Mrs D Eddowes v Sutherland and Co: 4100231/2019
JUDGMENT
[1]The claimant was employed by Sutherland and Co, a firm, and the claim is ordered to proceed against that entity as set out above.[2]The claimant was not dismissed by the respondent, her employment with the respondent has not terminated, the Tribunal does not have jurisdiction to consider any claim for statutory sick pay, she has no claim for damages for breach of contract as her employment has not terminated and in any event the Tribunal has no jurisdiction for such a claim, and her Claim is dismissed.REASONS
[1]At the commencement of the hearing I sought clarity on the identity of the respondent, and what the claims were for. The respondent is a firm, with a trading name of Sutherland and Co. That is a separate legal entity to the 5 individual partners, who are Mr George Sutherland and his sister Dr Elizabeth Wassall. Dr Wassall undertook the management of the business and was present to give evidence, with her husband appearing as the representative of the respondent. The claimant was also represented by her husband. The claimant confirmed that she made what is normally referred to as a claim for 10 constructive dismissal against the respondent. She also sought notice pay, which is damages for breach of contract, on the basis that the contract had terminated, and sought to claim for statutory sick pay (SSP). The Claim was denied in its entirety.[2]The claimant stated that there was an error in the date of termination given on 15 the Claim Form, which stated 10 September 2019. The year should have been 2018. She confirmed that the claim was not of actual dismissal, but constructive. I raised with her what she relied on as evidence of resignation, and she referred to having sent a letter to the respondent. I had noted that the bundle of documents referred to an appeal in relation to SSP, and it was 20 confirmed that that had not yet been determined. I indicated that there was an issue as to whether the claim for SSP could be either before me, or determined by me.[3]I outlined the nature of a claim of constructive dismissal, both as to what was required to demonstrate a dismissal including a resignation, and the separate 25 issue of fairness if there was a dismissal. I made reference to a letter in the bundle of documents dated 7 November 2018 which had not referred to a resignation. I outlined the nature of a claim for breach of contract based on acceptance of a repudiatory breach of contract, and my concern over whether I could determine a claim in relation to SSP where another Tribunal was in the 30 process of hearing an appeal about it. The claimant had sought a year’s pay in the Claim Form as compensation. I outlined the nature of a compensatory award, and that it was based on loss, if any, sustained as a result of a dismissal held to be unfair. I also outlined a concern over a message from the respondent that sending fit notes was irrelevant, and noted that the respondent’s position was that the employment had not terminated.[4]I gave the parties an opportunity to consider whether they wished to agree a resolution of the matters before me. After adjourning for a little over half an hour the parties stated that they wished to continue with the hearing. I then heard evidence. Issues 10[5]The Tribunal identified the following issues:(i) Had the respondent dismissed the claimant under section 95(1)(c) of the Employment Rights Act 1996 (“the Act”)?(ii) If so, what was the reason for that dismissal?(iii) If the reason was potentially fair, was that dismissal unfair under section 15 98(4) of the Act?(iv) If so, would a fair dismissal have resulted from a different procedure, and if so what reduction in compensation should be made for that?(v) Had the respondent committed a repudiatory breach of contract which the claimant had accepted and terminated the contract?(vi) If there was an unfair dismissal, or termination of employment, what was the extent of the claimant’s losses?(vii) Did the Tribunal have jurisdiction to consider any claim in relation to SSP?Evidence
[6]The Tribunal heard evidence from the claimant, and from Dr Wassall. 25 Documents were spoken to from a single bundle the parties had prepared. Not all documents in that bundle were spoken to in evidence. Further documents were added to the bundle during the course of the hearing.Facts
[7]The Tribunal found the following facts to have been established:[8]The Claimant is Mrs Doreen Eddowes.[9]She was employed by the respondent from 1 May 2016 as a Housemaid.[10]The respondent is Sutherland and Co. It is a firm. The partners are George 5 Sutherland and Dr Elizabeth Wassall.[11]Mr Sutherland is a farmer. Dr Wassall is an industrial chemist. She is not medically qualified. She lives in Warwick, and undertakes the management of the business. She does so for most of the time from her home, but also attends the property periodically.[12]The business of the respondent is to operate a bed and breakfast establishment in Thurso.[13]The business is run locally by a manager. There are also a number of staff, normally four, who are employed on zero hours contracts. That is because the business is seasonal. It has high occupancy rates in summer months, but low 15 occupancy rates in winter months.[14]Rotas are prepared on a weekly basis. Those employed on zero hours contracts are offered work on the rota, but have no obligation to accept it. They can, and often do, work in other roles for other employers.