Mrs CE Marsland v St Augustine’s Episcopal Church: 4106835/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4106835/2019

Venue Glasgow

Hearing 11 September 2019

Between

Mrs CE MarslandClaimant

St Augustine’s Episcopal ChurchRespondent

Before

Employment Judge M Sangster

Date 22 April 2022

JUDGMENT

The judgment of the Tribunal is that the claimant was an employee of Food for Thought, a Scottish Charitable Incorporated Organisation, operating under charity number SC047239 and whose address is St Augustine’s Community Hall, St Mary’s Way, Dumbarton, G82 1LL. They are substituted as respondent in the proceedings.

REASONS

[1]A preliminary hearing took place on 11 September 2019 to determine the identity of the respondent(s) and the employment status of the claimant.

[2]The claimant was represented by Mr Pace and Ms Morrison, of the Strathclyde 25 Law Clinic. Mr Pace spoke on behalf of the claimant throughout the hearing. The respondent was represented by Mr Grant, solicitor.

[3]The respondent maintained that the claimant was not engaged by them and the correct respondent should be Food for Thought, a Scottish Charitable Incorporated Organisation, operating under charity number SC047239 (FFT 30 SCIO).

[4]The respondent also maintained that the claimant was a self employed contractor, rather than an employee.

[5]The claimant gave evidence on her own behalf.

[6]The respondent led evidence from John Dyer (JD), a member of the respondent’s church, Reverend Kenneth McAuley (KM), Rector of the respondent until May 2019 and Reverend Liz O’Ryan (LO’R), Associate Rector of the respondent until February 2019.

[7]It is noted that each of the witnesses were also involved with FFT SCIO in the following respects:(i) KM was chair the committee of FFT SCIO until 11 November 2018;

(ii) JD volunteered with FFT SCIO during 2017 & 2018 and is the current chair of the committee of FFT SCIO, having been appointed on 11 November 2018; and

(iii) LO was a committee member of FFT SCIO until February 2019.

[8]During the course of the hearing, the respondent indicated that it was no longer disputing that the claimant was an employee, albeit that their position was that the claimant was an employee of FFT SCIO, rather than the respondent. Findings in fact

[9]The Tribunal made the following findings in fact, relevant to the issues to be determined.

[10]The claimant previously worked for Circle Scotland. Circle Scotland rented office space from the respondent, and the claimant shared an office with KM. During that time she also, on an ad hoc basis, helped the respondent with minor tasks. That role was made redundant in July 2015. Around that time, KM was developing an idea for a concept which he called Food For Thought (FFT). The mission of FFT was to provide food for the hungry. Given the claimant’s skills, KM asked if she would like to become involved in setting up and running that project. The claimant agreed and she started in the role of Coordinator for FFT on 10 July 2015.

[11]The role involved setting up a bank account for the project, arranging for the project to be set up as an unincorporated charity and registered with OSCR, arranging for the provision of emergency food aid, building a volunteer base and supervising those volunteers. Another key part of the claimant’s role was to secure funding for the provision of the food and the cost of her role, to ensure the project was self-funding. Without that funding, it was clear that the claimant would not be able to continue in the role beyond an initial period of 9 months.

[12]The costs for the project, including the claimant’s salary, were covered for the first 9 months by a grant of £15,000 from the Diocese. This was authorised by the Bishop who placed the following conditions on the payment of the grant:(i) That a contract for services, rather than an employment contract, was entered into with the Coordinator;

(ii) It should be set up as an independent charity, albeit remaining missionally connected to the respondent; and

(iii) An update on how the money had been utilised and progress in relation to future grant funding should be provided after 6 months.

[13]The grant was paid into the separate bank account which the claimant set up for FFT.

[14]FFT was registered with OSCR on 16 October 2015, under charity number SC046053. It was linked with the respondent, who were stated to be the parent charity.

[15]For the first 9 months, the claimant submitted an invoice for her agreed fee of £1,550 per month and was paid by cheque from the FFT account.

