Mrs Janette MilneClaimantGlasgow City CouncilRespondent
Before
Employment Judge W A MeiklejohnMs L Neil (instructed by Solicitor) for claimantMs G Riddell (instructed by Solicitor) for respondentDate 10 March 2022
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim of unfair dismissal, although lodged out of time, may proceed to a final hearing.
REASONS
[1]This case was listed for an open preliminary hearing, conducted remotely by video using the Cloud Video Platform (“CVP”). Ms Neil represented the claimant and Ms Riddell represented the respondent.[2]The issue to be decided at the preliminary hearing was time bar in relation to the claimant’s complaint of unfair dismissal. Applicable statutory provisions[3]Section 111 of the Employment Rights Act 1996 (“ERA”) (Complaints to employment tribunal) provides, so far as relevant, as follows – “(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal –(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (2A) ….section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (2)(a).”[4]Section 207B ERA (Extension of time limits to facilitate conciliation before institution of proceedings) provides as follows – “(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a “relevant provision”). But it does not apply to a dispute that is (or so much of a dispute as is) a relevant dispute for the purposes of section 207A. (2) In this section –(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) Where an employment tribunal has power under this act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.”[5]Section 18A of the Employment Tribunals Act 1996 makes provision for a prospective claimant to provide prescribed information to ACAS in the prescribed manner before instituting relevant Employment Tribunal proceedings. It was not in dispute that the claimant had complied with section 18A so I will not set out the terms of that section here. Agreed timeline[6]The following timeline was agreed at the start of the hearing –(a) Date of start of employment – 24 November 2003(b) Date of dismissal – 23 November 2018(c) Day A – 20 February 2019(d) Time limit under section 111(2) – 22 February 2019(e) Day B – 20 March 2019(f) Time limit under section 207B(4) – 20 April 2019(g) ET1 lodged – 22 May 2019
Evidence
[7]I heard evidence from the claimant. I had bundles of documents from both parties to which I refer by page number, prefixed by “C” in the case of the claimant and by “R” in the case of the respondent. Findings in fact Claimant’s dismissal and appeal[8]The claimant was employed by the respondent as a home carer until her dismissal without notice following a disciplinary hearing on 23 November 2018. The notes of this hearing were R23-27. The notes confirmed that the claimant was offered a right of appeal (at R27). The claimant was accompanied at the disciplinary hearing by her Unison representative, Ms J Ralph.[9]Following the claimant’s dismissal Ms Ralph, to whom the claimant referred as a colleague and friend, spoke to the claimant’s daughter, Ms Pamela Milne, and told her about the claimant’s right of appeal.[10]The respondent wrote to the claimant on 3 December 2018 confirming the outcome of the disciplinary hearing (R33-34). This letter mentioned the right of appeal.[11]The claimant submitted a letter of appeal dated 7 December 2018 (R29). This letter was prepared for the claimant by Ms Milne.[12]The appeal hearing, before the respondent’s Personnel Appeals Committee, was originally scheduled for 6 March 2019 but was postponed by the respondent because (the claimant understood) one of the councillors who was due to participate lived in the same area as the claimant.[13]The appeal hearing took place on 30 April 2019. At the appeal hearing, the claimant was accompanied by Mr A Thomson of Unison. Ms Ralph was also in attendance. The claimant’s appeal was unsuccessful. This was confirmed in the respondent’s letter to the claimant of 30 April 2019 (R35). Claimant’s medical history[14]The claimant was diagnosed as bipolar some seven years ago. At that time she suffered a psychotic episode and attempted suicide. She was hospitalised for four months. She was assigned a psychiatrist, Dr Yusuf, by whom she continues to be treated. She would consult Dr Yusuf when she felt ill, or unable to cope, or wanted her medication changed.[15]The claimant described her mental health issues as “coming in waves”. When adversely affected, the claimant would not get out of bed and preferred to sleep. She would feel life was not worth living and want to die.[16]The claimant lives with her daughter, Ms Milne, and three grandchildren. Ms Milne is separated from her partner. When her mental health is poor, the claimant relies on Ms Milne for care and support. The claimant said that Ms Milne “cooks, cleans, looks after me, helps me with everything” at such times.[17]The claimant’s mental health deteriorated after her dismissal. She described herself as being in “deep depression”. Her GP records (C2-6) disclosed that she attended at Braidcraft Medical Centre on 19 December 2018 and was seen by Dr J Dickson. Dr Dickson’s redacted note of this consultation reads as follows – “Seen with **** - struggling with low mood. **** reports been smashing things in house, shouting at ****, currently living with ****. Feels no motivation, just wants to sleep. Lost job as left one day (*****). Feels no point. Thinks about driving car or drowning herself in bath, but would not due to children.”[18]Dr Dickson issued a fit note on 19 December 2018 confirming that the claimant was unfit for work until 2 February 2019 (C12). This referred to the following conditions – “Low mood and anxiety – awaiting psychiatry review. Known bipolar disorder”[19]Dr Dickson increased the claimant’s dosage of duloxeline which is an antidepressant medication. The note of the consultation also states “consider Rossdale” which was a reference to Rossdale Mental Health Resource Centre, Glasgow. Although thus expressed, the reference in the fit note to “awaiting psychiatry review” implied a referral for such a review.[20]The claimant consulted Dr Dickson again on 1 February 2019 and was issued with another fit note covering the period to 29 March 2019 (C10). The reasons were expressed in broadly the same terms as in the fit note issued on 19 December 2018.[21]The claimant consulted Dr Dickson once more on 29 March 2019 and was issued with a further fit note covering the period to 31 May 2019 (C9). The reasons were again expressed in similar terms as in the first fit note.