[15]The claimant was employed by the respondent on a zero hours contract. She 20 had a wide range of duties for the respondent, that included undertaking cleaning of rooms, waiting in the dining room, reception duties and administration. When the establishment was busy in the summer she could work around 60 hours per week. In the winter months the hours were very low. The average was 16-20 hours per week, working on average four hours per 25 week. The normal hours of work were 11am to 3pm. She was paid at the level of the national minimum wage, latterly the national living wage.[16]Initially the relationship between the parties was good. The claimant enjoyed her role with the respondent.[17]On 28 August 2017 the claimant was absent from work, which continued until 3 September 2017. She did not provide a fit note from her GP for that period, but was paid as if she had done so.[18]The claimant had a further period of absence from 30 September 2017 to 26 October 2017 for which she submitted sick notes. The reason for the absence was a cyst on her knee which caused pain.[19]She then sought to return to work, and did so in the period to late November 2017. She continued to have pain in her knee. She was also diagnosed as 10 having fibromyalgia (the date of which was not given in evidence). She received medication for that, which caused her to feel fatigued and have lesser concentration.[20]She was absent from work from and after the end of November 2017. She was certified as unfit to work by her GP from and after the end of November 2017. 15 She submitted fit notes to confirm that to the respondent on a regular basis.[21]The claimant met Dr Wassall on 29 December 2017. Dr Wassall asked the claimant whether she could return to work on very light duties, which involved being at reception to answer the telephone, speak to guests, and attend to administration. She was of the belief that the claimant was fit for that work. The 20 claimant did not think that she was. There was also a discussion about SSP entitlement of the claimant.[22]There was to have been a further meeting on or around 2 January 2018 to discuss that, but the claimant cancelled it.[23]On 4 and 5 January 2018 Dr Wassall wrote to the claimant to set out her 25 position, to which the claimant replied on 12 January 2018. Dr Wassall responded further on 14 January 2018. The parties did not agree what work if any the claimant was fit for. Dr Wassall suggested that the claimant seek advice.[24]Dr Wassall sought to arrange a separate medical report on the claimant with the two GP practices in Thurso, and one offering a measure of occupational health advice, but none were prepared to do so. She did not seek assistance from further afield.[25]The claimant sought advice from the Citizens Advice Bureau (CAB), who wrote 5 on her behalf on 31 January 2018. Dr Wassall replied to them on 11 February 2018, reiterating her position that the claimant was fit for what she described as exceptionally limited office duties but that “she has chosen to not make herself available.” She stated that she could not complete an SSP Form because of that. Further correspondence was exchanged on 21 and 28 March 10 2018.[26]Dr Wassall commenced communication with HMRC in relation to SSP after that issue was referred to them by the CAB acting on behalf of the claimant. HMRC wrote to her on 14 March 2018 with a form for completion.[27]The entitlement to SSP ended by the end of April 2018, as it is for a period of 15 28 weeks of absence.[28]The claimant was examined by a medical practitioner appointed by HMRC on 22 June 2018. On 4 July 2018 HMRC wrote to the respondent with an informal decision supporting the claimant’s claim to SSP. Dr Wassall responded for the respondent to challenge that.[29]On 10 September 2018 the claimant sent by email to Dr Wassall and post to the respondent a further fit note.[30]Following further exchanges of correspondence on 14 September 2018 HMRC wrote to the respondent, a letter also sent to the claimant, upholding the respondent’s position and stating that there was an outstanding balance due 25 to the claimant of £178.70 for SSP.[31]On 15 September 2018 Dr Wassall replied to the claimant’s email of 10 September 2018 asking “”Why are you sending these, they are irrelevant.”[32]Shortly after receipt of the letter of 14 September 2018 the claimant appealed the decision of HMRC. That appeal was later rejected, as was a further appeal made by the claimant.[33]On 7 November 2018 the claimant wrote to Dr Wassall by email, and sending the same by recorded delivery post, attaching her latest fit note. Her letter 5 stated the following:- “Please find attached my latest medical certificate. I note that when I sent you the last certificate you messaged me to enquire why I had done so. You also said that they are irrelevant. I am uncertain what you meant by this, but as I have had no contact from you I consider it is my duty as an 10 employee to inform you that I pass on all such information. I would be grateful if you would advise me if there are any issues of which I should be aware.”[34]When Dr Wassall opened the email, she opened the first attachment which was the fit note. She did not open the second, the letter, believing it to be 15 another fit note.[35]The letter was received at the establishment. It was opened by the manager, who scanned it and sent it by email to Dr Wassall with the fit note. When Dr Wassall viewed the message she did not open the attachment with the letter believing it to be a further fit note. She did not reply to the letter because she 20 had not seen it. Had she done so, she would have said that there were no issues.[36]The claimant has appealed the HMRC decision further, and it is to be heard within HM Courts and Tribunal Service. The parties were not aware of when that would be. The sum of SSP found to be outstanding is not payable by the 25 respondent until after that appeal has been determined.