[16]The claimant was responsible for the day to day running of FFT. She reported to and took direction from the FFT committee, or the chair of that committee, KM. She worked regular hours, which were agreed with the FFT committee. She continued to work from the respondent’s premises and FFT paid rent to the respondent in respect of this. She provided formal reports the FFT committee on a monthly basis and for the AGM.

[17]The claimant also carried out adhoc duties for the respondent, such as answering the phone and taking messages (there was only one phone line into the premises and the majority of calls (around 95%) were for FFT, rather than the respondent), as well as assisting with administrative tasks. She had also done so during her employment with Circle Scotland.

[18]The claimant was successful in securing grant funding in the name of FFT and this was paid into the FFT bank account. In the applications for funding which she completed, in the name of FFT, she indicated, for example, that ‘funding is required to pay/help to pay for a vital full time worker who currently coordinates the project, trains the volunteers, liaises with outside agencies, applies for other funding, deals with publicity and supports the brief, intermediate and long term caseload. The wage for our coordinator is £23,000. Without the full time worker the project will not be able to operate.’

[19]In March 2016, towards the end of the initial 9 month period, the viability of the claimant’s position was reviewed to ascertain if it was viable going forwards. The FFT committee agreed that, as a result of the grant funding which the claimant secured for FFT, her role could continue. It was discussed and agreed with the FFT committee that the claimant would be paid a salary of £24,000, which was the amount she was paid in her previous role with Circle Scotland. From that point onwards the claimant was paid monthly, in arrears, without the need to submit invoices. The claimant arranged for the payment of her own salary, from the FFT bank account.

[20]The claimant was entitled to paid annual leave and was paid when off sick.

[21]At the start of 2017, as a condition to secure grant funding from the Scottish Government, the claimant arranged for the creation of Scottish Charitable Incorporated Organisation (SCIO) in the name Food for Thought. FFT SCIO was created on 15 March 2017. The respondent was again stated to be the parent charity. FFT SCIO was intended to replace FFT. The assets and liabilities of FFT were transferred to FFT SCIO on its creation. There was no change however to how the charity operated on a day to day basis.

[22]In October 2018, the claimant prepared a Coordinator’s Report to be presented at the AGM of FFT SCIO. This was sent in advance to the Committee of FFT SCIO and the AGM took place on 11 November 2018. In her report the claimant stated, ‘I would like to finish off by saying that it has been a privilege to hold this position for the past 12 months, within the most worthy wee charity in the shire and I am incredibly proud to be involved. I will be moving on in the next financial year to a new challenge and wish Food for Thought continued success.’

[23]RD became the new chair of FFT SCIO at the AGM on 11 November 2018. The claimant was off work due to illness at that time and he met with her during her absence, in his capacity as chair of FFT SCIO, to discuss the potential of her returning to work. They agreed that he would meet with the claimant on a monthly basis going forward. The claimant did return to work prior to Christmas and co-ordinated the charity’s operations over the Christmas period very successfully. RD held a return to work interview with the claimant on her return. The first monthly meeting between RD and the claimant took place in December 2018, as agreed.

[24]In line with her stated desire to resign from her employment, the claimant prepared a letter of resignation, which the Tribunal was referred to. She intended to submit this when she secured an alternative role, but never did so. It detailed her notice period, last working day, annual leave entitlement and requested her final wage be paid to her. The letter was addressed to the committee of FFT SCIO.

[25]At a committee meeting on 4 January 2019, FFT SCIO determined that they could no longer sustain the role of full time co-ordinator, as there were insufficient funds to cover the claimant’s salary and the organisation’s running costs and there was no funding in the pipeline. RD and LO’R met with the claimant on 7 January 2019 to inform her of this. They provided her with a 30 letter, signed by RD, as chair of FFT SCIO, confirming this.

[26]The claimant submitted a letter of appeal dated 14 January 2019. Within that letter she stated that she was not employed by FFT SCIO, but was instead employed by the respondent.

[27]The claimant stated in evidence in chief on two occasions that ‘there was no contract for the first 9 months’ and that that she was paid by the grant from the Diocese. The Tribunal was however referred to a ‘Freelance Agreement’ dated 10 July 2015, between the claimant and the respondent. This expressly stated that it would terminate on 31 March 2016, or earlier if either party gave 7 days’ notice. It provided for the claimant to receive £1,555 per month.

