Ms V Blowfield v Trinity Care Beds and Northants Ltd: 3307753/2023
JUDGMENT
[1]The respondent is the correct respondent for the claimant’s claim. Notice Pay[2]The complaint of breach of contract in relation to notice pay is well-founded.[3]The respondent shall pay the claimant £456.25 as damages for breach of contract.REASONS
At the end of the hearing, the respondent requested written reasons of the Judgment which had been delivered orally. Issues[1]The issue for this hearing werea. who the correct respondent is andb. whether the claimant was entitled to pay in lieu of notice.[2]The claimant was dismissed on 18 April 2023 with immediate effect. She was paid various amounts on termination, some of which she had to request. She was not paid in lieu of notice and claims £456.25.[3]The respondent’s grounds of resistance state that they are not the correct respondent and that they have no employee records relating to the claimant as these are held by Visiting Angels. Evidence[4]I heard evidence from the claimant and from Mr Bhandari, under oath. I also had the tribunal file. It was apparent that neither party had complied with the case management directions sent on 2 July 2024. These required the claimant to send a Schedule of Loss, disclosure of documents, preparation of the bundle and exchange of witness statements.[5]I adjourned the hearing for a short break so that the claimant could send me and the respondent the documents she was relying on to support her claim. These included emails and a payslip.[6]The respondent told me that it no longer owns the franchise and has no access to any documentation relevant to the claimant. Facts[7]I found the following facts on the balance of probabilities.[8]The claimant started working for a franchise known as ‘Visiting Angels’ on 6 September 2022. The business provides care to clients in their own homes. The claimant was employed as a Team Leader.[9]In February 2023, the respondent invested in the franchise and became its owner until it sold the business in July 2023.[10]After the respondent took over the business, various changes were made to the claimant’s working arrangements, which she was unhappy about. She commented about her dissatisfaction to a client and to colleagues.[11]At the end of the claimant’s probationary period on 20 February 2023, she was told she had not passed her probation and that the probationary period would be extended.[12]In February or March 2023, the claimant was issued with a disciplinary warning for discussing her work grievances with clients and colleagues. The claimant admitted doing so and apologised.[13]The claimant was then off sick. On her return to work, on 18 April 2023, she visited a client at their home, which was approximately 15 miles away. On the claimant’s return to the office, Deborah King spoke to her and said she did not think the employment relationship was working for either of them. It was agreed that the claimant would leave with immediate effect. Deborah King did not make any allegation of misconduct at that meeting.[14]On 22 April 2023, the claimant joined a public Facebook live event organised by the respondent and she posted smiley emojis.[15]When the claimant received her payslip for April 2023, she saw that she had not been paid all the money due to her. She wrote to Mr Bhandari who passed the query to Deborah King, Operations Manager. Deborah King replied, confirming payment of some of the amounts claimed. She initially said that the claimant was not entitled to notice pay because she did not pass her probation.[16]The claimant replied that she was entitled to a week’s notice under her contract unless she had ‘committed a serious breach of obligations or committed gross misconduct’, stating that this clause did not apply in her case.[17]The respondent paid the claimant further sums but did not pay the notice pay.[18]On 2 May 2023, the claimant contacted ACAS and informed Deborah King that she had been told by ACAS that she would be entitled to her notice pay unless she had committed a serious breach or an act of gross misconduct.[19]Deborah King replied on 9 May alleging that the claimant had committed serious breach of obligations as an employee on more than one occasion. She mentioned the matters which had led to the disciplinary warning and said that the claimant had been disruptive and unco-operative which led to her dismissal.[20]The claimant responded, pointing out that the original reason given for not paying notice was that she had not passed her probation. She also said that the breach of obligation which had led to the warning could not have been gross misconduct as she was not dismissed at that time.[21]In response, on 11 May 2023 Deborah King explained that the respondent would not pay notice pay for the following reasons:a. the act of misconduct which had led to a warning;b. her refusal to cover shifts or work as part of a team, which led to her failing probation;c. accessing the company Facebook account on 22 April 2023 in breach of rules in the staff handbook.[22]The claimant then started early conciliation and brought these proceedings.[23]Although Mr Bhandari initially professed to know nothing of the circumstances of the termination of the claimant’s employment, it is apparent from the emails relied on by the claimant at the time of her dismissal that he was copied in on the communications with Deborah King.