Miss J Daly v Mr G Marshall: 4111193/2019 and 4101940/2020
JUDGMENT
[1]The claim for unfair dismissal is dismissed.[2]The claim for a redundancy payment is dismissed.[3]The claim for breach of contract in respect of notice pay is dismissed.[4]The employer’s contract claim is dismissed.[5]There has been an unauthorised deduction from wages and the respondent is ordered to pay to the claimant the sum of £15390 in this respect, being £14022 in respect of wages for the period from January 2019 to September 2019 and £1368 as pay in lieu of accrued annual leave. These are gross figures. If the respondent is required to make any payments of tax and national insurance in respect of this payment, that should be deducted.REASONS
[1]The claimant presented a claim on 23 September 2019 against the respondent. The claim was for holiday pay (12 weeks), notice pay (12 weeks), wages (41 weeks up until 30 September 2020) and a redundancy payment.[2]No response was received and the claim was listed for a final hearing on 6 January 2020. At that hearing, before Employment Judge Robison, it became clear that the claimant had now been dismissed on 12 December 2019. The claimant asked to amend her claim to include unfair dismissal. The address of the respondent was also amended as he was no longer trading from the address to which the ET1 had been sent. The hearing was adjourned and the respondent’s comments were sought. The application to amend was subsequently granted.[3]The respondent asked to be allowed to present a response late, saying that the original claim had not been received. The application to extend time for a response to be presented was granted by Judge Whitcombe and the response, subsequently presented was accepted.[4]The response included an employer’s contract claim which was accepted by the tribunal and intimated to the claimant. That contract claim is technically a separate claim with its own claim number (4101940/20)[5]There has been a considerable amount of correspondence since then including various applications by each of the parties. These were dealt with by Judge Robison in chambers on 15 July. There is no need to narrate the details here. The outcome was that a hearing was listed for 3 days in person to be listed once that was possible. The hearing was subsequently listed for 12, 13 and 14 October 2020.[6]Various applications for orders were made by the respondent close to the hearing. Those which related to information and documents held by third parties were refused as it was too close to the hearing and it was not clear that these would be necessary. However there respondent was told he could apply again at the end of the evidence and the Judge would consider the matter again at that stage.The hearing
[7]The claimant attended and gave evidence on her own behalf. She also called Ms Nisbet, a dental nurse at the practice until 31 March 2017. Ms Marshall gave evidence for the respondent as she had been managing his affairs at the relevant times. Both parties provided the tribunal with documents. Although there is clearly a great deal of animosity between the parties, the evidence that was given by each witness appeared to me to be given honestly and in good faith. Findings in fact[8]Having hearing from the witnesses and considered the documents provided to me, I make the following relevant findings in fact: Claimant’s employment[9]The claimant was employed as a dental nurse since August 1989 at a practice at Dougrie Drive, Castlemilk. Her employment had transferred twice under the Transfer of Undertakings (Protection of Employment) Regulations 2006. In 2002, on the second occasion, her employment transferred to the respondent.[10]There were 2 dental nurses at the practice, the claimant and Ms Nisbet. As there was now only one dentist, a system was worked where the 2 employees worked both as dental nurses and as receptionists and they alternated whether they worked mornings or afternoons in each role.[11]The claimant’s contract of employment said that she was employed as “a dental nurse and dental receptionist” and set out the various duties to be undertaken in each role.[12]Her salary was £1483 (gross) per calendar month, £1395 (net). A week’s pay would be £342(gross) and £322 (net) Registration[13]The Dentists Act 1984 was amended, with effect from 1 August 2008, to include a mandatory system of professional registration for complementary occupations to dentistry, This included dental nurses and it became illegal to practice or hold yourself out as one of these professionals without registration with the General Dental Council (GDC). The requirement came into effect on 1 August 2008 and there were various conditions to registration, including training and continuous professional development.[14]There were transitional “grandparenting” arrangements for 2 years to allow people, such as the claimant, who had been in practice for a long period of time to enter the register. The claimant utilised this provision and was registered on 1 August 2008.[15]From 2016, the Dentists Act was amended to require registered practitioners to have indemnity cover in place. For the claimant, this was provided by the respondent as part of his general policy. However, she was required to confirm each year that it was in place.[16]The Guidance from the GDC makes it clear that those registered under the scheme will be required to confirm that they have indemnity in place when they renew their registration each year. It also makes it clear that if the person is covered by someone else’s policy, it is the individual responsibility of the registrant to check this before making the declaration.