[28]The Freelance Agreement stated that ‘The role of the Freelancer will be to work in cooperation with the clergy and pastoral team to facilitate the mission of the Church by:• Managing the daily running of Food For Thought

• Achieving charitable status under OSCR for Food For Thought, if deemed appropriate, within three months

• Applying for grants for ongoing funding of the project

• Applying for future funding for the post so it can continue past April 2016

• Continuing to co-ordinate and expand an effective team of volunteers

• Providing training for volunteers

• Building up and expanding on relationships and networks already formed with other organisations and charities

• Setting up and facilitating a group work programme to include basic life skills eg healthy eating, cooking, parenting and budgeting

• Consolidating and continuing the initiative to the next stage of its development including education, mentoring and advocacy of service users

• Developing the social media profile of St Augustine’s Food For Thought programme’

[29]The Tribunal was referred to a further Freelancer Agreement dated 1 April 2017 between the respondent and the claimant. It stated that it would terminate on 31 March 2018, or earlier if either party gave 7 days’ notice. The terms of this Agreement, other than the dates and monthly rate (which was increased to £2,000 per month), were exactly the same as the previous Agreement. The claimant prepared this, in a rush, as a potential funder required evidence of the contractual arrangements in place. KM signed this Agreement without paying much attention to the terms. He stated this was an error and the Agreement should not have been between the claimant and the respondent, but between the claimant and FFT SCIO. Respondent’s submissions

[30]The respondent reiterated that they were no longer disputing that the claimant was an employee. They submitted however that the claimant was employed by FFT SCIO, rather than the respondent. They submitted that all the evidence, other than one factor (the terms of the contract), pointed to that. Claimant’s submissions

[31]The claimant’s representatives produced a detailed written submission, arguing that the claimant was an employee of the respondent, with reference to the principles derived from the relevant legislative provisions and case law. They requested that, if it was found that the claimant was an employee of FFT SCIO, they be conjoined to the proceedings.

Relevant law

[32]Section 230(1) of the Employment Rights Act 1996 (ERA) defines “employee” 25 as “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.”

[33]Section 230(2) ERA states that a contract of employment means ‘a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.’

[34]The issue of the status of a person as employee, worker or neither of those terms has been the subject of much case law. The essential test for employment status was set out in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] All ER 433

, which referred to the need for an irreducible minimum of personal service, mutuality of obligation and control. In Autoclenz v Belcher and others

[2011] UKSC 41

the Supreme Court considered whether the terms of a written contract were conclusive evidence of the parties’ relationship. They held that Tribunals should examine the working relationship between the parties, how that operated and what was the reality of the situation. Contractual terms which are inconsistent with the reality of the situation may be set aside.

[35]Part way though the hearing, the respondent indicated that they no longer disputed, given the evidence, that the claimant’s status was that of an employee. The Tribunal agreed with that concession and found that the claimant was an employee, for the following reasons:(i) It was clear that the claimant was required to provide a personal service.

(ii) There was mutuality of obligation - the claimant had fixed working hours and there was an obligation that she be provided with work, and that she undertake that work, during those hours.

(iii) There was control over what the claimant did - the claimant required to report to and take direction from the FFT SCIO committee; her hours were set by the FFT SCIO committee and she was line managed by the chair of the committee.

(iv) Other factors – the claimant also received a fixed salary, so took no financial risk; she continued to be paid while she was holiday or unable to work due to sickness. Identity of employer

[36]Having determined that the claimant was an employee, the Tribunal then considered who the claimant was employed by, the respondent or FFT SCIO. Whilst it is clear that the claimant was initially engaged by the respondent (as neither FFT nor FFT SCIO where in existence on 10 July 2015, when the claimant commenced her role as Coordinator for FFT), the Tribunal find that from 1 April 2016, when the initial Freelancer Agreement terminated, the claimant became an employee of FFT (or perhaps more properly the committee of FFT). Her employment then transferred to FFT SCIO when it was created on 15 March 2017. The Tribunal concluded that the claimant was employed by FFT SCIO (or its predecessor) for the following reasons:(i) The claimant’s role was Coordinator for FFT SCIO and she was responsible for the day to day running of that organisation.

