return to work. Mr Soulsby suggested as “next steps” the following: “1. Invite the claimant to a stage 2 meeting to discuss the contents of the occupational health report; 2. To cover the key themes in the report in relation to management intervention to resolve issues, mediation, risk assessment, reasonable adjustments, inviting the claimant to state what specifics the respondent could take to facilitate her return to work, explore options around alternative roles, to agree a planned way forward with agreed time scales.” (392)[104]Following on from their discussion Ms Frost drafted a letter dated 9 November 2017, inviting the claimant to a stage 2 absence meeting to discuss those matters referred to in Mr Soulsby’s email. She told the Tribunal that she posted the letter on the 10 November 2017. (397-398) The claimant’s resignation dated 10 November 2017[105]By email dated 10 November by the claimant to Mr Soulsby, copied to Ms Frost and to Ms Karen Little, Operations Manager, entitled resignation, the claimant informed them that attached to her email was her letter of resignation which was dated 13 November 2017.[106]In her resignation letter she wrote: “Dear Ian I would like to inform you that I resign from my position as Housing Management Co-ordinator with Home Group after 16 years’ service, with effect from 13 November 2017. This is not something I intended to do after so many years of employment, but I feel that Home Group as my employer have left me with no alternative. I have tried to engage with Home Group in attempt to find alternative locations from which to continue my employment and to continue to be dedicated to delivering care for the elderly. Given the substantial and serious breaches committed by Home Group, I hereby confirm my resignation by way of constructive dismissal. Your breaches are so serious that they are fundamental, there is no trust and confidence in this employment relationship and Home Group’s actions are a repudiatory breach and therefore I cannot continue with my employment. Please acknowledge.” (401-402)[107]Ms Frost told the Tribunal that there could not have been a serious attempt at securing the claimant’s return to work having regard to the occupational health report which stated that the claimant was unfit for work for at least 3 months. In was only when she was fit for work or likely to be fit for work, could she seriously engage in looking at alternative roles. The grievance appeal outcome[108]As part of the grievance appeal the claimant met with Ms Little, on 18 December 2017. After taking into account the claimant’s grounds of appeal she wrote to the claimant on 19 January 2019, setting out her outcome decision which was to uphold the findings and conclusions of Ms Coffey. (410-417)[109]As we have previously stated the claimant made a data subject access request. What was disclosed, the claimant made reference to as evidence of the respondent’s mindset when dealing with her age. We have already referred to the email sent by Ms Leader to Mr Soulsby on 21 February 2017. In it Ms Leader referred to the claimant’s age being 63 years, that she was finding the changes difficult, and had been very tearful in recent months. She also made reference to the claimant’s belief that she felt that it was a case of constructive dismissal. (101)[110]During the disciplinary interview held on 10 March 2017 with Ms Leader, in answer to a question by Mr Tyers about the claimant’s tone, Ms Leader responded by saying “AM is quite abrupt and curt, but as she has been under stress, her mental health is deteriorating, she has been very tearful most days. I feel like I am walking on egg shells, I have advised my manager Dallas”.[111]Further in the interview Ms Leader stated that the claimant had refused a Prevent Health referral stating that she did not need it. She was then asked whether it was fair to say that against management advice the claimant declaring herself fit for work. Ms Leader responded by saying “Yes and the other element is that she is due to retire. Things have changed, but her role has changed”. (186-187)[112]Ms Leader wrote to Ms Coffey on 10 August 2017, commenting on the results of the interview Ms Coffey had with her. In her email, amongst other things, she stated: “I don’t personally think it was all work-related in that there was an age issue but I believe it was her issue around receiving her pension details and the fact that her ailments were preventing her from doing the things she used to do as quickly as she wanted. I also think her daughter’s emigration has a huge impact, she talked about Dina a great deal and not surprisingly was quite tearful and missed her terribly.” (533)[113]We find that reference to the claimant’s decline in physical health was due to problems with her leg. She used a walking stick to get around the premises.[114]We were provided with details of the age of staff at Applegrove. Ms Sarah Kennedy was born 12 January 1967 and is 52 years of age; Ms Kayley Quinn, was born on 18 May 1990 and at the date of this hearing was 28 years of age; Mr Ian Pask, was born on 28 July 1976 and was 42 years of age; Ms Janet Edwards was born on 1 May 1965 and is 53 years of age; Ms Dallas Frost was born on 21 September 1955 and was 63 years of age at the date of the hearing.[115]There was no evidence that either Ms Kennedy, Ms Edwards, or Ms Frost was being pushed out by reason of their age, being over 40 years. (137)[116]The claimant stated that she had been bullied, harassed and victimised by Ms Leader for some time. However, in evidence she admitted that in the previous year prior to her retirement, May 2016, she invited Ms Leader to her daughter’s engagement party which was held at her home.