[17]Communication about registration, including the annual renewal form were sent to the claimant at the practice address. It was also possible to check and amend registration details online. One of the obligations of registration is to keep details up to date.[18]Continuous professional development is required as part of registration. This was on a 5 year cycle and included self-study as well as course attendance. The courses were paid for and organised by the respondent.[19]The respondent paid the registration fee but the claimant was required to complete and submit the relevant form. From 2016, this including ticking a box on the form to say she had appropriate indemnity cover in place.[20]The claimant’s registration was due in August 2017. Payment was taken from the respondent’s account of £116. The renewal form was sent to the claimant at the practice address. As the practice was closed (see below) the mail was returned to the GDC. The claimant was notified by the GDC that they intended to remove her from the Register as she had not complied with the indemnity requirements (by ticking the box to confirm she had appropriate cover). The claimant did not receive this letter as it was again sent to the practice address. The GDC then removed her from the register on 7 September 2017 and advised her by letter that his had occurred. Again, the correspondence was sent to the practice and the claimant did not receive it. She was unaware that of her removal until it was brought to her attention by Ms Marshall (see below.) The respondent’s health[21]During 2012- 2013, the respondent’s wife, Ms Marshall, was unwell resulting in the respondent taking a lot of time off to look after her. The respondent then suffered his own health problems and there were periods when he did little or no dental work.[22]In January 2017, he incurred a neck injury which meant he was unable to work, with the exception of a few emergency appointments. He continued to pay the two employees although they were, in the main, doing only reception work.[23]In March 2017, the other employee resigned. Her last day was 31 March 2020. The respondent texted the claimant on 31 March to say he was signed off for another 3 weeks and there was no need to come in the next week “unless something comes up”. He indicated he would be advertising for a replacement nurse and it might take a month or so for interviews. He said he might look at getting a work mobile for the claimant.[24]For the next 6 weeks or so, the claimant went into the practice occasionally to collect mail but was otherwise not required to carry out any work.[25]On 11 May 2017, the respondent was called to the practice when the alarm went off. He was concerned there had been a break-in and arranged to have the locks changed. The claimant did not get a set of the new keys and did not go back to the practice again. Mail for the respondent was kept for them by the Royal Mail as the office was closed and there was no mail box. However, any other mail was returned.[26]The respondent continued to pay the claimant her full salary although she wasn’t working. He hoped he would be able to return and was receiving treatment for the condition. He had a business insurance policy that covered a year of the claimant’s salary. Once that ran out, the respondent continued to pay the claimant’s salary from his own savings up until November 2018, as he was still hoping he would be able to return to practice.[27]In September 2018, the respondent was told that his condition was now permanent. This affected his mental health which culminated in a serious incident on 20 December 2018 and an intervention by the crisis team. A factor in his distress was that he did not have enough funds to pay the claimant’s wages that were due that day.[28]The respondent did not renew his registration in January 2019 and therefore has been unable to practise as a dentist since then.[29]When the claimant did not receive payment of her wages on 20 December 2018 she contacted the respondent. Ms Marshall explained what the position was and what had happened to the respondent. The claimant phoned again 2 days later asking about her wages. The respondent was not in a position to deal with any business matters and Ms Marshall took over dealing with his financial affairs. She paid the claimant’s wages for December and took advice about how to proceed. The respondent did not have sufficient funds to pay the redundancy payment to which the claimant would have been entitled had her contract been terminated.[30]Ms Marshall’s initial plan was to make the business insolvent which would allow the claimant to reclaim the redundancy payment and unpaid wages from the National Insurance Fund. She was advised that the insolvency process could not be completed until the respondent had made an application for benefits and that had been processed. Ms Marshall wrote the claimant on 18 January 2019, explaining the position and saying she would try to raise funds to pay her wages. In the meantime, due to the respondent’s “medical and social issues”, Ms Marshall would be the point of contact and would update her weekly.[31]The claimant texted Ms Marshall for an update on 4 February 2019. Ms Marshall responded that there was no change and she confirmed this by letter on 4 February 2019 and again on 17 February 2019.