(ii) The claimant reported to and took direction from the FFT/FFT SCIO committee, or the chair of the committee (KM initially and thereafter RD).

(iii) The claimant’s hours and salary were set by the FFT/FFT SCIO 20 committee.

(iv) The claimant was paid from the FFT SCIO bank account.

(v) The funding for the claimant’s salary came from grant funding which the claimant applied for in the name of FFT SCIO and which was awarded to FFT SCIO and paid into their bank account.

(vi) The office space the claimant worked from was rented from the respondent by FFT SCIO.

(vii) The claimant intimated her intention to step down from her role as Coordinator at the FFT SCIO AGM.

(viii) RD met with the claimant during her absence in from work due to illness in November 2018, held a return to work meeting with her, and arranged monthly management meetings thereafter. These meetings were held in his capacity as the new chair of FFT SCIO. He had no employed role with the respondent, he was simply a member of the 5 respondent’s church. There would be no basis upon which RD would be meeting with the claimant if she were, in fact, an employee of the respondent.

(ix) The claimant prepared a letter of resignation addressed to the FFT SCIO committee.

(x) FFT SCIO took the decision to terminate the claimant’s employment.

(xi) RD and LO’R met with the claimant to inform her of that decision and provided her with a letter from FFT SCIO confirming this.

[37]There was accordingly no link to the respondent other than the terms of the Freelancer Agreements. The Tribunal accepted that the terms of the second 15 Freelancer Agreement contained an error in referencing the respondent, not FFT SCIO. The reality of the situation was that, by the date of the second Freelancer Agreement, which was prepared on 1 April 2017, the claimant was an employee of FFT SCIO. The terms of the Freelancer Agreement are entirely inconsistent with the reality of the situation.

[38]In accordance with Rule 34 of the Employment Tribunals Rules of Procedure, FFT SCIO is substituted as respondent in the proceedings. The claim will be served on, and proceed against, FFT SCIO only. M Sangster Employment Judge 02 October 2019 Date of Judgment Date sent to parties 07 October 2019 EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4106835/2019 Held in Glasgow on 8, 9 & 10 February 2022 Employment Judge: F Eccles Tribunal Members: Ms E A Farrell Mr J Harla Mrs C Marsland Claimant Represented by: Mr R Leslie & Ms M McKillen - Student Advisors Strathclyde University Law Clinic on 8 February 2022 & Mr R Leslie & Ms C Morisson - Student Advisors Strathclyde University Law Clinic on 9 & 10 February 2022 Food For Thought Respondent Represented by: Mr H J Grant - Solicitor

ISSUES

[39]The claimant, submitted the respondent, relies on her belief alone to show that her conversation with Anne Dyer and/or concerns generally about DE remaining as a Priest and being involved in the respondent’s organisation, were the reason for the decision being made to terminate her contract. For this to be the case, submitted the respondent, there would have to be a conspiracy between the three people who knew that she had or at least intended to speak to Anne Dyer. Not only would they have had to conspire to remove the claimant from her employment, but they would have had to influence the other members of the Committee to agree to their purported wish to remove the claimant from her employment. This, submitted the respondent, is implausible and based on supposition as opposed to the evidence of the respondent’s witnesses who were present when the decision was made.