[22]On 2 May 2019 the claimant attended at Braidcraft Medical Centre and saw Dr I Ilyas. His redacted note of this consultation states (so far as relating to the claimant’s mental health) – “with her ****, known case of bipolar, was under psych until 2016, currently on duloxetine 60mg and quetiapine 50mg at night. Was seen in dec 18 and ? rereferred to rossdale but not heard anything <br&l; condition worsening, feeling more agitated, marriage broke recently, also lost her papa, and now living with her ****. Having flare ups of bipolar when sometimes mood really high and sometimes feels really depressed like last night when thinking about *****herself. Denies any ***** ideations now, no hallucinations, no delusions….to be referred to rossdale again….”[23]I found that the claimant’s bipolar disorder was a significant mental impairment which affected her ability to function normally throughout the period between shortly after her dismissal on 23 November 2018 and the date upon which her ET1 was lodged (22 May 2019). I say “shortly after” because the claimant’s evidence did disclose exactly when her mental health deteriorated between her dismissal on 23 November 2018 and her first consultation with Dr Dickson on 19 December 2018.[24]For the sake of completeness, I should add that the claimant’s GP records included an entry dated 31 May 2019 which disclosed that the records had stated her address as Raeswood Road rather than Raeswood Gate, and that Rossdale had sent a letter to the claimant about a missed appointment. This appeared to explain why the claimant had not heard from Rossdale following her first consultation with Dr Dickson on 19 December 2018. ACAS early conciliation[25]The claimant’s early conciliation (“EC”) certificate (C1) recorded the date of receipt by ACAS of EC notification as 20 February 2019 and the date of issue by ACAS of the EC certificate by email as 20 March 2019.[26]The claimant said that it was her daughter who contacted ACAS on her behalf. When asked what had prompted this, the claimant said “I think I showed her a letter and asked her to deal with it”. It appeared to be a matter of serendipity that the notification to ACAS occurred two days before the time limit under section 111(2). Claimant’s knowledge[27]Following her dismissal the claimant was unaware of how to start an Employment Tribunal claim and that there was a time limit for doing so. She had never been involved in Employment Tribunal proceedings. She did not know anyone who had been involved in Employment Tribunal proceedings. She had not read about Employment Tribunal proceedings in a newspaper. She did not have any means of internet access and did not use the internet. She said that her daughter “does things online for me” which I understood to be a reference to online shopping. The claimant did not know if her daughter had done any online research. The claimant had not contacted a Citizens Advice Bureau.[28]The claimant had not been advised by Mr Thomson or Ms Ralph about pursuing an Employment Tribunal claim. She had not been told about there being a time limit. She had not been told about EC. According to the claimant, when she told her trade union representatives about having an ACAS form in the house, Ms Ralph said that she did not know anything about that. Legal advice[29]Following the claimant’s unsuccessful appeal, Ms Milne telephoned McGrade and Co, Solicitors and spoke to Mr McGrade. The claimant was unable to state exactly when this occurred. She said that Mr McGrade had asked about contact with ACAS, and had told her daughter that the claimant had left it too late to pursue an Employment Tribunal claim.[30]After speaking to Mr McGrade, the claimant’s daughter completed an Employment Tribunal ET1 claim form on her behalf and submitted this on 22 May 2019. Comments on
Evidence
[31]The claimant did her best to provide truthful answers to the questions put to her. However, her recollection of events was not good and on a number of occasions she gave evidence which she later contradicted. By way of examples –• The claimant initially said that it was Ms Ralph who submitted her letter of appeal against dismissal, later correcting this to say that it was her daughter who did so.• The claimant initially said that her sister had contacted ACAS, later correcting this to say that it was her daughter who did so.• The claimant initially said that her daughter had submitted her ET1 claim form, later stating that it was Mr McGrade who had done do, and finally reverting to the position that it was her daughter who had submitted the form.[32]The claimant said at one point in her evidence that it was “all a blank after I lost my job”. It seemed to me that, on the balance of probability, the claimant’s ability to recall events between 23 November 2018 and 22 May 2019 had been adversely affected by her mental health issues at that time. Notwithstanding that, I found the claimant’s evidence about her ignorance of Employment Tribunals and time limits to be credible.[33]I was a little uncomfortable with the claimant’s evidence that she had not been given any advice by her trade union representatives about pursuing an Employment Tribunal claim and there being a time limit. That was the type of advice I would have expected a trade union representative to give routinely. I was also surprised at the claimant’s evidence of Ms Ralph’s apparent ignorance of EC. However, when I pressed the claimant, she said that she was “positively sure” that she had been given no such advice by her trade union representatives and, on balance, I was prepared to accept this evidence. Submissions for claimant[34]Ms Neil acknowledged that the burden of proof was on the claimant to show that it had not been reasonably practicable to present her unfair dismissal claim within the time limit. She also acknowledged that ignorance of the right to claim, the time limit to do so and the procedure to follow was not sufficient – that ignorance had itself to be reasonable.[35]Ms Neil submitted that the evidence was clear in respect of the claimant’s lack of knowledge. The fact that she had initiated EC within time was a matter of good fortune rather than knowledge. She was unaware that the section 207B time limit then applied. It had not been the claimant’s fault that her appeal hearing originally scheduled for 6 March 2019 had been postponed.[36]Ms Neil relied on Marks & Spencer plc v Williams-Ryan [2005] EWCA Civ 470 and referred to passages from the judgment –(a) At paragraph 20 Lord Phillips, MR said – “The first principle is that section 111(2) should be given a liberal interpretation in favour of the employee. Lord Denning MR so held in Dedman v British Building & Engineering Appliances Ltd.”