[32]On 18 February 2019, the claimant wrote to Ms Marshall saying she had no funds to live on and her mortgage protection did not apply as she was still employed. She asked for he wages to be paid and to be made redundant.[33]Ms Marshall replied on 3 March 2019 saying the situation was the same and they had been unable to obtain funds to pay her wages.[34]The claimant contacted the respondent asking for an update. Ms Marshall wrote again on 8 April 2019 advising the position was unchanged and asking that any contact was with herself due to the respondent’s medical status.[35]The claimant wrote raising a grievance on 7 May 2019 in relation to unpaid wages, redundancy and notice and stating she had been advised to raise a claim in the employment tribunal.[36]There was further communication between the parties. This included further attempts by the claimant to contact the respondent directly. At some point during this period, Ms Marshall found out that if insolvency proceedings were commenced, the respondent would lose his assets.[37]In July 2019, Ms Marshall indicated to the claimant that she was unwell herself and having difficulty dealing with things. She advised that the position remained the same, they were unable to pay the outstanding sums that were due to the claimant. She asked that the claimant stop contacting the respondent directly and said that, if she continued, she would refer the matter to Police Scotland as “harassment” and would commence disciplinary procedures.[38]The respondent then received information that the claimant had been on holiday and that she was working elsewhere for cash. They also found out that the claimant had been removed from the GDC Register. Ms Marshall wrote to the claimant towards the end of August 2019 asking for an explanation of the removal; from the register and confirmation that the claimant had not taken holidays and was not engaged in other work.[39]The claimant called the GDC and found out that she had been removed because of failure to provide an indemnity declaration. She wrote to Ms Marshall said that this was provided by the respondent and that she considered her removal came from the respondent’s failure to notify herself or provide to put cover in place for the surgery. She said she had not taken any leave since 1 August 2017 and that she had not undertaken any other paid employment.[40]Ms Marshall asked for further details to confirm the reason for removal. She confirmed that indemnity cover had been in place and remained in place. She pointed out that it was the claimant’s responsibility to keep up to date contact details with the GDC and to make the annual declaration and that this could not be performed for her by her employer.[41]The claimant presented a claim to the employment tribunal on 23 September 2019 for unpaid wages from January 2019 to September 2019, notice pay, holiday pay and a redundancy payment.[42]Ms Marshall acting on the respondent’s behalf, wrote to the claimant on 1 October 2019 inviting the claimant to an investigatory meeting on 8 November. This was to take place at and address 147 Greenhead Street in Glasgow. The matters to be investigated were: 1 The circumstances pertaining to the GDC removing you from the DCP register on September 2017 2 Your refusal to respond to a previous attempt to garner information by post 3 Your use of leave during the period from August 2017 4 Circumstances related to your “availability” for work during the period April 2017 onwards 5 Your actions related to communication with management by text messages and post.[43]The letter said that Claire Marshall would be the lead investigator and another neutral party would be present as notetaker. The claimant was advised that a possible outcome was disciplinary leading to termination and potential civil action to recover wages already paid.[44]On 31 October 2019, the claimant’s nephew attempted to contact Ms Marshall at work. When the claim was put through to Ms Marshall the line went dead. The receptionist complained that he had been rude to her.[45]The claimant responded by text on 5 November 2019 saying, “due to personal circumstances and concerns I won’t be available”. Ms Marshall asked if she wished to reschedule? The claimant did not reply and Ms Marshall conducted the investigation with the respondent in the claimant’s absence. They concluded that the following matters that should go forward to a disciplinary hearing: 1 Being struck off the register on 7 September 2017 preventing the claimant from practicing as dental nurse in UK 2 Refusing to provide information to management preventing them carrying out a full investigation 3 Continuing to contact the respondent when having been asked not to do so and also providing her nephew with Ms Marshall’s details leading to an inappropriate telephone call at work.[46]The claimant was asked to confirm she would attend the hearing. The claimant replied by text that she “had personal health issues that left her unavailable for meetings” She said she “did not wish to share this information with her employer’s wife” and she would be in contact when she was “in a position to facilitate a meeting with the respondent.”[47]Ms Marshall asked when she would be able to attend and asked her to note she was acting in the role of practice manager for the foreseeable future. There was no reply.