[40]For the Tribunal to find that the claimant was dismissed for making a protected disclosure, submitted the respondent, it would have to have been misled by each of the respondent’s witnesses. The Tribunal, submitted the respondent, would have to find as fact something the claimant believes - based on suspicion - and which is unsupported by any reliable evidence. From the evidence before it the Tribunal was unable to find that DE had sought to persuade other members of the committee to terminate the claimant’s contract because she had disclosed information to Anne Dyer. It was accepted that Anne Dyer had not spoken to any member of the Committee. There was no persuasive evidence of DE, Reverend Liz O’Ryan and Roddy Dyer having colluded to bring about the termination of the claimant’s employment or of Committee members having been unwittingly persuaded by DE to terminate the claimant’s contract because she had disclosed information to Anne Dyer about the investigation and his return to work. 41 . As an alternative to making a protected disclosure, the claimant submitted that she believes her employment was terminated because she felt unable to conspire in allowing DE to continue working with the respondent and for raising concerns generally about DE's relationship with the client. The Tribunal did not find that there had been a conspiracy to allow DE to remain on the respondent’s Committee or to be involved in their work. The allegations against DE had been investigated by the Diocese. A decision had been made to allow DE to return to his work which included, for a short period, membership of the respondent’s Committee. The claimant was reminded about her obligation to respect the confidentiality of those involved in the investigation. The Tribunal did not find however that anybody had prevented her from speaking to Anne Dyer, including Reverend Liz O’Ryan who assumed that the claimant intended to discuss her concerns about DE and his return to work. In all the circumstances, the Tribunal decided that the claim under Section 103A of ERA should be dismissed.

[42]The Tribunal, having concluded that the claimant was not dismissed because she made a protected disclosure went on to consider whether the claimant was dismissed for a potentially fair reason. In terms of Section 98(1) of ERA, in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for the dismissal. The respondent’s sought to show that the claimant was redundant, a potentially fair reason in terms of Section 98(2) (c) of ERA. An employee who is dismissed shall be taken to be dismissed by reason of redundancy if, in terms of Section 1 39(1)(b) of ERA, the dismissal is wholly or mainly attributable to the fact that the requirements of the employer’s business(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer has ceased or diminished or is expected to cease or diminish. (It was not the respondent’s position that the claimant was redundant because they intended to cease operating in terms of Section 139(1) (a) of ERA).

[43]Following the guidance in the case of Murray and anor v Foyle Meats Ltd

1999 ICR 827

, HL, the Tribunal began by considering whether one of the situations described in Section 1 39(1)(b) of ERA existed at the time of the claimant’s dismissal. The respondent, submitted Mr Grant, was entitled to decide that they could rely on volunteers and reduce overheads and thereby increase funds available for food distribution by not employing the claimant. The claimant challenged the respondent’s assessment of their financial position when the decision was made to terminate her employment. There had been no concerns expressed at the AGM held in November 2019 when the respondent’s finances were described as "a sound place to be". The minutes of the meeting on 4 January 2019 (P1 9/141-143) contained no record of any discussion about the respondent’s financial position other than expressing the hope that, subject to finding appropriate funding, the respondent would be able to fund a part-time post of Facilitator. There was no persuasive evidence that apart from counselling, which was a small part of the claimant’s work, that there was a diminution in the work undertaken by the claimant. It was not in dispute however that the Committee decided at their meeting on 4 January 2019 that Roddy Dyer’s wish to focus on the core objective of the respondent - referred to as the respondent’s “vision” - did not need the post of Project Co-Ordinator. The respondent submitted that they no longer required employees of any kind going forward as they intended to rely on volunteers and that this meant the end of the employment of its only employee and therefore the claimant’s dismissal.

[44]The second question, following the guidance in Foyle Meats Ltd (supra), was whether the claimant’s dismissal was wholly or mainly attributable to a diminution of work of the type undertaken by the claimant. There were a number of circumstances to be taken into account. It was not in dispute that at the time of the claimant’s dismissal, the respondent did not consider the claimant to be an employee. Since DE had returned to work, the claimant had made her position clear that she was disgusted by his alleged conduct and strongly opposed to his return to work. Relations between the claimant and others working for the respondent including DE, Reverend Liz O’Ryan and volunteers were strained. The claimant had informed the committee before the AGM in November 2018 that she intended to leave in the next financial year. Reverend Liz O’Ryan was moving to another parish. Roddy Dyer was the new Chairperson with a renewed vision about how to use the respondent’s resources. Reverend Liz O’Ryan described the decision to terminate the claimant’s contract as a response to a "multi-facetted set of circumstances." In all the circumstances, the Tribunal was unable to conclude that the claimant’s dismissal was wholly or mainly attributable to the respondent no longer requiring an employee to undertake the claimant’s work as a Project Co- Ordinator. In all the circumstances, the respondent was unable to show that the principal reason for dismissal was that the claimant was redundant.

