Mrs L Murray v Astley House Nursing Home Ltd: 4106610/2024
JUDGMENT
It is the unanimous judgment of the Tribunal that:[1]The claimant was unfairly dismissed, and the respondent is ordered to pay to the claimant a basic award of £2574 and a compensatory award of £20,462.19 net.[2]The claimant was wrongfully dismissed, and the respondent is ordered to pay to the claimant notice pay of £1580.48 net.[3]The respondent made unauthorised deductions from the claimant’s wages of £2497.95 and is ordered to repay that sum to the claimant.[4]The recoupment provisions apply to the compensatory award; the prescribed element is £9981.09 and the prescribed period is 3 August 2024 to 3 February 2025.REASONS
[1]The claimant lodged a claim on 2 September 2024 claiming that she had been unfairly dismissed, wrongfully dismissed and that the respondent had made unlawful deductions from her wages. The respondent’s position was initially that the claimant had been fairly dismissed for gross misconduct, that she had not been wrongfully dismissed and that a payment of £2,497.95 had been deducted from the claimant’s wages in respect of unauthorised hours.[2]The claimant had worked as an administrator for the respondent at a residential nursing home in North Berwick. This was one of six homes owned by a group company.[3]At the commencement of the hearing the Tribunal established that the claimant was seeking the sum of £2,497.95 which she said had been deducted from her wages unlawfully. Her claim form had suggested she may be seeking other sums, however that matter had since been resolved and this was the only sum being sought in addition to the unfair dismissal claim.[4]The Tribunal heard evidence from Ms Steele, who was the Manager of the Home in which the claimant worked, Ms Chohan, the director and sole shareholder of the respondent and group companies; Ms Duffy who dismissed the claimant, Ms Walsh who dealt with the claimant’s appeal and Ms Ergun, who was based at the respondent’s group headquarters and administered the payroll for the group companies. Evidence was given in person, other than in respect of Ms Ergun who gave evidence remotely. Due to technical difficulties in the end her evidence was given by telephone rather than video which was somewhat unsatisfactory. The claimant gave evidence in person. A joint bundle of documents was produced and both parties made submissions at the conclusion of the evidence. Issues to be determined[5]The Tribunal was required to determine the following issues: i. Was the respondent entitled to terminate the claimant’s employment without notice? ii. Did the respondent dismiss the clamant for a potentially fair reason? iii. If so, did the respondent act reasonably in treating it as a sufficient reason for dismissing the employee? iv. If the claimant was unfairly dismissed what compensation should be awarded to her? v. Did the respondent make an unauthorised deduction from the claimant’s wages? Findings in fact[6]Having listened to the evidence, considered the documentary evidence to which reference was made and the submissions of the parties, the Tribunal found the following material facts to have been established.[7]The respondent operates a residential nursing home for elderly people. The home is one of six homes owned by the group company, Pepperwood Care Limited of which Ms Chohan is the sole director and shareholder.[8]Between 40 and 54 staff are employed in the Home in which the claimant worked and around 450 staff are employed in the group company.[9]The claimant commenced work with the respondent as an Administrator on 6 January 2019 and was initially paid £11 per hour. Her pay increased over the period of her employment to £13 per hour.[10]The respondent operated a fob system of clocking in and out. The claimant had not previously used such a system in prior roles. A paper system was also used whereby staff were required to sign in and out of the building.[11]The claimant’s hours of work were 35 hours a week and she worked from 8am to 3pm Monday to Friday.[12]The claimant signed a contract of employment on 10 January 2020. That contract stated at clause 17: “The company may require you to perform a reasonable amount of work in addition to your normal hours of work, depending on the needs of the business. Any over-time hours have to be pre-approved by your line Manager.”[13]The claimant also signed a job description on that date.[14]The respondent has a staff handbook, which is available for staff to read on the premises. The disciplinary procedure in that handbook indicates that dismissal will be the sanction on the first instance of gross misconduct and that the authority to dismiss a member of staff lies with “Home Manager/ a Director/ Operations Manager”. No information was provided to the Tribunal regarding what might constitute gross misconduct in the respondent’s procedures.[15]During the pandemic, the claimant was required to work additional hours on a regular basis as the volume of administrative work increased substantially during that period. The claimant was paid for all additional hours worked. Prior to that period, when the claimant’s recorded hours were in excess of her contractual hours, her hours were ‘snapped back’ to her contractual hours unless they had been authorised by her manager or head office.[16]The respondent uses a software package called ‘CoolCare’. This package was used to record staff hours of work and financial information in relation to residents in the homes.[17]One of the claimant’s duties was to submit information regarding hours worked by staff to head office who would then approve payment of wages. The claimant was required to check that staff had worked their contractual hours and if they had worked more than the contracted hours without authorisation, she would ‘ping back’ the hours on the system so that no additional payment was made to staff.[18]The claimant was not able to ‘ping back’ her own hours or those of the manager or deputy manager of the Home. She did not at any time alter the hours recorded by her, her manager or deputy manager. While an upgrade of the system did technically allow for the claimant to make alterations to the timesheets of herself, the manager and deputy manager, the claimant was informed she should not amend these timesheets and did not do so.[19]There was a difference between hours being ‘pinged back’ which was a manual process and ‘snapped back’ which was an automatic operation of the system in certain circumstances.