[48]The respondent then wrote to the claimant inviting her to a disciplinary hearing on either 5 or 6 December 2019.The claimant was asked to indicate which was her preferred date. This was sent by recorded delivery. She addressed the claimant’s reluctance to share information with “her employer’s wife” saying that there had been repeated communication between the claimant and Ms Marshall for 10 months with no objection, the respondent’s health precluded him attending and there was no one else who could deal with business matters. She confirmed she was acting as practice manger and on behalf of Graeme Marshall.[49]The claimant did not reply and the meeting proceeded in the claimant’s absence on 10 December 2019. The respondent and Ms Marshall decided to dismiss the claimant with immediate effect. The stated reasons for dismissal were that: 1 She was struck off the register and was unable to practice in the UK or use the title of dental nurse. This meant she was unable to meet the requirement so her employment contract. 2 She refused to provide written information or attend and investigatory meeting and a disciplinary meeting. 3 She was asked not to contact the respondent but continued to do so. She provided Ms Marshall’s personal information to her nephew leading to an inappropriate telephone call at work[50]The claimant has not received any further payment from the respondent.[51]The claimant has not attempted to find other work and is now working as a fulltime carer for her mother.[52]The respondent’s holiday year ran from 1 January to 31 December and was for 4 weeks plus public holidays. The claimant did not ask to take any holidays in 2019. Relevant law Unfair dismissalRelevant law
[53]This is a claim made under section 98 of the Employment Rights Act 1996 (the ERA). In a claim of unfair dismissal, it is for the respondent to establish a potential fair reason for dismissal under section 98(2). This includes a reason relating to conduct. Where there is alleged misconduct by an employee, the respondent does not have to prove to the tribunal that the misconduct occurred. They must show that they genuinely believed there was misconduct. The tribunal must also be satisfied that they had reasonable grounds for that belief having carried out a reasonable investigation in all the circumstances. This is set out in the case of BHS v Burchell [1978] IRLR 379.[54]Once a potentially fair reason has been established, the tribunal has to consider whether in the circumstances (which include the size and administrative resources of the respondent) it was reasonable for the respondent to treat that as sufficient reason for dismissal. (section 98(4)). There are a number of cases including Iceland Frozen Foods v Jones 1982 IRLR 439 which make it clear that when assessing reasonableness, it is not for the tribunal to decide whether it would have dismissed the claimant but whether an employer acting reasonably could have. There is a “range of reasonable responses” to the same circumstances where one employer acting reasonably may dismiss but another acing reasonably may decide not to. Provided the decision is one that an employer acting reasonably could make, that is sufficient for section 98(4). Redundancy payment[55]Where employment is terminated and the reason is redundancy, an employee with 2 or more years’ service is entitled to a redundancy payment calculated in accordance with section 162 of the ERA. Breach of contract (notice pay)[56]Section 86 of the ERA sets out minimum period of notice when employment is terminated. The respondent is required to give one week for every year of employment up to a maximum of 12 weeks. However, this does not affect the right of either party to terminate the contract without notice by reason of the conduct of the other party where that amounts to a material breach of contract. Unauthorised deduction from wages including holiday pay[57]Where an employee is paid less than the amount properly payable by way of wages, a claim can be made under s23 for the shortfall. This includes nonpayment of holiday pay. The Working Time Regulations 1998 (WTR) provide for 4 weeks annual leave plus public holidays (or an equivalent number of days leave). Statutory annual leave must be taken in the year in which it accrues and does not carry forward unless it was not reasonably practicable for the employee to take the leave and may not be substituted with a payment in lieu except in respect of the year in which the employment terminated (Regulation 13 of the WTR).[58]When considering a claim of unfair dismissal, the tribunal is looking at what the employer knew at the time (not information that came to light later) and assessing the reasonableness of their actions at that time. The tribunal should not consider whether it would have dismissed the claimant in the circumstances but whether no reasonable employer would have done so.[59]Three reasons were given for dismissal. These were:• the claimant’s failure to keep up her registration as a dental nurse,• refusing to provide the respondent with information and refusing to attend and investigatory meeting and a disciplinary meeting• continuing to contact the respondent directly having been asked not to do so.[60]In relation to the first of these reasons, it is not in dispute that the claimant was removed from the register. At the time of termination, it was not clear how or why that had happened. All that the respondent knew was that the GDC had confirmed that the claimant had been removed from the register for failing to comply with statutory requirements. The claimant stated in correspondence that this was due to failure to provide an indemnity declaration and she said that this was undertaken by the respondent “as a matter of custom and practice”. Her position was that “my removal came from Graeme’s failure to either notify myself or provide cover for the surgery”.