(b) At paragraph 21 Lord Phillips, MR said – “In accordance with that approach it has repeatedly been held that, when deciding whether it was reasonably practicable for an employee to make a complaint to an employment tribunal, regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances.”[37]In Marks & Spencer there had been potentially misleading information provided by the employer to the employee relating to an internal appeal in which mention was made of the right to take a claim of unfair dismissal to a tribunal. It had been reasonable for the employee to await her appeal outcome. Her ignorance of the time limit was reasonable.[38]In the present case, Ms Neil submitted, the letter advising the claimant of her right of appeal referred only to the internal procedure and, the appeal having been postponed by the respondent, it had been reasonable of the claimant to await the outcome. Ms Neil also referred to the fact that the claimant had a mental health condition and relied on her daughter for internet access.[39]Ms Neil referred to John Lewis Partnership v Charman UKEAT/0079/11. In that case the Employment Appeal Tribunal found that the Employment Tribunal had been right to find that it had not been reasonably practicable for the claimant to lodge his claim before the determination of an internal appeal and that he had done so within a reasonable period thereafter. The claimant in that case was young and inexperienced and, as in the present case, had no knowledge of Employment Tribunals and the deadline for submitting a claim.[40]In that case the state of mind of the claimant and his father who provided advice was found to be “interchangeable”. Ms Neil said that this was not the position in the present case as between the claimant and her daughter. The claimant was reliant on her daughter but it was not reasonable to apportion any degree of responsibility to Ms Milne for the time limit being missed.[41]Ms Neil next referred to University Hospitals Bristol NHS Foundation Trust v Williams UKEAT/0291/12 where the complaint of unfair dismissal was presented some eight months after the claimant’s dismissal. The Employment Tribunal found that it had not been reasonably practicable for the claimant to present her complaint in time because of her mental health difficulties. In that case the claimant had managed to move house and change her child’s school but was unable to cope with the additional burden of pursuing her Tribunal claim until she was “sufficiently stable” to do so.[42]In the present case there was no question of the claimant becoming “sufficiently stable”. She had to rely on her daughter who had her own responsibilities. Her dismissal brought on a deep depression. Her medication was increased. She had severe symptoms including suicidal thoughts and low mood. She had difficulty with motivation. These difficulties subsisted throughout the period when time was running for the purpose of submitting a claim.[43]Ms Neil lastly referred to Norbert Dentressangle Logistics Ltd v Hutton UKEAT/0011/13. In that case the claim was allowed to proceed despite being lodged six weeks late. The claimant said that he was unable to function properly and could not bring himself to submit his claim, despite being able to pursue a grievance and engage in detailed email correspondence. There was no medical evidence.[44]Ms Neil contrasted this with the present case. In the present case there was medical evidence. There were also excuses for the claim not being presented in time – the claimant’s ignorance about Employment Tribunals and time limits, the absence of provision by the respondent of any information about Employment Tribunals, the claimant being dependent on her daughter due to her mental illness and her worsening mental health. Submissions for respondent[45]Ms Riddell submitted that the claimant had failed to discharge the onus of showing that it had not been reasonably practicable for her to present her claim in time. She said that the Tribunal had to look at the entire period (ie from the date of dismissal until the expiry of the time limit) and ask why the claimant had not submitted her claim.[46]Ms Riddell referred to Wall’s Meat Co Ltd v Khan [1979] ICR 52. The claimant could only succeed in arguing ignorance of the time limit if that ignorance was itself reasonable. It would not be reasonable if the ignorance was due to the claimant not making enquiries or due to the fault of advisers.[47]Ms Riddell sensibly accepted that the claimant had been very unwell during the period when time was running for presentation of her claim but argued that there was no evidence as to why she could not have submitted it throughout that period. The claimant’s evidence was that she had good and bad days. The Tribunal would have to decide if it had not been reasonably practicable for the claimant to present her claim for the whole of the relevant period.[48]Ms Riddell referred to the claimant’s evidence that she has spoken to her trade union representative about EC. It was, Ms Riddell submitted, not credible that a trade union representative would not be aware of ACAS procedures.[49]Ms Riddell submitted that there had been no obligation on the respondent to provide information about Employment Tribunals to the claimant. It was not their policy to do so. The claimant’s daughter had ample opportunity to enquire as to next steps should the claimant’s appeal fail. She had internet access, had applied for EC and could do research.[50]Turning to the second branch of section 111(2), whether the claim had been presented within such further period as the Tribunal considered reasonable, Ms Riddell argued that it was not reasonable to allow the claimant a further one month and two days when she had contact with her trade union representatives at the appeal hearing. Ms Riddell also observed that the ET1 expressed the claim in very brief terms. Discussion and disposal[51]I reminded myself of the terms of section 111(2) ERA. I had to be satisfied that it was not reasonably practicable for the claimant to have presented her claim in time and that she had presented it within such further period as I considered reasonable. The burden of proof was on the claimant. If I was to exercise the power to extend time, I had to do so in relation to the time limit as extended by section 207B ERA. As set out in the agreed timeline above, that time limit was 20 April 2019.