[20]On 9 March 2022, Ms Chohan sent an email to the claimant and Ms Steele as follows: “Hi Lynn/Kirsty We are in the process of reviewing timesheets etc. We recognise the extra work that was required during COVID etc. but as this is now more settled could you please revert back to the 35 hours/week contracted hours. Could I kindly request that any additional time will need to authorised by Kaira [Ergun] – i.e. email sent to her as you would have done when we had CoolCare3. As per CoolCare3 requirements, no adjustments should be made to your own timesheets. i.e. Kirsty/Lynn/Soniya. This rule still applies to all homes.”[21]Ms Steele responded later that day as follows “Hi Jai, that’s fine we won’t change our times. Please note that Soniya’s hours do need altered at source as her times are different to the other nurses. Kind regards Kirsty.”[22]On 5 May 2022, Ms Chohan sent an email to Ms Steele “Hi Kirsty, Please keep an eye on Lynn’s hours – we must keep her at the 35 hours/week, Kind regards Jai.” Ms Steele did not at any stage thereafter monitor or otherwise check the claimant’s hours. There was no discussion with the claimant regarding the hours she worked after the email of 9 march 2022.[23]A number of emails were sent by Ms Steele to Ms Ergun, on 9 May, 12 May, 31 July and 1 December 2022 regarding the claimant’s hours. The claimant was not copied into those emails. On 1 December, an email to Ms Ergun stated “Please clock Lynn out on 29th at 4pm as she went shopping for us on way home”. On 14 May 2024 Ms Steele sent an email stating “Please add 1 hour for Lynn on 7th as she clocked out and then went to our new residents husband to sign off the new contract.” These emails were not provided to the claimant at the time of them being sent or during the disciplinary process.[24]In June 2024, the deputy home manager raised an issue with Ms Steele regarding the claimant. The claimant had taken her cat to the vet and the deputy manager wished to check whether Ms Steele had given authority for the claimant not to clock out when she went to the vet. Ms Steele then raised this issue with Ms Chohan when she next saw her. As a result of this conversation, Ms Chohan looked at the claimant’s timesheets and became aware that the claimant had been working more than her contracted hours.[25]Ms Chohan instructed the claimant’s hours for June 2024 pay period to be pinged back to her contracted hours. She did not discuss this with the claimant in advance of issuing the instruction. The claimant called Ms Steele on 19 June 2024 and said that her hours had been pinged back for the pay run. Ms Steele said she was not aware of what was happening and that the claimant’s hours must have been returned to her contracted hours. Ms Steele was aware that Ms Chohan was looking at the claimant’s timesheets following the discussion she had with her but did not mention this to the claimant.[26]On 21 June, Ms Chohan phoned the claimant from her mobile phone. She told the claimant that she was investigating allegations against the claimant in relation to “Unauthorised additional hours processed on your personal timesheet, alleged fraudulent activity and falsification of your personal timesheet/hours, and alleged misuse of trust in your role as administrator not alerting HeadOffice/Line Manager of hours above your contracted hours on timesheet.” It was Ms Chohan herself who formulated these allegations and decided that action should be taken in relation to them.[27]The claimant could not hear everything Ms Chohan said on the call because of the reception and the claimant was shocked at the allegations being made against her. She was given no notice of the phone call or that she would be required to attend an investigatory meeting. Notes of the call were taken by Ms Duffy, who is Ms Chohan’s PA and also a Business Services Manager for the group.[28]During the call, which lasted 15 minutes, the claimant said she not touched her timesheets and she couldn’t check any information about her hours as she couldn’t access the CoolCare system. In fact, the claimant had been locked out of the system by this stage on the instruction of Ms Chohan. The claimant was informed at the end of the call that she was being suspended from work and that she should hand her keys to Andy, who was a maintenance employee. At the end of the call, Andy appeared in the claimant’s office and escorted the claimant out of the building and took her keys from her. The claimant was told by Ms Chohan that she should not speak to any colleagues and that these were serious allegations of “fraudulent activity on timesheets and possible mismanagement of company finances/budgets”.[29]On 24 June, Ms Steele made a written record of what she believed had been said on the call with the claimant on 19 June suggesting the claimant had said “I know I don’t have a leg to stand on with these hours but I am due 1.5 hours for attending a funeral.”[30]Ms Chohan appointed Ms Duffy to conduct a disciplinary hearing in respect of the claimant. Ms Duffy is not a Home Manager/Director or Operations Manager. It was Ms Duffy who took the notes during the phone call with the claimant on 21 June. Ms Duffy is responsible for all HR matters in the group company and reports directly to Ms Chohan.[31]A letter was then sent to the claimant dated 21 June which was signed by “Peninsula HR Services”. The letter confirmed the claimant’s suspension and repeated the details of the allegations made against the claimant during the phone call that day which had been formulated by Ms Chohan.[32]The letter required the claimant to attend a disciplinary hearing on a virtual call on 28 June. The letter set out that the hearing was to discuss “the following matter of concern: Taking part in activities which cause the company to lose faith in your integrity, namely….” The letter went on to set out various periods of time between 20 June 2022 and 19 May 2024 where the claimant was said to have worked additional hours. The letter included the “witness statement” from Ms Steele dated 24 June, an extract from CoolCare system which set out weeks during the relevant period and the total number of hours worked by the claimant in those weeks, the minutes of the investigation (which consisted of a note of the phone call of 21 June) and a copy of the email of 9 March 2022 from Ms Chohan to the claimant and Ms Steele. The letter also said that a copy of disciplinary procedures and rules was enclosed. However, all that was enclosed was an extract from the policy and not the document set out in the employee handbook. The letter stated that “if these allegations are substantiated, we will regard them as gross misconduct.” and “If you are unable to provide a satisfactory explanation for the matters of concern set out above, your employment may be terminated in accordance with our disciplinary procedure”.[33]The claimant sent an email to Ms Duffy on 26 June indicating she would attend the meeting, that she was waiting on the delivery of a hard copy of the documents referred to in the letter and that she would have preferred an inperson meeting.