[61]The respondent knew that he had paid the fee for registration and that the indemnity was still in place. He was also aware that, while he may have assisted with the process in the past, professional registration is the responsibility of the individual. He was unaware of how the removal had come about or whether, in fact, the removal was simply related to indemnity as the claimant had stated. The claimant was not willing to provide any further information nor to engage with the investigatory or disciplinary process which may have explained the circumstances.[62]I consider, therefore, on the Burchell test that the respondent genuinely believed that the claimant was guilty of misconduct (by failing to keep up her registration to enable her to practice as a dental nurse), that it had reasonable grounds for that belief and, in circumstances where the claimant was not prepared to engage further, that he had carried out a reasonable investigation.[63]The second charge of misconduct relates to a failure to provide information or engage with the disciplinary process. After the initial information, the claimant refused to engage any further or to attend meetings as required by the employer’s policy. The respondent was entitled to consider that misconduct. An employee should co-operate with an employer in a reasonable disciplinary process.[64]The third charge of misconduct related to the claimant having continued to contact the respondent having been asked not to do so. Although there is dispute about how often this happened, it is clear that the claimant did continue to try to contact the respondent directly having been asked not to and the respondent was clearly aware of that. Was it within the range of reasonable responses to dismiss for that reason?[65]So, I accept that the respondent had a potentially fair reason for dismissal (a reason related to conduct) and that this was the reason for dismissal. The question for me is whether it was reasonable (or within the range of reasonable responses) for the respondent to dismiss the claimant for these charges.[66]Starting with the failure to maintain registration, this is a fundamental requirement for a dental nurse to be allowed to practice. The claimant maintains that this was not a problem as she had not been acting as a dental nurse before the practice closed and was not doing so at the time she was dismissed. However, she was still employed as (and being paid as) a dental nurse. The fact that she was not being asked to undertake these duties at the time does not remove the requirement to keep up her registration. At the time the registration lapsed in September 2017, the respondent had still hoped to restart the practice. The lack of registration could have caused significant delay while that happened or if the respondent had decided to employ a locum or sell the business.[67]At the time the decision to dismiss was being made, it is true that the practice had ceased to operate and the respondent himself had decided not to renew his registration. However, that did not alter the fact that the claimant had been employed as a dental nurse and had been paid as such for many months. Had the claimant engaged with the respondent and explained what had happened, that she had never received the renewal or that she had understood this was a matter dealt with by her employer, things may have been different. However, with the limited information the respondent had, I do not consider it was unreasonable to dismiss the claimant for this reason. I consider it was also relevant that the respondent had been paying the claimant under her contract as a dental nurse for over a year, at significant personal cost, when she was not, in fact, complying with her obligations under her contract.[68]The second charge related to the claimant failing to provide information and to engage with the disciplinary process. The reasons given by the claimant during the hearing were that she would have been prepared to meet with her employer but she did not wish to engage with her employer’s wife, that she was not prepared to meet an unnamed third party and she considered there were security issues in meeting in a flat. The first point, I do not consider impacts on the reasonableness of dismissal. While it would be unusual for an employee to be asked to attend a disciplinary process with someone other than her employer, these were unusual circumstances. It is always open to an employer to appoint someone to carry out an investigation and/or a disciplinary procedure on its behalf.[69]The claimant knew that her employer was not fit to meet with her due to his mental health. This had been the position for almost a year. She was aware that Ms Marshall was dealing with his business affairs and she had been dealing with her for months without raising a concern. Ms Marshall confirmed to the claimant that she was acting as the Practice manager by the text message. It was reasonable for the respondent to require the claimant to engage with Ms Marshal in the disciplinary procedure.