[24]Mr Bhandari alleged that the claimant committed a further act of misconduct by communicating her dissatisfaction at work to a client after she received the warning. He was unable to give any details of this allegation as he did not have access to any of the claimant’s personnel file but relied on his personal recollection. Legal test[25]The relevant law is that an employee is entitled to statutory minimum notice (or contractual notice, if greater) on termination of employment unless they have committed a fundamental breach of contract, which would disentitle them to notice or payment in lieu. Determination of the issues[26]I determine the issues as follows: Correct respondent[27]I find that the claimant was employed by the respondent at the time of her dismissal and that it is the correct respondent for the claim for notice pay, which arises on termination. Although Mr Bhandari claimed to have no knowledge of the claimant or the circumstances of her dismissal, he accepted that he was copied in on contemporaneous correspondence when this was produced to the tribunal by the claimant. He then said he remembered what had happened and gave evidence of his recollection of events.[28]The claimant produced a payslip which shows the employer as ‘Trinity Care Beds and Northants Ltd’. Although this is not necessarily conclusive, I find that this payslip, together with the other documentation and the evidence of the witnesses shows that the respondent was the claimant’s employer at the time of her dismissal. Notice pay[29]It is clear that there were problems with the relationship between the respondent and the claimant as evidenced by the extension to her probationary period and a disciplinary warning.[30]Based on the evidence before me, I find that the reason for dismissal was a mutually unsatisfactory working relationship. I did not hear from the decision maker, Deborah King, but I had the benefit of a number of emails she sent to the claimant.[31]Deborah King’s initially response was that no notice was payable because the claimant had not passed her probation period. In Deborah King’s email of 9 May 2023, the reason given for dismissal was that the claimant was disruptive. After the claimant told Deborah King on 11 May 2023 that the only basis on which notice pay could be withheld was gross misconduct, Deborah King then accused the claimant of committing gross misconduct at the Facebook Live event. She did not refer to the events which led to the extension of probation or the disciplinary warning as gross misconduct, only the Facebook issue on 22 April 2023. This event took place after the termination of employment. This is not a situation where previous misconduct came to light after dismissal. By 22 April 2023, the claimant owed no obligations to the respondent. I therefore conclude that this cannot be gross misconduct.[32]Mr Bhandari stated that there was also an alleged incident of the claimant complaining to a client, after she had received a warning not to do this. He was unable to point to any evidence other than his own recollection. He was unable to confirm the date of the alleged breach or the identity of the client. Given that the hearing started with Mr Bhandari maintaining that he had no involvement with the claimant, I find that his recollection of this later misconduct lacks credibility.[33]To the extent that the respondent now relies on this alleged breach as the reason for dismissal, this is inconsistent with the contemporaneous documentation between Deborah King and the claimant.[34]The respondent was not clear when this breach took place (other than it was after the warning had been issued) or when it came to light. If it came to light after the termination date, I find that this would not have been before 11 May 2023. If Deborah King had been aware of it, it is inconceivable that she would not have included reference to it in her email of 11 May 2023. It would have been the most relevant piece of information to justify not paying notice and it is extremely unlikely that she would not have mentioned it.[35]If the respondent contends that the allegation came to light after 11 May 2023, there is no evidence before me of this. In any event, it cannot be the justification for not paying the notice at the time.[36]In conclusion, I find that the claimant is entitled to one week’s notice and the respondent is ordered to pay her the sum of £456.25. Adjournment request[37]Part way through the hearing, the respondent requested an adjournment of the hearing so that it could take steps to obtain documents, which were no longer in their possession and to call Deborah King to give evidence. Its starting position had been that it was not the correct respondent, and it had not prepared to defend the claim on any other basis.[38]I refused the request. The respondent had been the employer at the relevant time and Mr Bhandari’s representation that he and Mr Melvin knew nothing about the claimant’s dismissal was untrue. In any event, the respondent had been aware of the case management orders since 2 July 2024. Although I accept that the respondent no longer has access to the claimant’s personnel file because it transferred all relevant documentation when it sold the business, the respondent appears to have taken no steps to request the documentation from Visiting Angels or to ask Deborah King to give evidence.[39]I also took account of the overriding objective and the principle of proportionality. The claimant’s claim is for under £500. It would not be proportionate to hold another hearing to determine the claim. In any event, the respondent was unable to explain what further documents or information they would expect to be able to produce which would impact my decision.