[34]There was no response to the claimant’s preference for an in-person meeting and there was no good reason why the meeting could not have been in person. The meeting was held remotely for the convenience of Ms Duffy who works from home.[35]Neither Ms Chohan nor Ms Duffy conducted any investigations into the hours worked by the claimant or the allegations against her prior to 28 June or indeed at any time, other than printing out extracts of time sheets and obtaining Ms Steele’s note of a phone call with the claimant the content of which did not address the allegations.[36]A disciplinary hearing took place on 28 June. It lasted 30 minutes. The claimant was not accompanied at the hearing. Ms Duffy was accompanied by a note taker. The reason advanced for not having a face-to-face meeting was given as the “sensitive and serious nature of the information we are going to discuss”. There was no explanation given as to why this required a remote rather than face-to-face meeting and this was not the real reason for a remote meeting taking place.[37]At the beginning of the hearing the claimant said that she had her own notes prepared for the hearing. She was not given an opportunity to read out those notes. Instead, she was asked a series of questions. The claimant said she didn’t do her timesheets and that these were done by head office. She said she had difficulty hearing Ms Chohan on the call on 21st June. She offered to pay back any hours which she had been paid for which were not authorised.[38]The claimant said “I have things to say about why I am here”. She was not given an opportunity to say what she wanted to say. In relation to an allegation that the claimant had increased her hours after a period of annual leave, the claimant said “she had done this to make up her time and had run this past Kirsty”. The claimant also said “I have personal things going on as well as work issues. Kirsty thinks I may be struggling with Depression.” The claimant repeated on a number of occasions that she had not done anything to change her hours. She also stated “Its been difficult since Kirsty reduced her hours, then having 2 different Managers and Margaret last year. I stay to help Sonya.”[39]Ms Steele had been working on a part time basis for over 2 years. Two separate recruitment exercises had been carried out to appoint a manager to job share with Ms Steele. Neither appointment had been successful and both individuals left employment after a short period of time. Thereafter the deputy manager acted up to assist the Manager in her role. All of this resulted in an additional burden being placed on the claimant and an increase in her workload.[40]The claimant was recorded as stating “she had not had a proper chat [with Kirsty and Sonya] that she was helping a lot with the kitchen, with ordering and even cooking on occasion – house-keeping etc. none of this was deliberate. She is struggling with the workload which is heavy and with the difficulty with staff in the home – everything is done with on the computer. My first thought is to pay it back – it is not my intention to take money I don’t deserve.”[41]Ms Duffy did not take any steps to investigate any of the issues raised by the claimant during the course of the meeting.[42]A copy of the notes of the meeting were sent to the claimant on 1 July. The claimant was asked to indicate if she was satisfied that the notes were a true record of the meeting.[43]The claimant responded saying “As I explained at the start of the meeting given I was really struggling with being ill with worry I had written some notes as my head wasn’t clear which I wanted to read from. I did start to but understandably you wanted to go through the points of the meeting and I feel I didn’t get the chance to go back to what I wanted to say from my notes, so I have pasted these notes below. I also think I said in connection with Kirsty’s statement that it didn’t sound like something I would say. The meeting again was a bit of blur for me and I wasn’t as articulate as I would normally be, however I trust the minutes are a fair reflection of what was said.” The claimant went on to make various points regarding the allegations against her. The claimant’s email was not acknowledged by Ms Duffy and no investigation was carried out in relation to the points raised by her in the notes.[44]The claimant was dismissed with immediate effect and without payment in lieu of notice by letter dated 3 July. The letter did not make any reference to the notes the claimant had provided after the disciplinary hearing. These notes were not taken into account prior to the decision to dismiss the claimant. The letter made reference to each of the allegations against the claimant and noted what the claimant had said at the disciplinary hearing in response. Although the letter stated that a lesser sanction had been considered, that was not in fact the case. Ms Duffy indicated in evidence before the Tribunal that she did not consider a lesser sanction and the Tribunal accepted that evidence. Ms Duffy in reaching her decision did not give consideration to the claimant’s length of service or clean disciplinary record. There was no investigation carried out into any of the points raised by the claimant.[45]The letter also made reference to what was said to be an extract from the Employee Handbook which stated “any loss to us that is the result of your failure to observe rules, procedures or instruction, or is a result of your negligent behaviour or your unsatisfactory standards of work will render you liable to reimburse to us the full or part of the cost of the loss; and in the event of failure to pay, we have the contractual right to deduct such costs from your pay”. This extract was not provided to the claimant at any time and was not produced before the Tribunal. The letter went on to say “Any monies that you have been paid for unauthorised hours will be deducted from your final pay, and if the monies are still outstanding after deductions have been made, you would need to pay these back to the company, no later than 4 weeks from the date of termination.”[46]The claimant was informed in the letter of dismissal that any appeal should be sent to Mandy Thomson, Pepperwood Care Ltd within 5 days of receipt of the letter. There was no explanation as to who Mandy Thomson was and the claimant did not know who she was or her role in the company.[47]The claimant sent an email on 9 July appealing against her dismissal. She asked for a “complete breakdown of the time you are seeking reimbursement for as soon as possible”. No breakdown was provided at any stage. The claimant also set out details of the belongings she sought to have returned. These had not been returned by the appeal hearing.