[117]The claimant alleged that she was told by a resident that the respondent had made it known that she was dismissed but that person was not called to give evidence. The respondent, in any event denied the allegation.[118]In a newsletter circulated to the residents it stated factually that the claimant was ill and would return to work once fully recovered. As she was well known amongst the residents, her was noted. The letter was to inform them of the claimant’s particular circumstances without giving too much information.[119]The claimant alleged that Ms Leader referred to her opening a coffee shop for the residents when the claimant retires. We do not accept that this conversation was initiated by Ms Leader but by the claimant, who had discussed the possibility of doing so with Ms Leader. Submissions[120]With the parties’ agreement, we have received in writing written submissions in place of oral submissions. We do not propose to repeat their submissions herein having regard to Rule 62(5) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended. We have also taken into account the authorities Ms Grace, counsel for the claimant and Mr Vials, solicitor for the respondent, made reference to.
The Law
[121]Section 95(1)c Employment Rights Act 1996, provides, “(1) For the purposes of this Part an employee is dismissed by his employer if ….. (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[122]It was held by the Court of Appeal in the case of Western Excavating (ECC) Ltd-v-Sharp [1978] IRLR 27, that whether an employee is entitled to terminate his contract of employment without notice by reason of the employer’s conduct and claim constructive dismissal must be determined in accordance with the law of contract. Lord Denning MR said that an employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once.[123]It is an implied term of any contract of employment that the employer shall not without reasonable cause conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between the employer and employee, Malik-v-Bank of Credit and Commerce International [1997] IRLR 462, House of Lords, Lord Nicholls.[124]In the case of Lewis-v-Motorworld Garages Ltd [1985] IRLR 465, the Court of Appeal held in relation to the “last straw” doctrine that, “…the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?”, Glidewell LJ.[125]Dyson LJ giving the leading judgment in the case of London Borough of Waltham Forest-v-Omilaju [2005] IRLR 35, Court of Appeal, held: “A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase ‘an act in a series’ in a technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with earlier acts on which the employee relies, it amounts to a breach of the implied term of mutual trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. I see no need to characterise the final straw as ‘unreasonable’ or ‘blameworthy‘ conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be…. . If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect.”, pages 37 - 38.[126]The test of whether the employee’s trust and confidence has been undermined is an objective one, Omilaju.[127]Section 13 of the Equality Act 2010 defines direct discrimination as follows: “13. Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.”[128]Section 39(2) provides: “An employer(a) (A) must not discriminate against an employee of A’s(b) (B) – (a) ------------------------ (b) in the way A affords B access, or by not affording access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service,(c) by dismissing B,(d) by subjecting B to any other detriment.”[129]A special feature of direct age discrimination is that it can be justified[130]In the case of Seldon v Clarkson Wright & Jakes [2012] ICR 716 (Supreme Court), the claimant, a partner in a firm of solicitors was required to retire before he reached 65 in accordance with a term in the partnership agreement, included with the object of retaining the firm’s younger associates with the opportunity to become partners, facilitating long term workforce planning and limiting the need to expel partners by way of performance management thereby preserving the congenial culture of the firm. The claimant contended this amounted to direct age discrimination.[131]At the Supreme Court, Baroness Hale gave the leading judgment and gave the following summary, paragraph 50: “What messages, then, can we take from the European case law?(1) All the references to the European Court discussed above have concerned national laws or provisions in collective agreements authorised by national 10 laws. They have not concerned provisions in individual contracts of employment or partnership, as this case does. However, Bartsch [2009] All ER (EC) 113 …. did concern the rules of a particular employers’ pension fund; and Prigge … concerned a collective agreement governing the employees of a single employer, Deutsche Lufthansa.(2) If it is sought to justify direct age discrimination under article 6(1), the aims of the measure must be social policy objectives, such as those related to employment policy, the labour market or vocational training. These are of a public interest nature, which is “distinguishable from purely individual reasons particular to the employer's situation, such as cost reduction or improving competitiveness” (Age Concern [2009] ICR 1080 and Fuchs [2012] ICR 93 ).