[37]Early conciliation was commenced by the claimant on 28 November 2018.[38]The claimant has continued to be assessed by her GP as being unfit to work. Submissions for Claimant[39]Mr Eddowes argued briefly that the claimant had loved her job, the relationship had become sour but the claimant would have worked if she could have. He argued that she needed some kind of recompense for the best part of a year without income. Submissions for Respondent[40]Mr Wassall argued that there was a lack of evidence to prove the claim. He said that there had not been a dismissal. The claimant had been misleading. She had been acting in a way that confirmed that she was fit for the exceptionally light duties offered to her. He referred to messages and posts on 10 social media. The respondent had been confused by receipt of a claim form, as there had been no dismissal. The claimant argued that she had assumed that she had been dismissed, and the respondent could have argued that it had assumed that the claimant had resigned but did not do so. The respondent considered that the claimant was still employed by them. If they had not 15 understood the position in relation to holiday pay, it would be paid. He did not pursue an argument as to the validity of the fit note provided, and was wise to do so.Law
[41]Section 95 of the Act provides, so far as material for this case, as follows: “95 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2) only if)— …………….. (c) the employee terminates the contract under which he is 25 employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”[42]Section 98 of the Act provides, so far as material for this case, as follows: “98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for 10 performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position 15 which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. …………… (4) Where the employer has fulfilled the requirements of subsection (1), 20 the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a 25 sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”……………….. Discussion (i) Observations on the evidenceDiscussion
[43]I shall make brief reference to the manner in which evidence was given in light of the conclusion that I have reached. There were occasions where the two witnesses had different recollections of events, but the main disputes were in relation to whether or not the claimant was fit to do the work offered. Latterly Dr Wassall accepted that she was not medically qualified, and had not seen 5 any medical report (including that secured by HMRC) which challenged on a proper basis the GP’s fit notes. She also accepted that she was not aware of the position in relation to holiday pay which can accrue when someone is off work ill, and that she had not been correct to state in her email that sending such fit notes after SSP had expired by the end of April 2018 was “irrelevant”. 10 It was relevant to establish that the reason that the claimant was not at work was not because she had chosen not to be, but could not as a result of her illness, and that may have also been relevant to accrual of holiday pay under the Working Time Regulations 1998. It was however to the great credit of Dr Wassall that she recognised that when giving her evidence.[44]The other aspect which was raised in evidence was the dispute as to whether the claimant was fit for the light duties proposed by Dr Wassall, who believed that she was. Dr Wassall herself has rheumatoid arthritis and found working helpful. I have no doubt but that Dr Wassall was genuine in her belief, and was surprised that the claimant said that she was not fit, when social media posts 20 referred to activities such as Christmas dinner for a large family group, and upholstering one or more chairs. But Dr Wassall is not medically qualified, and the GP who certified her unfit for work is. Whilst clearly there were attempts to obtain a medical report locally which failed, if there was to be a proper assessment of fitness for the work offered that required to be by someone 25 medically qualified. That was not sought outwith Thurso, but could have been. Again however it was to her great credit that Dr Wassall accepted that that was the case.[45]The claimant was not clear on some matters of detail in her evidence, and said that she could not remember aspects of it, including dates of events. She was 30 also not clear about the termination of employment. Her Claim Form had stated that this was on 10 September 2018, correcting the year, but the basis for that claim was not given in evidence, and was clearly contradicted by documents, including ones she had sent herself. (ii) Dismissal[46]The first issue I require to address is whether or not there was a dismissal under section 95(1)(c) of the Act. If there was not, most of the other issues fell 5 away.[47]The onus of proving such a dismissal where that was denied by the respondent fell on the claimant. The statute refers to necessity of the claimant terminating the contract of employment.[48]From the case of Western Excavating Ltd v Sharp [1978] IRLR 27 followed 10 in subsequent authorities, in order for an employee to be able to claim constructive dismissal, four conditions must be met:(1) There must be a breach of contract by the employer, actual or anticipatory.(2) That breach must be significant, going to the root of the contract, such 15 that it is repudiatory(3) The employee must leave in response to the breach and not for some other, unconnected reason.