[70]If the claimant had genuine concerns about her security at the proposed venue or the attendance of an unnamed third party, as she suggested in her evidence, those would be legitimate concerns. However, the difficulty for Ms Daly is that she did not express any such concerns at the time as the reason for her nonattendance and I have to consider the respondent’s actions based on the information available to him at the time. Had such concerns been expressed, I have no doubt Ms Marshall would have made different arrangements. Instead she was met with a blank refusal to attend. I consider it was not unreasonable to dismiss for this reason.[71]The third charge relates to continued contact with the respondent when asked not to do so. I understand that Ms Marshall and the respondent found this difficult and categorised it as “harassment”. Without doubt it was insensitive of the claimant to contact the respondent about her wages within 48 hours of an attempt at suicide. She was also aware that the respondent was not in a position to deal with business matters. The claimant as aware that Ms Daly was dealing with the respondent’s affairs yet she continued to contact the respondent directly. There were repeated requests by Ms Marshall for the claimant not to contact the respondent directly.[72]On the other hand, it has to be recognised that the claimant continued to be employed by the respondent and she was not being paid. This was causing her significant financial difficulties. It was not surprising that she was trying to get answers to when she might expect payment. Ms Marshall’s focus was understandably on her husband’s health and their precarious financial position. However, this meant she seemed to have little regard to the fact that the claimant, through no fault of he own, was in limbo. She was not being paid but the respondent would not terminate her contract of employment and pay her a redundancy payment. While the claimant was still employed, she could not apply for benefits and could not receive the benefit of her mortgage protection insurance. I do not consider it was within the range of reasonable responses to dismiss the claimant for this reason.[73]However, as I have found that it was reasonable for the respondent to dismiss the claimant for her failure to renew her registration and for her failure to engage with the investigatory and disciplinary processes, that means that the claim for unfair dismissal does not succeed and is dismissed. Breach of contract – notice pay[74]The claim for notice pay is a claim for breach of contract, for dismissal without proper notice. Unlike unfair dismissal, where the claim is for breach of contract, the tribunal has to consider whether in fact there has been a breach. This is not about a range of reasonable responses.[75]If an employee is in fundamental breach of contract, then the other party (the employer) is entitled to terminate the contract without any notice. This applies equally to an employee who is not required to give any notice if the employer was in breach of contract. So, for example, as the respondent was not paying her wages, the claimant would have been entitled to resign from her employment without giving any notice.[76]The tribunal must make a determination as to whether there was a breach of a term of the contract and, if so, whether to was fundamental to the contract.[77]The respondent claims that the claimant was in breach of contract so that he was not required to give notice. Further he has made a counterclaim that the claimant should be required to repay the wages she was paid after her registration lapsed (so from September 2017).[78]Terms in contracts can be express (meaning they are set out in the contract) or they can be implied from the circumstances or by custom and practice. There is no express term in the claimant’s contract requiring her be registered with the GDC nor to keep up her registration. However, I consider such a term relating to registration is to be implied under the circumstances. The claimant was employed as a dental nurse and she was required to be registered in order to carry out this role. She was also required to complete the necessary continuous professional development. This term would be that the claimant would obtain the necessary registration and, having done so, would do whatever was necessary to retain her registration. This would include keeping the GDC informed of any change in details and completing any necessary paperwork. This is not affected by the fact that in August 2017 she was not practicing as a dental nurse. She could have been required to do so at any time and she was being paid her full salary under the contract. Similarly, there was no express term in the claimant’s contract that stated that the respondent would pay her registration fee or provide her indemnity but, from custom and practice, it was part of her contract that these would be done. The evidence at the tribunal was that the respondent did both these things.[79]I accept that the claimant did not receive the renewal notice in relation to her registration nor the correspondence which told her she had been removed and that she was unaware, until the respondent asked her about it, that she had been removed from the register. I accept that she did not fully understand the requirement for indemnity cover and that this was her responsibility to ensure that this was in place. However, in a scheme of professional registration, the obligation to keep details up to date and to ensure registration is up to date is personal and lies with the registrant and not the employer. It is clear that the claimant gave no thought at all to her registration until the matter was raised 2 years later by Ms Marshall.