[48]The claimant sent an email to Ms Chohan on 12 July in relation to a letter dated 9 July requiring her to attend an appeal hearing in Broxburn on 16 July. The claimant indicated that she could not attend that date as could not find anyone to accompany her and was seeking further advice.[49]The claimant sent a further email on 15 July to Ms Chohan stating “Given I have no way of checking all the dates going back so long that have been processed (and not questioned by head office) as I have no access to anything that would assist me in the process, I can only respond on the following until I seek further advice…”. The claimant then went on to give some explanation as to a number of occasions when she had worked additional hours and the circumstances surrounding that. The content of this email was not investigated by anyone and the email was not provided to Ms Walsh who ultimately heard the claimant’s appeal.[50]A letter was sent to the claimant on 15 July from Ms Thomson to the claimant indicating that she would now be unable to hear the appeal and that an appeal hearing would take place on 23 July at Broxburn Care Home and be heard by Christine Walsh. There was no explanation as to the position of Ms Walsh, whom the claimant did not know. The letter stated that if the claimant did not attend, the hearing would go ahead in her absence. It also stated that if the claimant preferred to attend virtually, she was required to let Ms Thomson know by 18 July. The email contact details for Ms Thomson were at all times ‘info@pepperwoodcare.co.uk’ and not a personal email address.[51]The claimant sent an email (which was undated in the productions) stating “As I am extremely anxious and uncomfortable about going to the Home, and the thought of it has added to my poor mental health state, I would request that the appeal meeting be carried out virtually via videolink”.[52]The claimant sent a further email on 17 July asking that she be able to join the hearing remotely from her home.[53]The hearing took place on 23 July. The claimant was required to attend the North Berwick home in person to participate in the meeting despite her requests to take part remotely from her own home. Ms Walsh participated in the meeting remotely from Broxburn and was accompanied by a note taker. The claimant was accompanied by a colleague. No efforts were made to explore how Ms Walsh could attend in person and the claimant was not permitted to attend remotely from her home. Ms Walsh did not wish to attend the Home in North Berwick as she was being required to take time out of her day to deal with the appeal and was busy and as she only drives locally, it would take a few hours out of her day. The arrangements for the appeal hearing were for the convenience of the respondent and had no regard to the claimant’s position. Ms Walsh regarded the requirement to deal with the appeal as an imposition on her.[54]The appeal hearing lasted for 20 minutes. Ms Walsh was of the view that she had no power to carry out any investigations in relation to the issues raised and could only consider the appeal on the basis of the documents which had been provided to her. Ms Walsh had been provided with the letter requesting the claimant attend the disciplinary hearing, the enclosures with that letter and the dismissal letter, notes of the disciplinary hearing and the claimant’s letter of appeal. She was not provided with any other documentation and did not believe she could ask for other documentation.[55]The claimant’s appeal was dismissed in a letter dated 24 July. The letter did not address the claimant’s grounds of appeal in any meaningful way. For instance, the claimant had stated she did not think one witness statement was sufficient to address allegations covering a two-year period. Ms Walsh’s response to that point was “I can make no comment on what you think.” The claimant had said that her query as to why her hours had been authorised over the period without question had not been answered. In response Ms Walsh stated “I cannot give any information on why you feel this query has not been answered.”[56]The letter dismissing the claimant’s appeal went on to state “You are required to cooperate with the Director regarding her request for information regarding the Treasury account and the cashing of cheques. Your belongings which are still at Astley house will be packed up and forwarded to you when you have complied with this request.”[57]The sum of £2050 was deducted from the claimant’s final month’s pay under the heading “overpayment”. The claimant was not paid in lieu of her holiday entitlement in her final month’s pay and this was paid in a payslip dated 30 August. £447.95 was deducted from that pay under a heading ‘Overpayment’. No details were provided to the claimant of how these sums had been calculated or whether any tax or national insurance had been refunded in respect of the deductions. A P45 was issued to the claimant giving an incorrect leaving date of 30 August 2024. No explanation was given to the claimant in this regard.[58]The claimant has made strenuous efforts to obtain alternative employment since her dismissal without success.[59]The respondent provided the claimant’s agent with a detailed breakdown of the claimant’s hours worked on a daily basis from 3 January 2024 until her dismissal in the weeks before the final hearing. No explanation was proffered by the respondent as to why this information was not provided previously or why it was not provided in respect of the earlier periods of time which formed the basis of allegations against the claimant. Observations on the evidence[60]The evidence in chief of the respondent’s witnesses was very brief. The respondent’s witnesses were asked very few questions and made only passing reference to the documents in the bundle. Their evidence, so far as it went was generally credible and reliable. There was no evidence led by the respondent whatsoever in relation to the claimant’s claim of unlawful deduction from wages. The Tribunal found this to be surprising. The Tribunal found the claimant to be both a credible and reliable witness.[61]There was some dispute over whether the claimant had said to her Manager, Ms Steele that she “didn’t have a leg to stand on” in relation to some of the hours she had worked. The claimant’s position was that this did not sound like something she would say, but that she couldn’t remember the conversation well. The Manager did not take a contemporaneous note of the conversation and provided a statement in relation to the conversation five days later. By that stage the Manager was aware that there were issues in relation to the claimant’s timesheets which were being investigated and the Tribunal formed the view that this was likely to impact on Ms Steele’s recollection of the conversation. The Tribunal also noted that when the claimant indicated she did not recollect saying this phrase, the respondent did not go back to Ms Steele in order to clarify what her recollection of the conversation was. The Tribunal concluded that while the claimant may have said something about hours worked she did not say anything which might suggest that she knew she should not have been paid for any hours worked.