[45]The respondent having failed to show a potentially fair reason for dismissal, the Tribunal found that the claimant’s dismissal was unfair. At the time of dismissing the claimant, the respondent did not recognise that the claimant was an employee with employment protection rights including the right not to be unfairly dismissed. As a result, when it came to terminating the claimant’s employment, the respondent’s conduct did not in any event fall within the range of a reasonable employer’s conduct. It was the respondent’s understanding that they were only required to give the claimant notice once the decision had been made that the post of Project Coordinator was no longer required. There was no warning or consultation. There was no consideration given to the possibility of alternative work or other steps to avoid dismissal, including part time work. There was no consideration given to the claimant’s appeal against dismissal. The respondent did not dispute that the claimant’s dismissal lacked a fair procedure. The respondent had failed to recognise that the claimant was an employee with employment protection rights.

[46]On balance, the Tribunal found that had the claimant not been dismissed, there was every likelihood that she would have remained in the respondent’s employment until the end of May 2020 by which time she would have left to take up alternative employment. A fair dismissal would have included a warning and a period of consultation. The claimant would have had an opportunity to reassure the respondent about future funding. There would have been discussions about alternatives to dismissal, including part time working. The claimant had however decided to leave the respondent’s employment. She had notified the respondent that she would be leaving in the next financial year. In all the circumstances, the Tribunal was satisfied that had she not been dismissed in January 2020, there was every likelihood that the claimant would have left the respondent’s employment in any event by the end of May 2020 to take up alternative employment.

[47]The claimant also had a claim of detrimental treatment for making a protected disclosure under Section 47B of the Employment Rights Act 1996. The detrimental treatment was identified as the claimant being excluded and ostracised following her return to work; warned about her duty of confidentiality; advised by DE to find alternative work and since leaving the respondent’s employment, subjected to criticism by the respondent on social media.

[48]For the reasons given above, the Tribunal was not persuaded that the claimant had made a protected disclosure. Should the Tribunal be wrong about this, it went on to consider whether the claimant was subjected to detrimental treatment under Section 47B of ERA for disclosing information to Anne Dyer. In terms of Section 47B (1) of ERA, a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, (i) by their employer, (ii) by another worker of the employer in the course of their employment or (iii) by an agent with the employer’s authority on the ground that the worker made a protected disclosure.

[49]In terms of the alleged detriments, the Tribunal was not persuaded that the claimant had been excluded and ostracised at work. The Tribunal accepted the evidence of the Reverend Liz O’Ryan that it was the claimant who had distanced herself from other members of the church. The Tribunal found that Reverend Liz O’Ryan was genuinely upset and taken aback by the claimant’s conduct towards DE and towards her when she was unable to agree with the claimant over how DE should be treated. Reverend Liz O’Ryan had sought to support the claimant by suggesting that she focus on her work. Similarly, the Tribunal found that Roddy Dyer sought to reassure the claimant that she would be supported on her return to work. It was not in dispute that Roddy Dyer had requested that the claimant respect the confidentiality of those involved in the investigation. It was also not in dispute that the respondent had placed a posting on social media that, without naming her, had detailed the circumstances of the claimant leaving their employment. Both acts were detrimental to the claimant. She felt frustrated and angry at having to respect the confidentiality of DE. She felt upset and angry at the respondent’s post on social media detailing the circumstances of her leaving their employment.

[50]In terms of Section 48(2) of ERA, it is for the respondent to show the ground on which the act was done. The Tribunal was satisfied that in both cases the respondent was able to show why the detrimental act was done and that it was not on the grounds that the claimant had disclosed information to Anne Dyer. In the case of the claimant being reminded about confidentiality, this was to protect the privacy of those involved in the investigation. It was not in response to the claimant disclosing information to Anne Dyer. It was to caution the claimant against speaking generally about matters that were reasonably considered to be of a private nature and the subject of an investigation by the Diocese. The posting by the respondent on social media was shown to have been done in response to the posting by the claimant’s sister (P22) in which serious allegations were made about the respondent. The respondent considered it necessary to respond to the allegations in the post (P22). It was this and not the claimant disclosing information to Anne Dyer that led the respondent to place the posting on social media. The claimant’s evidence that DE had suggested she leave the respondent's employment was not challenged. This however took place before the claimant spoke to Anne Dyer and could not therefore have been done on the grounds that the claimant disclosed information to Anne Dyer. The Tribunal concluded that in all the circumstances, the claim of detrimental treatment under Section 47B of ERA would have failed had the Tribunal found that the claimant made a protected disclosure to Anne Dyer. The claim under Section 47B of ERA shall therefore be dismissed.