(3) It would appear from that, as Advocate General Bot pointed out in Kücükdeveci [2011] 2 CMLR 703, that flexibility for employers is not in itself a legitimate aim; but a certain degree of flexibility may be permitted to employers in the pursuit of legitimate social policy objectives.(4) A number of legitimate aims, some of which overlap, have been recognised in the context of direct age discrimination claims: (i) promoting access to employment for younger people (Palacios de la Villa, Hütter and Kücükdeveci); (ii) the efficient planning of the departure and recruitment of staff (Fuchs); (iii) sharing out employment opportunities fairly between the generations (Petersen, Rosenbladt and Fuchs); (iv) ensuring a mix of generations of staff so as to promote the exchange of experience and new ideas (Georgiev and Fuchs ); (v) rewarding experience (Hütter and Hennigs); (vi) cushioning the blow for long serving employees who may find it hard to find new employment if dismissed (Ingeniørforeningen i Danmark); (vii) facilitating the participation of older workers in the workforce (Fuchs; see also Mangold v Helm (Case C-144/04) [2006] All ER (EC) 383 ); (viii) avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job, which may be humiliating for the employee concerned (Rosenbladt); or (ix) avoiding disputes about the employee's fitness for work over a certain age (Fuchs).(5) However, the measure in question must be both appropriate to achieve its legitimate aim or aims and necessary in order to do so. Measures based on age may not be appropriate to the aims of rewarding experience or protecting long service (Hütter, Kücükdeveci and Ingeniørforeningen i Danmark)(6) The gravity of the effect upon the employees discriminated against has to be weighed against the importance of the legitimate aims in assessing the necessity of the particular measure chosen (Fuchs).(7) The scope of the tests for justifying indirect discrimination under article 2(2)(b) and for justifying any age discrimination under article 6(1) is not identical. It is for the member states, rather than the individual employer, to establish the legitimacy of the aim pursued (Age Concern).”[132]Baroness Hale further explained at para 55-57: “55. It seems, therefore, that the United Kingdom has chosen to give employers and partnerships the flexibility to choose which objectives to pursue, provided always that(i) these objectives can count as legitimate objectives of a public interest nature within the meaning of the Directive and(ii) they are consistent with the social policy aims of the state and(iii) the means used are proportionate, that is both appropriate to the aim and (reasonably) necessary to achieve it. 56. Two different kinds of legitimate objective have been identified by the Luxembourg court. The first kind may be summed up as inter-generational fairness. This is comparatively uncontroversial. It can mean a variety of things, depending upon the particular circumstances of the employment concerned: for example, it can mean facilitating access to employment by young people; it can mean enabling older people to remain in the workforce; it can mean sharing limited opportunities to work in a particular profession fairly between the generations; it can mean promoting diversity and the interchange of ideas between younger and older workers. 57. The second kind may be summed up as dignity. This has been variously put as avoiding the need to dismiss older workers on the grounds of incapacity or underperformance, thus preserving their dignity and avoiding humiliation, and as avoiding the need for costly and divisive disputes about capacity or underperformance. Either way, it is much more controversial. As Age UK argue, the philosophy underlying all the anti-discrimination laws is the dignity of each individual, the right to be treated equally irrespective of either irrational prejudice or stereotypical assumptions which may be true of some but not of others. The assumptions underlying these objectives look suspiciously like stereotyping. Concerns about capacity, it is argued, are better dealt with, as they were in Wolf v Stadt Franfurt am Main (Case C-229/08) [2010] All ER (EC) 939 and Prigge v Deutsche Lufthansa AG (Case C-447/09) [2011] IRLR 1052 , under article 4(1) , which enables them to be related to the particular requirements of the job in question. (Emphasis in original)[133]The means chosen have to be both appropriate and necessary. The “means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory, measures which would do so.”, paragraph 62. Conclusions Direct age discrimination
Conclusions
[134]In relation to the direct age discrimination claim, the claimant relies on the alleged statements made during the course of her employment about her her age and/or retirement. We have not found as fact that this was instigated by Ms Leader or by any member of management. We found that the claimant was in discussions with her daughter, Dina, about retirement and she informed her that she would be able to retire at 63 years and receive a state pension. It was the claimant who raised her retirement as a subject of discussion during which Ms Leader would participate but did not instigate the discussion. Even in the claimant’s letter received by the respondent on the 29 March 2017 in response to the notice of the grievance meeting, she stated that she had spoken with Ms Leader about reducing her hours, possibly later in the year. She also stated that she thought that maybe it was time to take a step back a bit even though she loved her job. She was not ready to stop work even though she was entitled to receive her state pension that month. She did acknowledge that she discussed the possibility of reducing her hours and “take a step back a bit”.