(4) She must not delay too long in terminating the contract in response to the employer's breach, otherwise she may have acquiesced in the breach.[49]Early case law indicated that the employee must make it clear that he or she left employment with the employer as a result of a breach of contract by the employer that was repudiatory, and do so without delay. For example in Walker v Josiah Wedgwood & Sons Ltd [1978] IRLR 105, the following was said: “… it is at least requisite that the employee should leave because of the breach of the employer's relevant duty to him, and that this should demonstrably be the case. It is not sufficient, we think, if he merely leaves … And secondly, we think, it is not sufficient if he leaves in circumstances which indicate some ground for his leaving other than the breach of the employer's obligation to him.”[50]That was followed and approved by another division of the EAT in Norwest Holst Group Administration Ltd v Harrison [1984] IRLR 419.[51]In a decision of the High Court in England in an action about a restrictive covenant, Spencer v Marchington [1988] IRLR 392, it was held that conduct which is as consistent with the contract being kept alive as it is with an acceptance of the repudiatory breach will not constitute the clear acceptance of the repudiatory breach. This was said: “If it was a repudiation I am not able to find any acceptance of it by Mrs Spencer. In staying away she was only doing what she was asked, so that would as much indicate that she agreed to Mr Marchington's request to do so as that she rejected it.”[52]The requirement to give the reason for leaving employment at the time was 15 later restricted, but the requirement remained to leave employment. In Weathersfield Ltd v Sargent [1999] IRLR 94, an employee was instructed by a senior employee that when considering hiring a vehicle to a customer she was to tell 'any coloureds or Asians' that no vehicles were available. She felt resigned without stating any reason at that time. Shortly afterwards however 20 she wrote to the employers giving her reason for the resignation that instruction. In the Court of Appeal Lord Justice Pill stated: “I reject as a proposition of law the notion that there can be no acceptance of a repudiation unless the employee tells the employer, at the time, that he is leaving because of the employer's repudiatory conduct. Each case 25 will turn on its own facts and, where no reason is communicated to the employer at the time, the fact finding tribunal may more readily conclude that the repudiatory conduct was not the reason for the employee leaving. In each case it will, however, be for the fact finding tribunal, considering all the evidence, to decide whether there has been an acceptance. Acceptance of a repudiation of a contract of employment will usually take the form of the employee leaving and saying why he is leaving but it is not necessary in law for the reason to be given at the time of leaving.”[53]The basic requirements under the Western Excavating case include that the employee leave employment. Lord Justice Denning said this: “the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”[54]It is a combination of the breakdown of trust and confidence on account of a fundamental breach of contract by the employer, acceptance of that by the employee, and resignation from employment as a result without delay, that constitutes constructive dismissal.[55]I have concluded from a review of the authorities that where a claimant seeks 15 to argue that there has been such damage to trust and confidence that there is a dismissal, that requires the employee to resign from employment by the employer which involves communicating that resignation to the employer. I consider that the claimant has not proved that she did so. There are a number of reasons for that –(i) The date she gives is 10 September 2018. But on that date she sent the latest fit note, which is an act consistent with the contract continuing, not ending.(ii) Dr Wassall replied on 15 September 2018, in terms that were not appropriate, but the claimant did not respond to that soon afterwards, to 25 use Lord Denning’s word.(iii) When the claimant did reply, on 7 November 2018, she did not say anything either specifically or by implication that she regarded the employment as ended. She did the opposite. Firstly she sent another fit note, which is another act consistent with the contract continuing. Secondly and more tellingly she made reference to what she described as her duty “as an employee”. Those words can only be consistent with her continuing to be an employee. Finally the claimant asked if there were any issues, which is consistent with the employment continuing not with its termination. There is therefore nothing in the letter of 5 7 November 2018 that supports the claimant’s assertions, and it is evidence that strongly tells against her arguments.(iv) The claimant was not able to provide any other evidence to indicate resignation or termination of employment. She did not ask the respondent if they had dismissed her, but said that she assumed that 10 they had from what was alleged to be their silence. That assumption however is not sufficient, and was in any event wrong as that was not what the respondent intended.[56]I have concluded that the claimant did not communicate any resignation to the respondent. Whilst she may have thought that what was happening was wrong, 15 or unfair, or repudiatory in law, on which she had a basis to do so not least as the respondent had not obtained independent medical evidence to support its own view that the claimant was fit for some work in contrast with the expression of opinion by the GP on the fit notes, thinking that by itself does not achieve anything in law. Unless there is acceptance of repudiation communicated to 20 the employer which brings the contract to an end, the employee is deemed to have acquiesced in any repudiation, and the contract continues.