[51]In terms of compensation, the claimant is entitled to a basic award of * .£1,384,62 (3 weeks x £461 .54). She is also entitled to a compensatory award for unfair dismissal. In terms of Section 123 of ERA, the compensatory award should be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the respondent. The claimant has not sought alternative employment since her dismissal. She has felt too unwell. In submissions made on her behalf, reference is made to the claimant’s feelings of alienation from people at work whom she previously considered to be good friends and subsequently by the wider church community. The claimant reacted badly to the complaint made against DE and the decision that he should be allowed to return to work. This adversely affected her health. She had been absent from work with stress and anxiety before her dismissal. Her health did not Improve after her dismissal. The Tribunal found that the claimant’s condition was exacerbated and prolonged by feelings of alienation from the wider church community and the postings on social media. This was after the claimant’s dismissal. The Tribunal did not accept the claimant’s submission that had she not been unfairly dismissed, "in the nature that she was,” she would not have suffered from ill health and would have been able to secure alternative employment and subsequently mitigate her losses.

[52]The Tribunal did not find that the respondent caused the claimant’s illness. It existed at the time of the claimant’s dismissal and was exacerbated and prolonged by events that took place after her dismissal. Having considered the authorities referred to by the claimant - Devine v Designer Flowers Wholesale Florist Sundries Ltd

1993 IRLR 517

and Dignity Funerals Ltd v Bruce

2005 IRLR 189

- the Tribunal was not persuaded that in all the circumstances the claimant’s ill health in the period after dismissal was caused to any material extent by the dismissal itself. There were other factors, primarily the claimant’s reaction to the complaint against DE and his subsequent return to work that caused the claimant to become and remain unwell.

[53]It was not in dispute that the claimant was good at her job and has extensive experience of working in the voluntary and community sector. She expected to obtain alternative work within 6 months of deciding in November 201 8 to leave the respondent’s employment. She had intended to leave during the new financial year. In all the circumstances, the Tribunal decided that the claimant should be awarded compensation to the end of May 2019. The claimant was paid to the end of January 2019. Based on her net weekly pay of £379.25 the Tribunal calculated that a just and equitable sum to compensate the claimant is £6,447.25 (17 weeks x £379.25).

[54]The claimant also sought an increase to any compensation awarded for failure by the respondent to comply with the relevant ACAS Code of Practice. The Tribunal was satisfied that in terms of Section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992, the ACAS Code of Practice on Disciplinary and Grievance Procedures applied to the proceedings of unfair dismissal, there had been a failure to comply with that Code and the failure was unreasonable. The Tribunal was not persuaded that the respondent’s failure to recognise that the claimant was an employee could, in all the circumstances, be relied upon as a satisfactory explanation for failing to follow the procedure set out in the ACAS Code of Practice. The respondent did not dispute that there had been no meeting with the claimant in advance of her dismissal and they had failed to respond to the claimant’s appeal. The Tribunal considered that in all the circumstances it was just and equitable to increase the compensatory award by 25%. The total award of compensation is therefore £8,059.1 3 (£6,447.25 plus £1 ,61 1 .88).

[55]As the claimant has been in receipt of Universal Credit, the recoupment provisions will apply to the compensatory award. For the purposes of recoupment, the total monetary award is £8,059.1 3. The prescribed element is £6,447.25. The period to which the prescribed element relates is 31 January 2019 to 31 May 201 9. The amount by which the total monetary award exceeds the prescribed element is £1 ,61 1 .88. This document should be treated as signed by me - Employment Judge F Eccles - in accordance with the Presidential Practice Direction of 1 May 2020.