[135]We are satisfied that she was weighing up her options when she was considering retirement.[136]The other matter relied on by her was the respondent’s decision to invoke the disciplinary procedure. She asserted that this was an attempt to force her out of her employment because of her age. We acknowledge that at the one-to-one meeting held on 9 November 2016, she was warned by Ms Leader that should there be a repetition of her behaviour in relation to the treatment of residents, there was likely to be a Conversation of Concern. Subsequently, it transpired that a number of issues in relation to the claimant’s conduct towards residents came to light. It was management’s decision as to their seriousness. Ms Leader had taken advice from human resources and it was felt that they were serious enough to require an investigation. Ms Coffey did not criticise Ms Leader for referring them on rather than dealing with them by way of a Conversation of Concern. She acknowledged it was the manager’s discretion. We agree that the seriousness of an employee’s conduct is for an employer to decide.[137]The claimant alleged that the respondent failed to respond to her request to return to work, in particular, the potential vacancies she identified. Ms Frost in her evidence before us, in managing the claimant’s attendance, stated that she was hoping that the claimant would recover and return to work as soon as possible. This was supported by the email evidencing the steps to be taken which were agreed between her and Mr Soulsby in relation to facilitating the claimant’s return to work and in addressing work-related issues. The letter Ms Frost wrote to the claimant on 9 November 2017, referred to those matters and the agreed next steps.[138]As regards failing to reintegrate the claimant into the work force, Ms Frost she referred the claimant to occupational health and in the report, it stated that the claimant was unfit for work for 3 months. As it was dated 17 October 2017, it took the claimant up to the 17 January 2018. However, it was recommended that there be a meeting with the claimant after 2 months to look at the possibility of a return to work, around 17 December 2017. Whilst the claimant was unfit for work, it was difficult to engage in a meaningful discussion about alternative positions, in particular, those she identified, until such a time she was fit and able to work.[139]She also relies as an act of direct age discrimination, on the termination of her employment which depends on whether or not the constructive unfair dismissal claim is well-founded.[140]There was no evidence that older workers over the age of 50 years or indeed over 40 years, have been forced out of their employment.[141]Having regard to the above matters relied upon by the claimant in support of her direct age discrimination claim, compared with someone at the age of 50 years, in similar circumstances, there would have been no difference in treatment.[142]Following the subject access disclosures, Ms Leader did make reference to the claimant’s age in an email of 21 February 2017. That was in the context of Ms Leader’s knowledge that the claimant was finding it difficult to cope with the changes following the restructure. It was a statement of fact conveyed to human resources. Her mental health was not a reference to the claimant’s age but the problems the claimant was experiencing at the time.[143]The statement that she was due to retire was based on her discussions with Ms Leader. The reference to Ms Leader not personally thinking it was all work-related and that there was an age issue, she believed that it was the claimant’s issue around receiving her pension details and her ailments. What Ms Leader was doing was discounting age as a relevant factor. On balance, we take the view that although it was unnecessary for her to refer to the claimants’ age being 63 years, it was in the context of the claimant’s apparent change in personality and that she was finding it difficult to cope with the changes. It did not evidence a particular mindset to discriminate because of her age. Ms Leader was born in 1962 would have been 55 in 2017, 8 years her junior, which is not a significant difference.[144]Taking the above matters into account, we have come to the conclusion that the claimant has not established less favourable treatment because of age, therefore, the burden did not shift to the respondent to justify the treatment. This claim is not well-founded and is dismissed. Harassment related to age[145]In relation to harassment related to age, the claimant relied on the conversations, allegedly instigated by Ms Leader, about her age and retirement; opening a coffee shop for the residents; and invoking the disciplinary process. We have already made our findings and gave our conclusions. Ms Leader’s did not initiate those discussions, only the claimant as she was in the habit of discussing retirement and no pressure or influence was put on her to retire. Quite the contrary, she was a valuable and hard-working employee. Ms Leader did not engage in unwanted conduct unrelated to age.[146]As regards forcing the claimant to return her laptop and phone despite not being on extended sick leave, the respondent did not want the claimant to be working at home and wanted its equipment to be used by temporary staff during any period of absence. The requests were not related to the claimant’s age.