[62]The evidence regarding the respondent’s CoolCare system was confusing. It appeared to the Tribunal that there was no consistent use by the respondent’s employees of the relevant terminology of ‘pinged back’ and ‘snapped back’. There was no evidence about any training given to the relevant staff regarding the system. There was confusion over whether the claimant was able to alter the hours were which recorded when she fobbed in and out of the premises. The Tribunal concluded that the claimant could not alter these hours. She was explicitly instructed not to do so. The claimant’s hours could only be altered at Head Office. While there was suggestion made in evidence by both Ms Chohan and Ms Ergun that they could not be expected to check the hours of all staff, that was a misleading position to take. The hours of staff who were not management were all checked by administrators in the various homes. The only hours not checked in each home were the hours of managers and the administrators. In addition, Ms Walsh gave evidence that as a manager who worked full-time, she was paid a salary so it didn’t matter what hours she worked. There were therefore only very few (less than 12) employees whose hours were not checked at source in the Home in which they worked. Submissions[63]The respondent’s solicitor made very brief submissions. The respondent’s position was that the claimant had not been able to provide an adequate explanation for working hours which had not been authorised, that she was in a position of trust and that as the respondent viewed that trust to have been broken, dismissal was a reasonable response otherwise the respondent could have appeared weak to other employees and encouraged similar behaviour. It was also suggested that while the claimant had appealed against her dismissal she had not specifically stated in her grounds of appeal that she viewed the sanction of dismissal to be too harsh. Although Mrs Singh accepted that no evidence had been led by the respondent to suggest that the claimant had failed to mitigate her losses, it was suggested that the Tribunal should not award more than three months’ loss of earnings if the claimant had been found to be unfairly dismissed. It was also suggested that the offer of the claimant to repay any sums to which the respondent did not believe the claimant was entitled was strange if the claimant had made an honest mistake as was suggested by her.[64]Mrs Singh conceded that there had been deviation from the respondent’s disciplinary procedure in relation to the claimant’s dismissal (although she did not elaborate on this) and also that there had not been compliance with the ACAS code of practice.[65]However, she suggested that had a fair procedure been followed the claimant would have been dismissed in any event. In addition, it was suggested that the claimant had contributed 100% to her dismissal. It was said that in respect of the ACAS code an uplift of 10% would be reasonable. The respondent denied the claimant had been wrongfully dismissed (but did not make any submissions on this point).[66]As no submissions were made at all on the issue of unlawful deduction from wages Mrs Singh was asked if she had anything to say on that point. Initially Mrs Singh seemed unsure as to whether this claim was being advanced. It was pointed out that this matter had been clarified prior to the commencement of the hearing as had the sums sought. Mrs Singh indicated she would have to take instructions on the issue, but by this point her clients were no longer present. She went on to suggest that there was a provision in the claimant’s contract which allowed for deductions of overpayment of salary. She accepted however, that this provision had not been put to the claimant and that no evidence whatsoever had been led on the issue of the deductions.[67]On behalf of the claimant, it was submitted that there was nothing in the employment contract of the claimant which entitled the respondent to dismiss her without notice. It was highlighted that the respondent’s full disciplinary procedure had not been produced and that Ms Chohan had been unable to answer whether there was anything in that procedure regarding working hours which had not been authorised in advance. Therefore, it was said that the claimant was entitled to notice pay.[68]In terms of the unfair dismissal claim, it was said that the dismissal was both procedurally and substantively unfair. The claimant was not given sufficient information to answer the allegations against her, there was no evidence of fraudulent conduct by the claimant, the claimant had promptly offered to pay back any monies received by her to which she was not entitled. She had tried to give some reasons for some of the additional hours worked by her, but the respondent did not listen to her explanations. It was said the appeal hearing was simply a box ticking exercise. It was said that there was no suggestion that the claimant had not worked the hours recorded by her, there was simply no falsification and no fraud. The claimant had been of the view that she would not have been paid for additional hours if head office did not deem her to be entitled to such payment.[69]It was accepted that the claimant had not in relation to some of the hours worked, obtained authorisation in advance of those hours and therefore she could have been said to have contributed to some extent to her dismissal, but that any reduction in compensation for contribution should be minimal. It was said there should be no Polkey deduction and that the claimant should be awarded a year’s loss of earnings. In terms of the unlawful deduction from wages claim, it was said that it was a matter for the Tribunal to determine whether the deductions were lawful.Relevant law