[52]I also reminded myself of what Lord Scarman said in Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53 – where a claimant pleads ignorance as to his or her rights, the Tribunal must ask further questions – “What were his opportunities for finding out that he had rights? Did he take them? If not, why not? Was he misled or deceived?”[53]In Porter v Bandridge [1978] ICR 943 the majority of the Court of Appeal ruled that the correct test was not whether the claimant knew of his or her rights but whether he or she ought to have known of them.[54]The meaning of “reasonably practicable” was considered by the Court of Appeal in Palmer v Southend-on-Sea Borough Council [1984] ICR 372. The Court held that “reasonably practicable” did not mean reasonable, which would be too favourable to employees, and did not mean physically possible, which would be too favourable to employers, but meant something like “reasonably feasible”.[55]In Asda Stores Ltd v Kauser EAT/0165/07 Lady Smith explained “reasonably practicable” in these terms – “the relevant test is not simply a matter of looking at what was possible but to ask whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done”.[56]I considered the reasons or excuses advanced on behalf of the claimant for not submitting her ET1 claim form within the time limit. The first of these was her ignorance about Employment Tribunals and time limits. As recorded at paragraph 26 above, I was satisfied that the claimant was ignorant of these matters.[57]The second was lack of information about Employment Tribunals. While in Marks & Spencer there had been a reference to the right to take a claim of unfair dismissal to an Employment Tribunal, I agreed with Ms Riddell that the respondent had been under no obligation to provide such information to the claimant. I found it surprising that the claimant had not been advised about her right to bring a claim of unfair dismissal and the existence of the time limit by her trade union representatives (see paragraph 32 above) but I accepted the claimant’s evidence on this point. However, I understood this reason or excuse was effectively an assertion that the respondent should have told the claimant about her right to go to an Employment Tribunal and I did not accept that.[58]The third was the claimant’s dependence on her daughter due to her mental illness. The claimant herself did not use the internet and would not have been able to carry out any online research. Being ignorant about Employment Tribunals and time limits, the claimant was not in a position to ask her daughter to carry out such research. I was sympathetic to the argument advanced by Ms Neil that it would not be reasonable to apportion any degree of responsibility to the claimant’s daughter for the time limit being missed. I had no evidence about Ms Milne’s state of knowledge about Employment Tribunals and time limits and did not consider it appropriate to speculate about that.[59]The final reason or excuse advanced was the claimant’s worsening mental health. This was supported by the medical evidence, in particular the note of the claimant’s consultation with Dr Dickson on 19 December 2018 (see paragraph 17 above) and the facts that Dr Dickson(a) increased the claimant’s medication and(b) by necessary implication (see paragraph 18 above) referred her for psychiatric review.[60]It was apparent that the claimant relied on her daughter to deal with matters relating to her dismissal. It was Ms Milne to whom Ms Ralph spoke about the claimant’s right of appeal. It was Ms Milne who drafted the appeal letter. It was Ms Milne who contacted ACAS. It was Ms Milne who sought legal advice after the claimant’s appeal was unsuccessful. I was satisfied that Ms Milne did these things because the claimant was not herself able to do so by reason of her mental health.[61]I next considered whether it was reasonable for the claimant to rely on the reasons or excuses which were advanced. It seemed to me that the reasons or excuses were intertwined. The claimant was unaware of Employment Tribunals and their time limits. Her mental health and lack of computer literacy prevented her from taking action to become aware. Her worsening mental health compounded the difficulty the claimant faced in addressing matters.[62]Referring back to the questions posed by Lord Scarman in Dedman, I was satisfied that the claimant did not have an opportunity to find out that she had rights during the period between her date of dismissal and the expiry of the time limit for presenting a claim of unfair dismissal. This was the result of her ignorance about Employment Tribunals and their time limits and her inability because of her lack of computer literacy and mental health to do anything about that ignorance. That meant that Lord Scarman’s follow up questions did not apply in this case. Turning to his last question – was the claimant misled or deceived – I considered that this did not apply in this case.[63]I came to the view that it had been reasonable for the claimant to rely upon the reasons or excuses advanced on her behalf, with the exception of the allegation that the respondent had failed to provide her with information about her right to go to an Employment Tribunal.[64]While it might be said that most people would have some knowledge of Employment Tribunals, the claimant’s evidence about her own state of knowledge – and that was what was relevant in this case – was credible. I accepted that she did not know about Employment Tribunals and time limits. Neither she nor anyone she knew had been involved in Employment Tribunal proceedings. She had not read about Employment Tribunal proceedings in the press. She said in this context that she was “always too busy”.[65]I considered that the claimant’s mental health had a significant impact on her ability to progress an Employment Tribunal claim. Her fit notes confirmed that her impaired mental state continued from the time of her first consultation with Dr Dickson on 19 December 2018 until after the time limit for presenting a complaint of unfair dismissal had expired on 20 April 2019. It was also in my view reasonable to assume that the claimant’s mental health had deteriorated in the days or weeks leading up to that first consultation. The reference in Dr Dickson’s note to “lost job” suggests that this event might have triggered that deterioration. Accordingly, I was satisfied that the claimant, who was already diagnosed as bipolar, suffered impaired mental health between the date of her dismissal on 23 November 2018 and the expiry of the time limit for presenting an Employment Tribunal claim on 20 April 2019.