[147]In relation to the allegation that the respondent informed a resident that the claimant had been dismissed, this information was obtained by the claimant from a resident who said that she had heard conversations by a resident that the claimant had been fired. There was no evidence that the respondent had, at any point, informed the residents that her employment been terminated. We were taken to a newsletter circulated among the residents and that showed that the claimant was “poorly and would return once fully recovered” but this was to inform the residents as to her absence. (127)[148]As regards failing to deal with the claimant’s grievance in a timely manner, we found that Ms Coffey had taken leave and had requested further documents and information from the claimant. Ms Coffey also had childcare responsibilities. We have come to the conclusion that there was the absence of evidence upon which we could find as fact that Ms Coffey’s treatment of the claimant was related to the claimant’s age or to age. There was explanation given by her for the delay which was unrelated to age.[149]Our conclusion is that the harassment related to age claim is not wellfounded. Constructive unfair dismissal[150]In relation to the constructive unfair dismissal claim, the claimant referred to her excessive work load and claimed that it resulted in damage to her health. While we acknowledge that she did have a high work load, there was no evidence that the work she was doing caused any mental or physical injury. She did not produce medical evidence in support of that assertion. She would occasionally come in to work at weekends and on her days off because she loved her job. We, however, acknowledge and as found by Ms Coffey, that the claimant had an expectation that someone would help her with her work load, Ms Coffey did not find that she had an excessive work load.[151]It was difficult for this Tribunal to find that the claimant had an excessive amount of work to do as she was very much involved in the life of the residents. She put a lot of her time and effort into Applegrove and was assisted for some time by Ms Quinn. According to Ms Leader, the claimant did not fully acknowledge that her role had changed from Scheme Manager to HMC as the latter was essentially a desk based role.[152]With regard to safeguarding the claimant appropriately while at work in relation to resident MF or the resident who waved a stick after the quiz session, there was clear evidence that Ms Leader did deal with MF, the recovering alcoholic. He was the subject of repossession proceedings and had previously been given a warning. He also entered into a behavioural agreement. The claimant was also used to residents misbehaving and was in a position to deal with their behaviours. The resident who waved a stick did not assault her.[153]As regards to subjecting her to an unnecessary and disproportionately intrusive disciplinary procedure, we have found that this was the proper exercise of management’s discretion. At the earlier one to one meeting, the claimant was warned about her conduct and the possibility of a Conversation of Concern, but the concerns raised became serious that such a conversation was inappropriate.[154]In relation to failure to address the claimant’s grievance in a timely manner and to uphold her grievance, we have already given our conclusions in respect of these matters. There were reasons for the delay which were perfectly acceptable. With regard to not upholding her grievance, some of her grounds were partially upheld by Ms Coffey. Ms Coffey was not under any obligation to uphold all of the claimant’s grievances. She conducted a detailed investigation, made findings of fact consistent with her investigation and came to a reasoned conclusion.[155]The claimant stated that the final straw was the respondent’s failure to engage with her in a return to work discussion despite her best efforts to do so and in failing to provide her with support in the months leading up to her resignation. It was clear from her solicitor’s letter, that the respondent was informed that she did not wish to engage directly with them and that they should communicate with her solicitors. Ms Leader was also instructed not to directly engage in communication with her. Ms Frost, in an attempt at determining the claimant’s fitness for work, instructed occupational health. OH advised that the claimant was unfit for 3 months. It, therefore, follows that the claimant’s information about potential vacancies were only relevant if she was fit and able to return to work. The fit note dated 29 September 2017, stated that she was unfit for work from that date to 30 November 2017. There was no indication prior to the claimant’s resignation that she was fit and able to return to work in any capacity. We also find that the respondent decided to meet with her as part of stage 2 with management to discuss the next steps with a view to facilitating her return to work.[156]The claimant also relies on her direct discrimination claim because of age as part of her constructive unfair dismissal claim but we have found that that claim is not well-founded.[157]We have come to the conclusion that the constructive unfair dismissal claim is also not well-founded and is dismissed.[158]Having regard to our conclusions, the listing of this case for a provisional remedy hearing on Tuesday 2 July 2019, is hereby vacated.