[70]Section 13 Employment Rights Act 1996 (‘ERA’) provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision in the worker’s contract or the worker has previously signified in writing his agreement or consent to the making of the deduction. Section 14 goes to provide that section 13 does not apply to deductions where the purpose of the deduction is the reimbursement of the employer in respect of an overpayment of wages.[71]Section 98 of ERA sets out the potentially fair reasons for dismissal. These include conduct and some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Discussion and decision Wages claim[72]The Tribunal first considered the wages claim brought by the claimant. Two deductions had been made from the claimant’s wages. £447.95 was deducted from the payslip of 30 August and £2050 was deducted from the payslip of the 26 July 2024.[73]There was no evidence led before the Tribunal in relation to a breakdown of how these sums had been calculated. There was no evidence whether tax, national insurance or pension payments had been recalculated to account for the deductions. The entries on the payslips simply stated ‘overpayment’. There was no evidence led that there had been any investigation into the particular hours worked by the claimant and whether the claimant was entitled to be paid for these hours. There was no dispute that the claimant had worked these hours and been paid every month between March 2022 and May 2024 for the hours recorded as being worked by her. The claimant had suggested that some hours which were worked by her were to make a period up for time when she was off sick and this had been run past her manager. In addition, she suggested some were before and after periods of annual leave and were to prepare for her absence and to catch up with required work on her return. There was no evidence that the respondent had investigated these matters.[74]The Tribunal will not have jurisdiction to determine a claim of unlawful deduction from wages where the deduction has been made by an employer to recover an overpayment of wages. While this point was not raised by the respondent, the Tribunal was obligated to give consideration to it given it goes to the question of jurisdiction. Key Recruitment UK Ltd v Lear [2008] 2 WLUK 585 is authority for the proposition that for an overpayment to arise the employee must not have been entitled to the payment at the time it was paid. A payment of wages to which an employee was entitled at the time payment was made cannot retrospectively become an overpayment.[75]In addition, in the view of the Tribunal, it is not sufficient for an employer to simply state, without more, that an overpayment has been made. An employer must provide details of the nature of the alleged overpayment as otherwise it would be impossible for a Tribunal or indeed the employee to determine whether the deduction was in fact in respect of an overpayment. Were an employer not required to set out the detail of an overpayment, then an employer could simply state that there had been an overpayment and provide no evidence of how the overpayment arose or how any sum deducted had been calculated and the Tribunal would have no jurisdiction to consider the matter.[76]Had the respondent led evidence for instance as to how it had calculated the sums deducted and the hours which had been worked to which they related, then it may be that the Tribunal would have determined that it had no jurisdiction in terms of section 14. However, no such evidence was led. None of the respondent’s witnesses gave any evidence about the how the sums were calculated, what period they related to or that there had been any investigation into whether there was authorisation for the claimant to have worked the hours.[77]In addition, this was not a case where an employee had been paid for hours which had not been worked by her. This was never suggested. The claimant did not amend timesheets or alter the hours she fobbed in and out of work. She had, and had been entitled to, believe that if she was not entitled to be paid the hours worked in addition to her contractual hours she would not have been paid for those hours. She was entitled to from the view that if the hours were not authorised she would not receive any pay in relation to them.[78]The respondent’s position appears to be that the claimant should have contacted Ms Ergun every month and told her to only pay her for her normal contracted hours even though she had logged additional hours. It would have been obvious to Mr Ergun or any member of management who looked at recorded hours or pay details that the claimant was being paid in excess of her normal hours on a regular basis. The claimant’s line manager had been instructed by Ms Chohan to keep an eye on the hours worked by the claimant, but did not do so.[79]It appeared to the Tribunal that the respondent had belatedly become aware that the claimant had continued to work additional hours after the COVID pandemic and been paid for them and that Ms Chohan was unhappy at this discovery. The Tribunal concluded that the claimant was entitled to believe that the additional hours had been authorised by head office when they were processed, and she was paid for them with no issues being raised. The deduction for ‘overpayment’ was therefore an unlawful deduction from the claimant’s wages and the respondent is required to reimburse the claimant for the unlawful deductions which have been made. Was there a potentially fair reason for dismissal?[80]The Tribunal was satisfied that the claimant was dismissed for a potentially reason being conduct. The respondent appeared to suggest an argument although no detail was given in submissions, that there was a breakdown in trust and confidence. The Tribunal took that to mean (although it was not expressed in terms) that the respondent was relying on an alternative reason of some other substantial reason in terms of a breakdown of trust and confidence. These are both potentially fair reasons for dismissal. However, the Tribunal concluded that the reason for the claimant’s dismissal was conduct and not some other substantial reason. It came to this view on the basis that there was no discussion with the claimant that the working relationship had broken down and no investigation into whether this was the case. In particular neither the claimant’s line manager nor the deputy manager of the home were asked for any comment on the issues. Was the claimant’s dismissal fair?[81]In the first instance, the Tribunal considered the procedure followed by the respondent in dismissing the claimant. In submissions, the respondent acknowledged that neither the ACAS code of practice nor the respondent’s own procedure had been followed, although it did not specify the specific aspects of the procedure which were said to be deficient.[82]In the view of the Tribunal the respondent failed to follow a fair procedure at every stage of the process. Moreover, these failures were not superficial or unimportant but rendered each stage of the process fundamentally unfair and outwith the range of reasonable responses open to an employer.[83]In the first instance, what the respondent termed an investigation meeting was in fact a phone call from the respondent’s Director of which the claimant was not informed in advance. The call lasted 15 minutes and the Tribunal accepted the claimant’s unchallenged evidence that she could not hear everything said on the call. In addition, the ‘note-taker’ at this meeting then became the dismissing officer.