[66]The claimant’s state of knowledge did not change in the period when time was running (for the purpose of presenting a complaint of unfair dismissal timeously) and so I did not consider that there was anything to be gained in this case by particular focus on the end of that period. Similarly, the claimant’s mental health did not improve but deteriorated during that period. I considered the question of whether the claimant ought to have known of her right to present an Employment Tribunal claim and the time limit for doing so, and came to the view that the question should be answered in the claimant’s favour. There was no blame attaching to the claimant for her own ignorance or mental health difficulties.[67]I lastly addressed the issue of whether the claim had been presented within such further period as I considered reasonable. I believed that the unsuccessful outcome of the claimant’s appeal against dismissal had been the catalyst for the claimant, through her daughter, to seek legal advice. I had no information as to the exact date upon which Ms Milne spoke to Mr McGrade but clearly it was after 30 April 2019.[68]Only when Ms Milne spoke to Mr McGrade did the claimant become aware of the existence of the time limit to present a complaint of unfair dismissal. The delay, if reckoned from the point in time when the claimant became aware of the time limit, was therefore less than one month and two days as contended by Ms Riddell. I decided that the delay was not unreasonable.[69]The claimant and her daughter upon whom she relied were in unfamiliar territory. While the claimant had spoken with the trade union representatives on 30 April 2019, I accepted her evidence that she had not been told about pursuing an Employment Tribunal claim, nor the time limit for doing so (see paragraph 27 above).[70]Accordingly, I decided that the claimant’s claim of unfair dismissal had been presented within such further period as was reasonable, and could proceed to a final hearing. Next steps[71]In their ET3 response form, the respondent resisted the claim only on time bar. They indicated that they would seek to lodge further and better particulars providing a substantive response to the claim if it was allowed to proceed.[72]As I have decided that the claim may proceed, the respondent should provide their substantive response now. I direct that they should do so within 28 days of the date upon which this Judgment is sent to the parties.[73]The case will then proceed to a final hearing. Date listing letters will be issued so that the parties can provide details of their availability and proposed witnesses. The parties should at the same time indicate whether they are happy for the final hearing to be conducted by CVP. An Employment Judge will then issue appropriate Orders covering preparation for and conduct of the final hearing.[1]the claimant was fairly dismissed from her employment with the respondent by reason of her conduct; and her claim is therefore dismissed.
INTRODUCTION
[1]This claim arose out of the claimant's employment with the respondent. The claimant worked as a Home Care Assistant for the respondent. Her continuous service began on 24 November 2003 and ended on 23 November 2018 with her dismissal.[2]The respondent argues that it fairly dismissed the claimant on grounds of her conduct and using reasonable and adequate procedures to do so. The claimant maintains that there were inadequate grounds for a finding of misconduct, that the sanction was in any event too harsh and that aspects of the process followed were inadequate.[3]The Tribunal heard evidence on the respondent's behalf from Ms Carol Quigley, Area Operations Manager, Mr Gordon Bryan, Operations Manager and Ms Liz Hamilton, HR Advisor to the appeal committee. The claimant gave evidence on her own behalf. She had earlier indicated that she may wish to lead evidence from her daughter in law, who previously worked for the respondent and/or its predecessor in a similar role to the claimant, but decided it was not necessary to do so.[4]Mindful that the claimant was representing herself, time was taken to explain the various procedures, conventions and rules which apply to the pursuit of employment claims before an employment Tribunal.[5]A joint bundle of the relevant documents was helpfully prepared and where relevant page numbers in square brackets below correspond to those pages in the bundle. The claimant provided a schedule of the losses she was claiming and the respondent provided a counter-schedule. LEGAL ISSUES The following legal issues had to be decided:[6]Was the claimant dismissed for a potentially fair reason under section 98(1) and (2) ERA (conduct being one of those reasons);[7]If so, did the respondent follow a reasonable procedure and was its decision to dismiss reasonable in terms of s98(4) ERA, bearing in mind the respondent's size and admin resources, and equity and the substantial merits of the case; and[8]If not, and therefore the claimant was unfairly dismissed, what remedy if any is appropriate?[9]Should any compensation awarded be reduced to reflect the claimant’s contributory conduct?[10]If the dismissal is found to be procedurally unfair, should any compensation be subject to a reduction on the basis that such flaw made no difference to the ultimate outcome?
APPLICABLE LAW
[11]By virtue of Part X of ERA, an employee is entitled not to be unfairly dismissed from their employment. The right is subject to certain qualifications based on matters such as length of continuous service and the reason alleged for the dismissal. Unless the reason is one which will render termination automatically unfair, the employer has an onus to show that it fell within at least one permitted category contained in section 98(1) and (2) ERA. Should it be able to do so, a Tribunal must consider whether the employer acted reasonably in relying on that reason to dismiss the individual. That must be judged by the requirements set out in section 98(4), taking in the particular circumstances which existed, such as the employer's size and administrative resources, as well as equity and the substantial merits of the case. The onus of proof is neutral in that exercise.[12]Where the reason for dismissal is the employee's conduct, principles established by case law have a bearing on how an employment Tribunal should assess the employer's approach. Relevant authorities are considered below under the heading 'Discussion and Conclusions'. FINDINGS IN FACT[13]The following findings are made as they are relevant to the issues in the claim.