[57]That communication of acceptance of repudiatory conduct to bring the contract to an end is necessary for a number of reasons. Firstly, each party requires clarity on whether or not someone is an employee. If their relationship in law is 25 to end, that needs to be clear to both as there are duties which apply under both civil and criminal law (for example to have employers’ liability insurance). Secondly, the date of termination of employment is important. That is both for practical purposes including issuing a P45, but also jurisdiction purposes for a Tribunal claim, as that claim must be commenced within a period of three 30 months by starting early conciliation. Whilst in this case the issue is not directly relevant as the early conciliation commenced on 28 November 2018 within three months of 10 September 2018, more generally it can be crucial. Thirdly, the date given in this case, 10 September 2018, bore no relation to the reality of what was happening. It was simply the date on which an email was sent with a fit note, and that is an act consistent with employment continuing, a factor referred to in Spencer. As the letter of 7 November 2018 was not sufficiently 5 clear to amount to acceptance of repudiation no date could be given even if there was hypothetically a termination. An employee is entitled to leave at once in such a situation, but can also give notice. That was entirely absent from that letter. If it is impossible to identify a date for termination on a proper basis, there cannot be a termination effective in law in my opinion.[58]For completeness I add that although the claimant did not make a claim that the respondent had dismissed her itself, by their own act, I was entirely satisfied that it had not done so. There was at no stage any basis to conclude that the respondent had made any comment or action from which dismissal could be inferred. The respondent throughout acted on the basis that the 15 claimant remained an employee, and would be in a position to return to work when she wished to do so, this being a zero hours contract in which the claimant had the right to decide whether or not to work. Whilst the conclusion as to the fitness for work has been addressed elsewhere in this decision, the respondent was at least genuine in its belief on that matter.[59]The conclusion therefore is that the claimant was not dismissed, and as a result its fairness or otherwise does not fall to be addressed. (iii) Breach of contract[60]That analysis applies both to the issue of dismissal, and to termination of contract under the law of contract. I consider that there was no evidence of 25 acceptance of repudiation being communicated to the employer. I therefore conclude that the contract of employment was not terminated. (iv) SSP[61]I have concluded that I do not have jurisdiction to consider the claim in relation to SSP. Firstly, as there has been no termination of employment I cannot consider it as a breach of contract claim as such a claim can only be made in Tribunal where the contract has terminated under Article 3 of the Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994.[62]Secondly I considered whether I could address it as an unlawful deduction from wages claim under Part II of the Employment Rights Act 1996. Statutory sick 5 pay is included within the definition of wages in section 27. I have concluded that I do not have jurisdiction as that claim must be taken within three months of it arising under section 23 of that Act. The SSP entitlement ended by the end of April 2018, as it lasts for up to 28 weeks, and although the precise commencement of absence was not clear, it must have led to SSP terminating 10 by the end of April 2018 at the very latest. Early Conciliation was started on 28 November 2018. That is therefore about four months late. There is no evidence that would entitle me to hold that it was not reasonably practicable to have started Early Conciliation within the three month period ie by the end of July 2018 and I note that the claimant sought assistance from the CAB in 15 February 2018. In light of that I do not have jurisdiction to consider such a claim. In any event, in order to fall within wages under section 27 the sum must be properly payable. The decisions to date made by HMRC on whether or not the proper amount of SSP was payable are that the claimant’s appeals failed. There is therefore no basis on which I could make any finding, save that in 20 relation to the sum awarded, on which the respondent was informed that it was not due for payment until the appeal process was exhausted.Conclusion
[63]The Claim made before me must be dismissed.[64]The result is that the claimant is still an employee of the respondent. There 25 may be issues to be resolved in light of that, and I make no comment on them lest they return to the Tribunal save to express a hope that the parties may be able to reach an agreement after the hearing made each side more aware of why events unfolded as they did, or where there may have been misunderstandings.[65]For the avoidance of any doubt however my decision does not prevent the claimant pursuing any matter she wishes to in relation to SSP, by the further appeal referred to in another forum or by separate action in court, nor does it prevent separate Tribunal proceedings for other issues if they arise.