[84]The allegations put to the claimant during this call were that she had engaged in fraudulent activity and falsification. It alleged that the claimant had not alerted Head office to the claimant having worked hours above her contracted hours. The claimant was then asked about additional hours she had worked since January 2024 without providing specific details of what days or hours were being addressed while the respondent was aware that the claimant was locked out of the CoolCare system and would not be able to check her hours.[85]It was the Director of the respondent who was also the owner of the group company who framed the allegations against the claimant and decided action should be taken in relation to the claimant working additional hours. She was the most senior person in the entire organisation and then it was she who directed everyone else’s involvement in the process.[86]There was no investigation carried out in relation to the allegations. The claimant’s line manager and the deputy manager of the Home were not asked about the matter, even though the claimant had indicated that additional hours had been approved by them. There was no breakdown obtained which identified the particular days or hours worked by the claimant on specific days. There was no investigation carried out whatsoever. The respondent simply appears to have asked Ms Steele to provide a statement about a conversation which had taken place with the claimant some days before, when the claimant brought to her attention that she hadn’t been paid for all the hours she had worked.[87]The claimant was asked about an email sent some 2 years previously which stated that all additional hours had to be authorised by Kaira (Ms Ergun at head office) which the claimant acknowledged she had received.[88]The failure to investigate these matters in advance of any disciplinary hearing was fundamentally unfair. The failure to provide the claimant with sufficient information which might allow her to respond to the allegations was fundamentally unfair. In terms of the ACAS code the respondent failed to provide the claimant with sufficient information to allow her to prepare to answer the allegations against her. The detail of the additional hours worked by her was not provided to her and the respondent knew the claimant did not have access to the online system. There was no valid reason for the respondent failing to provide the claimant access to this information.[89]The letter confirming the claimant’s suspension dated 21 June was signed by Peninsula HR service. While that of itself was not a matter which rendered the claimant’s dismissal unfair, it was indicative of the respondent’s cavalier approach to the procedure in this regard. The Tribunal formed the view that the claimant’s dismissal was decided at early stage in the proceedings. It formed this view in part because of the cavalier approach to ensuring that any fair procedure was followed but also in that the person appointed to conduct the disciplinary hearing was not someone authorised to dismiss in terms of the respondent’s procedure, had attended as note taker at the ‘investigatory meeting’ and was the PA to the Director who had directed that action should be taken in the first place. While the Tribunal noted that Ms Duffy had other responsibilities in addition to those of being PA to the Director, she was subordinate to the Director.[90]In addition, despite the claimant indicating that she preferred to have an inperson meeting to discuss the matter, the respondent for reasons which were not at all convincing directed that the hearing should be remote. It appeared to the Tribunal this too was indicative of a decision having been taken and efforts being made to simply go through the motions of having a disciplinary hearing. The claimant received the invite to the meeting on 26 June and the meeting took place on 28 June. There was no investigation carried out in the meantime. The hearing lasted 30 minutes and the Tribunal accepted the claimant’s unchallenged evidence that she was not given an opportunity to put forward explanations she had prepared and was interrupted from doing so. When she subsequently sent those explanations in writing after the hearing, her correspondence was not acknowledged and there was no reference made to it in the letter dismissing the claimant. The Tribunal concluded that Ms Duffy did not consider the content of the email sent by the claimant. In addition, despite the claimant indicating during the meeting that Ms Steele had raised with her that she was concerned the claimant was suffering from depression and that the claimant had indicated she struggled to get work completed in advance of leave, no efforts were made to investigate these matters after the disciplinary hearing. The claimant also stated during the hearing that it had been difficult since Ms Steele had reduced her hours, as a result of various other staffing issues and that the claimant had been helping out in the kitchen and had been struggling with the workload. However, none of these matters were investigated.[91]Ms Duffy did not consider any sanction other than dismissal, nothwithstanding the suggestion that she did in the letter of dismissal. She did not give consideration to the claimant’s clean disciplinary record, length of service or that she may have been suffering from depression at the time. She gave no consideration at all to what may have been mitigating factors, such as the difficulties stated by the claimant regarding her inability to complete her work within her contractual hours or the failure of any manager to discuss her hours with her.[92]The letter of dismissal simply repeated what the claimant had been given the limited opportunity to say at the meeting and then stated that the claimant’s explanations were unsatisfactory as she knew she needed authorisation. There was no attempt by the respondent to address the claimant’s reasonable query as to why if the hours were not authorised they had not been “knocked back”. This request was repeated in advance of the appeal hearing and again no answer was given.[93]For all of these reasons the Tribunal found that the claimant’s dismissal was both procedurally and substantively unfair.[94]In addition, the Tribunal accepted the claimant’s position that the appeal was a box ticking exercise. Ms Walsh did not make any effort to arrange a meeting in person as she clearly believed it an imposition on her day to deal with the matter. There was no valid reason why the respondent could not have arranged for a meeting to take place in a neutral venue and certainly no good reason why the respondent required the claimant to attend the Home in North Berwick despite the claimant indicating that this would cause her additional stress. There was no reason why the claimant could not have conducted the meeting remotely from her home if an in-person meeting was not being arranged.