Background
[14]The claimant was employed as a Home Care Assistant or Home Carer by the respondent. Her duties, as the title suggests, involved providing social care services to a number of individuals with various needs within the respondent's local government area. The care she provided was in the service users' homes.[15]Service users were frequently vulnerable individuals with individual care plans in place. It was often important as part of a service user's care plan that the necessary support provided by a Home Carer was provided in a stable and consistent way, and at set times. Typically that care was being provided to complement other support the individual was receiving.[16]The claimant was initially employed in her role by an organisation named Cordia. She started working for Cordia on 24 November 2003. The service transferred to the respondent under the Transfer of Undertakings (Protection of Employment) Regulations 2006. The date of the transfer was 30 September 2018 [53]. The claimant's own contract of employment transferred to the respondent on that date and her job did not substantially change. The respondent recognised her continuity of service with Cordia. Events of 12 July 2018[17]The claim centres around events on 12 July 2018. The claimant was therefore an employee of Cordia at the time, although the majority of the procedures which followed were conducted by the respondent after the transfer date. Around 9.45 in the morning of that day the claimant was witnessed by a colleague named Helen Andrews to be in her car along with her work partner, also a Home Carer outside a row of shops at a location in Glasgow. Ms Andrews wanted to see if the claimant could help her with her own rounds and telephoned a colleague, Mary Brower who is a Home Care Co-ordinator. She checked the respondent's 'Caresafe' electronic diary system, which showed that the claimant and her colleague had checked in at a service user's home nearby at 9.48am – i.e. around the same time as they had been seen by Ms Andrews.[18]The checking in and out process is followed by a carer scanning either a QR code or barcode at the service user's home. The code is part of a physical diary where notes are made by carers. They scan the code on arrival, and again on leaving and the information is relayed back to the respondent's central system.[19]On 13 October 2017 the claimant had received a letter from her then Business Development Manager [65] which stated: 'use of iPhones – I am aware of the potential to misuse the iphones and the QR codes to fraudulently record the timing and duration of a home visits. Therefore it is important that I make you aware that such actions are unacceptable and considered to be gross misconduct which could lead to disciplinary action and possible termination of employment. It also places our vulnerable service users at risk and brings Cordia into disrepute.' This was not a direct warning to the claimant in response to anything she had done. The letter was sent to a number of care workers. However it served as a warning in a more general sense in that it made clear how seriously her employer would treat this form of abuse of the system.[20]Ms Brower telephoned the service user's home and was told by a relative of the service user that the claimant and Ms Barrie had left some 20 or 25 minutes before.[21]Ms Brower next tried telephoning the claimant. In response to the call the claimant told Ms Brower that she had checked in at the service user's home, but then was feeling unwell and decided to make a trip to a chemist to pick up some prescription medication. She said she had left her partner at the service user's home. This was not correct, as that individual had travelled with the claimant in her vehicle and was witnessed by Ms Andrews.[22]Ms Brower considered this unusual and telephoned Ms Andrews, who in turn called Ms Caroline Quigley, an Area Operations Manager and as such a line manager of the claimant. She sought advice from a colleague in Human Resources and was advised to begin a disciplinary investigation.[23]Later that day Ms Quigley spoke to the claimant and her partner, and asked them to come in to see her. She also had a conversation with Ms Andrews. The claimant came into the office and had a discussion with Ms Quigley at the end of that working day. Ms Quigley did not intend those to be formal investigation meetings, which might happen later. She wanted to tell the claimant and her partner that she was going to undertake a formal investigation and that they would have the chance to respond if any disciplinary case was established.[24]Neither the claimant nor her partner was suspended. Ms Quigley did not consider there was sufficient risk to require that step. Each went back to their duties from the following day. Investigation[25]Ms Quigley conducted her investigation along with another Area Operations Manager named Louise Whitham. They interviewed the claimant, her partner, Ms Andrews and Ms Brower.[26]The claimant attended a disciplinary investigation interview on 9 September 2018. She signed a copy of the note taken of the conversation and is taken to have accepted it as true and accurate [37-39]. She initially said she had arrived at the service user's home at 9.40am on the day in question, but after further discussion said she had arrived at around 9.20am. She said she decided to go to a chemist to pick up some medication as she was feeling unwell, that she had forgotten to scan in on arrival at the service user's home and therefore took the code with her.[27]It was put to the claimant that the Caresafe system showed that she had checked in with her next service user on her list at 9.30am. She replied to say that this record must be correct and therefore she was mixed up about her timings. When asked if she falsified that record she replied that 'It was only in Mrs [first service user]'.[28]The claimant was then asked whether she had copied the QR code onto her phones so she could record she was at the service user's home when she was not in attendance. She confirmed she had, but it was the first time she'd done it and she felt very ill and was not thinking straight. She did not call her co-ordinator to report feeling ill.