[95]Moreover, Ms Walsh was of the view that the claimant would have to provide her with new information in order for the decision to be challenged. However, the claimant had not been given the details to allow her to respond properly and was given no answer to the question of why she continued to be paid for additional hours if they were not authorised.[96]In all of these circumstances the Tribunal concluded that the claimant had been unfairly dismissed. Wrongful dismissal[97]The respondent did not produce any disciplinary procedure which indicated that what the claimant had done entitled them to dismiss her without notice. In cases of wrongful dismissal the question to be addressed is not the reasonableness of the employer’s decision to dismiss but a factual question of whether the employee was guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract.[98]The Tribunal was satisfied that there was no such repudiatory breach established. The claimant clocked in and out. The respondent paid her for the hours she clocked in and out and did not suggest to her at any stage over a period of more than two years that the claimant was doing anything inappropriate. There was no evidence that the claimant had been dishonest in any way or intentionally disobedient. She did not hide anything from the respondent. The claimant was therefore wrongfully dismissed.Remedy
[99]Parties provided an agreed statement in relation to the claimant’s losses and agreed that the claimant had an ongoing loss of monthly net pay of £1580.48 in wages and an employer’s pension contribution of £49.66 per month.[100]The claimant has been out of work since her dismissal on 3 July. The Tribunal has determined that the claimant ought to have been paid notice pay and therefore her losses arising from unfair dismissal would commence on 3 August 2024. The claimant therefore has suffered six months loss of earnings to 3 February 2025. Including pension loss, that amounts to a monthly loss of £1630.14 and losses to 3 February of £9780.84 net. The Tribunal then considered whether to award compensation in respect of future loss. The Tribunal accepted that the claimant had difficulty in securing alternative employment. She had indicated that she was of the view that when she informed prospective employers of the circumstances of her dismissal from the respondent, that had caused difficulties for her. The Tribunal accepted that evidence. The Tribunal also accepted the submission made on the claimant’s behalf that the claimant’s age was a barrier to obtaining alternative employment. The Tribunal therefore decided that it would be just and equitable to award the claimant six months future losses, which amounts to £9,780.84 and compensation for loss of statutory rights of £500. Therefore a total compensatory award of £20,061.68 is made. Should there be a Polkey deduction?[101]The Tribunal considered whether had a fair procedure been followed the claimant might have been fairly dismissed. It came to the view that the lack of investigation was so fundamental and the fact that the process was initiated by the owner of the group and then carried out by people directed by her meant that the Tribunal could not be satisfied that had a fair procedure been followed the claimant might have been fairly dismissed. Therefore, there should be no reduction to the compensation awarded to the claimant on the basis of Polkey. Did the claimant contribute to her dismissal?[102]The Tribunal then went on to consider whether the claimant had contributed to her dismissal and whether any adjustments should be made to the compensatory award in that respect.[103]In the case of Nelson v BBC (No.2) 1980 ICR 110, CA, the Court of Appeal said that three factors must be satisfied if the tribunal is to find contributory conduct: the conduct must be culpable or blameworthy; the conduct must have actually caused or contributed to the dismissal, and it must be just and equitable to reduce the award by the proportion specified.[104]The Tribunal concluded that the claimant’s failure to raise the question of her hours with the respondent was to some extent culpable and that this had contributed to her dismissal. The Tribunal took into account that the claimant did not deliberately set out to mislead her employer in any way, but that as she did not see either Ms Chohan or Ms Steele very often, she had simply got used to her hours being approved. Therefore, while her conduct was blameworthy, this was at the lower end of the scale and the Tribunal concluded that it would be just and equitable to make an adjustment of 15% in terms of section 123(6) ERA to the compensatory award only. ACAS code uplift[105]The Tribunal then went on to consider whether there should be an increase in the compensatory award because of the respondent’s failure to follow the ACAS code of practice. As stated above, the respondent conceded that there had been a failure although did not set out the respects in which this concession was given. The Tribunal was satisfied that the failure to provide enough information to allow the claimant to answer the allegations against her and to carry out any investigations into the matter were significant breaches of the ACAS Code. In these circumstances, the Tribunal was of the view that there should be an uplift to the compensatory award of 20%. The Tribunal was mindful that while the Home in which the claimant worked only employed around 45-50 staff, the group company employed over 450 employees. This was not the case of a small employer with very limited resources where the failure to follow a proper procedure might be to some extent understood. It was also clear that the respondent had the benefit of advice, given that one of the letters to the claimant was written by Peninsula HR. The Tribunal was satisfied that it was appropriate to make an uplift of 20% to the claimant’s compensatory award.Conclusion
[106]The total compensatory award is there calculated on the basis of losses of £20,061.68 x 20% uplift for failure to follow ACAS code = £24074.02. That sum should be reduced by 15% for contributory conduct giving an award of £20,462.91.[107]The claimant was in receipt of universal credit following her dismissal and therefore the recoupment provisions apply.[108]The respondent is therefore ordered to pay to the claimant: Basic award £ 2574 Compensatory award £20,462.19 Notice pay £ 1580.48 Unlawful deduction from wages £ 2497.95 Total payable £27,114.62