[29]Ms Quigley and Ms Whitham believed there was enough of a case for the claimant to answer to warrant a disciplinary hearing being arranged. Their main concerns were that records appeared to have been falsified and that there may have been a risk or a negative effect in relation to the care provided to the service user, who required to take medication and relied on the visits being at their scheduled time. The claimant's input was part of a wider support plan for the individual. They prepared a report to record their investigation [41- 42]. Disciplinary hearing[30]At this point in the process matters were passed over to Mr Gordon Bryan, an Operations Manager with the respondent. He was provided with copies of the documents to date which he read. He arranged to chair a disciplinary hearing on 23 November 2018 and the claimant was sent an invitation letter.[31]The invitation letter said the purpose of the hearing was 'to discuss the allegation that you failed to follow the correct procedures when utilising the care safe system within service users' homes.'[32]The letter went on to warn the claimant that owing to the seriousness of the allegation, a possible outcome was summary dismissal. Similarly, there could be referrals to Disclosure Scotland under the Protecting Vulnerable Groups (PVG) scheme and to the Scottish Social Services Council.[33]The claimant attended the disciplinary hearing as scheduled. The hearing note produced was not challenged and is accepted to be a sufficiently accurate account of the discussion [45-49].[34]Present at the hearing were the claimant, Mr Bryan, Ms Julie Ralph of UNISON to accompany the claimant, Ms Quigley, and Mr John Leese who was an HR Business Partner.[35]Ms Quigley's attendance was so that she could read out her investigation report and answer any questions in relation to the investigation process.[36]The claimant's position in response to the allegation was that:a. She began to feel unwell and had to fetch some medication. She had forgotten to pick it up in the days before and had not taken it for a few days;b. She thought she could finish up early with the service user and collect the medication. Her partner agreed with that;c. At the point she was viewed in her car she had just picked up her medication and taken some. Around that time she scanned the service user's code using a photograph her partner had taken of it. She didn't physically remove anything from the service user's home;d. This was the first time she had done so. She was 'stressed out' and her behaviour was out of character.[37]Mr Bryan adjourned the meeting to consider whether he could reach a decision on the outcome. He considered the claimant had committed an act of gross misconduct. He believed she had breached the trust put in her by her employer, and she had falsified work related records. He considered her mitigatory statements, her clean disciplinary record and her length of service. He concluded that they did not deflect from the seriousness of her conduct. He considered that if she needed to pick up prescription medication she could have done so during a break later that morning, or taken time off under the sickness absence procedure if the matter was particularly urgent or serious. He believed she had broken the trust placed in her as an employee.[38]Mr Bryan reconvened the hearing and confirmed his decision to the claimant. He said that he believed he had no other option but to dismiss her with immediate effect. The claimant was informed that she had a right to appeal the decision and that the decision would be confirmed to her in writing.[39]The claimant received Mr Bryan's outcome letter dated 3 December 2018. It confirmed that:a. By her own admission she misused the QR system to suggest she had scanned in and out of a service user's home at times different from those which applied;b. Her mitigating circumstances were not sufficient, particularly as she could have waited until a scheduled break later in the morning to pick up her medication;c. That she had neglected her duties as a Home Carer which placed a vulnerable service user at risk; andd. That her actions fell short of the standards required of a Home Carer and were in breach of the respondent's own code of conduct and the SSSC code of practice, as well as amounting to gross misconduct.[40]Mr Bryan also held a disciplinary hearing with the Home Carer who had been with the claimant on the morning of 12 July 2018. He took the decision to dismiss her also for her part in those events. Appeal[41]The claimant appealed against her dismissal by a letter dated 7 December 2018 [58]. Her grounds were that:a. The decision was overly punitive given her good work and attendance record, and unblemished disciplinary record before the event in question; andb. Insufficient consideration was given to mitigating factors that contributed to the incident.[42]Her appeal was heard by a committee made up of three of the respondent's councillors as is the respondent's procedure. An appeal pack was put together containing the relevant documents.[43]An appeal hearing was scheduled for a date in March 2019, but it was discovered that one of the committee members had a conflict of interest in relation to the claimant and had to step down. A replacement was found but this required the hearing date to be put back. The respondent is normally able to hold an appeal hearing within two months of an appeal being intimated. Around this time a number of other appeals were going on and it was more challenging that normal to secure three councillors to make up a panel.[44]The hearing took place on 30 April 2019. The claimant attended along with Mr Ralph. Mt Bryan, Ms Quigley and Mr Leese were also present.[45]Although none of the committee members gave evidence to the Tribunal, the minute of the appeal hearing was not challenged, and is accepted as a suitably reliable record of what was said [71-82]. Its accuracy was also confirmed by Ms Hamilton, an HR officer who was at the meeting.[46]The committee called Ms Quigley and Mr Bryan in turn to answer questions. The claimant was given the opportunity to question them also. She was then allowed to put forward her own case. Both sides – management and the claimant - then summed up their positions.[47]The committee adjourned before returning to deliver their decision. They had unanimously decided to uphold the decision of Mr Bryan to dismiss the claimant. They accepted the claimant's submissions in mitigation for her actions but considered that Mr Bryan was entitled to decide that was not enough to outweigh the seriousness of her breach of standards and procedures. They considered reinstating the claimant with a warning in place but ultimately concluded that was an inadequate response to her misconduct.[48]The committee's decision was confirmed in a letter dated the same day of the meeting itself [83]. This concluded the process available to the claimant. DISCUSSION AND CONCLUSIONS Was the claimant's dismissal for a potentially fair reason?
DISCUSSION AND CONCLUSIONS
[49]The first question to decide is what was the reason for the claimant's dismissal, and is that a permitted reason under section 98(1) and (2) of ERA? One such reason is conduct – section 98(2)(b).[50]It is found that the respondent has proven on the evidence provided that the claimant was dismissed because of her conduct. All of the relevant documents provided and spoken to suggested this. A disciplinary process was followed, involving the usual steps of investigation, hearing and appeal. The disciplinary outcome letter in particular makes clear that the reason for her dismissal was gross misconduct, for which dismissal was thought to be an appropriate and proportionate response.[51]There was no material evidence to the contrary and the claimant herself did not argue that this process was a shield for a different reason which the respondent used to dismiss her. For example, her appeal grounds were that the sanction was too harsh and relevant mitigatory factors had not been given adequate consideration. Was the dismissal reasonable in all of the circumstances?[52]The next issue therefore to decide is whether the respondent acted reasonably in implementing dismissal for the above reason. Section 98(4) ERA requires that fairness of a dismissal: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 sufficient reason for dismissing the employee' andb. Shall be determined in accordance with equity and the substantial merits of the case.'[53]This provision requires a Tribunal too look at the wider situation, including factors such as whether a fair process was carried out, whether dismissal was a proportionate response and whether the employer has acted consistently with any other similar cases. The 3-part Burchell test[54]In assessing the overall reasonableness of an employer's actions in such cases British Home Stores Ltd v Burchell [1978] IRLR 379 will apply. This is a longstanding authority, regularly applied to misconduct dismissal cases.[55]Burchell requires three things to be established before a conduct-related dismissal can be fair. First, the employer must genuinely believe the employee is guilty of misconduct. Secondly, there must be reasonable grounds for holding that belief. Third, the employer must have carried out as much investigation as was reasonable in the circumstances before reaching that belief.[56]In relation to the first part of the Burchell test, it is accepted that there was a genuinely held belief in the claimant’s misconduct. This was held by Mr Bryant. His belief was not challenged in any recognisable way and in any event his evidence is accepted on this point. That evidence was as given under oath to the Tribunal and by way of the documents which were created in the course of the disciplinary processes, including his outcome letter.[57]According to Burchell it is next necessary to consider whether the respondent had reasonable grounds for holding the belief that the claimant was guilty of misconduct.[58]There was sufficient justification for Mr Bryant to consider the claimant's actions to be a serious matter. Although no harm was evidently done on that occasion, there were valid reasons why Home Carers should follow the schedule of their daily appointments and spend the allocated amount of time with each service user.[59]The evidence itself was clear and uncontested. The claimant had created a false record of when she had arrived at and left a service user's home, using a practice which the respondent had flagged up as forbidden. She and her colleagues had been put on notice by the letter of 17 October 2017 that abuse of the code reading process would be viewed as gross misconduct and potentially lead to termination of employment.[60]Also relevant was the extent to which the claimant made concessions during the disciplinary process. She admitted to breaking the rules and knowing that she had.[61]It is therefore found that the respondent's belief in the claimant having committed an act of misconduct was genuine.[62]The third limb of Burchell requires consideration of whether the employer carried out as much investigation as was reasonable in the circumstances in order to reach its genuine belief in the employee's misconduct. That does not require an employer to pursue every avenue irrespective of time, cost and prospects, but no obviously relevant line of enquiry should be omitted.[63]The legal test, as emphasised in Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 is whether the investigation fell within a band of reasonable approaches, regardless of whether or not the Tribunal might have approached any particular aspect differently.[64]The respondent's investigation was sufficiently thorough in this context. No obvious line of enquiry was omitted. The key evidence was gathered promptly and reliably. The picture of what had happened was clear, in large part because the claimant (to her credit) was open about what she had done. The band of reasonable responses[65]In addition to the Burchell test, a Tribunal must be satisfied that dismissal fell within the band of reasonable responses to the conduct in question which is open to an employer in that situation. The concept has been developed through a line of authorities including British Leyland UK Ltd v Swift [1981] IRLR 91 and Iceland Frozen Foods Ltd v Jones [1982] IRLR 439.[66]The principle recognises that in a given disciplinary scenario there may not be a single fair approach, and that provided the employer chooses one of a potentially larger number of fair outcomes that will be lawful even if another employer in similar circumstances would have chosen another fair option which may have had different consequences for the employee. In some cases, a reasonable employer could decide to dismiss while another equally reasonably employer would only issue a final warning, or vice versa.[67]It is also important that it is the assessment of the employer which must be evaluated. Whether an employment Tribunal would have decided on a different outcome is irrelevant to the question of fairness if the employer's own decision falls within the reasonableness range and the requirements of section 98(4) ERA generally. A Tribunal must not substitute its own view for the employer's, but rather judge the employer against the above standard. How the employee faced with disciplinary allegations responds to them may also be relevant.[68]Taking into account all aspects of the above approach, it is found that dismissal of the claimant was within the band of reasonable responses open to the respondent in these circumstances.[69]The decision which Mr Bryan ended up being faced with was whether the claimant's admitted misconduct should be mitigated by factors such as her long service, clean disciplinary record and history of being a good worker. He decided that was not enough and he was entitled to do so, even if he might equally fairly have decided to give the claimant a last chance by way of a final warning. The same applies to the decision the appeal committee had to make.[70]Mr Bryan also chaired a disciplinary hearing involving the claimant's work partner, and decided to dismiss her for gross misconduct also. There was no suggestion of inconsistency in treatment.[71]Although the appeal hearing had initially been scheduled for March 2019, that was still more of a delay than would have been ideal. However, the delay in itself is not enough to render the whole process unfair. There was no evidence of the delay hampering the fairness of the hearing when it did take place. Therefore the delay did not take the process, or the decision to dismiss itself, outside of the band of reasonable responses.
CONCLUSION
[72]As a result of the above findings it is not necessary to address further matters such as contributory conduct, Polkey, mitigation or other aspects or remedy.[73]The claimants was fairly dismissed by reason of her conduct after a reasonable process. Her claim must therefore be dismissed.