[80]I consider the breach of this implied term goes to the heart of her contract of employment as a dental nurse and was therefore a fundamental breach of contract. A fundamental breach entitles the respondent to terminate her contract without notice. This means there is no entitlement to notice pay and the claim for breach of contract is dismissed. Redundancy payment[81]As I have accepted that the reason for the dismissal was a reason relating to conduct, it follows that the reason is not redundancy. Therefore the claimant is not entitled to a redundancy payment. When the claimant made her original claim, it was unclear whether the claimant was saying that she had resigned by reason of redundancy (which she would have been entitled to do and claim a redundancy payment). However, it is clear from the evidence that she did not resign and instead that the contract continued until she was dismissed in December 2019. The claim for a redundancy payment is dismissed. Wages[82]This is a very unusual case. It is clear that the respondent could have terminated the claimant’s contract fairly much earlier than he did. The difficulty for him was that this would trigger an entitlement to a redundancy payment which he did not have the funds to pay. Instead, he continued to employ the claimant (when there was no job for her to do) for many more months while exploring the possibility of an insolvency procedure. That is his choice but the consequence of this was that, unless there was any agreement with the claimant to the contrary, the requirement to pay the claimant’s wages continued. The claimant could have resigned at any time but she did not do so and so the contract of employment continued. While the contract continued the claimant’s wages were properly payable under it and any underpayment can be claimed under section 23 of the ERA as an unauthorised deduction from wages.[83]There is a claim is for 41 weeks wages up until 30 September, there has been no application to amend the claim to include later periods and so the order of the tribunal is this respect is that the respondent has made an unauthorised deduction from wages and is ordered to pay to the claimant the sum of 41 x £342, being £14022. That is a gross figure and assumes that the claimant will be responsible for her own tax. If the respondent is required to make payments to HMRC in respect of this payment, that should be deducted. Holiday pay[84]The claimant was entitled to the statutory amount of annual leave (4 weeks plus public holidays). There is no general right to roll over unused annual leave from one year to the next. Annual leave should be used or it is lost except in special circumstances where it has not been practicable for an employee to take leave. There is no suggestion that this was the case here. The claimant could have taken leave at any time. She was receiving her full salary and there is no reason why the respondent would have refused that request.[85]The only time that payment in lieu of holidays can be made is where a contract is terminated and then for the current holiday year in which the termination take effect. The claimant’s contract was terminated in December 2019. The holiday entitlement for the year was for 4 weeks plus public holidays and it appears that the claimant has not taken any of that leave, excluding public holidays which are set days.[86]I therefore award 4 weeks as payment for accrued but untaken annual leave being £1368. Again, that is a gross figure and assumes that the claimant will be responsible for her own tax. If the respondent is required to make payments to HMRC in respect of this payment, that should be deducted. Employer’s contract claim[87]The respondent in his employer’s contract claim contends that as the claimant breached her contract by failing to keep up her registration, she is therefore not entitled to the sums she claims in respect of unpaid wages from January to September 2019. I do not agree.[88]If there was a fundamental breach of contract by the claimant (as I have found that there was), the respondent was entitled to terminate the claimant’s contract without the requirement to pay notice. However, the respondent did not do so until December 2019 (not least because he was unaware of the position) and so the contract continued. While the contract is in place, there is a requirement to pay the wages under it unless both parties agree to vary the contract.[89]In addition, the respondent argues that the claimant was not entitled to the wages that were paid to her by the respondent after her registration lapsed in September 2017. He argues that wages paid from September 2017 to December 2018 should be repaid to the respondent. Again, I do not consider that is correct in law. This is a claim by the respondent for damages for breach of contract. To succeed in such a claim, the damages must flow from the breach of contract.[90]There certainly was a breach of contract by the claimant in failing to maintain her registration. However, the “loss” claimed by the respondent of the wages that were paid from September 2017 to December 2018 is not caused by the claimant’s breach of contract. The requirement to pay wages was simply a consequence of the fact that the contract of employment continued and was not brought to an end by either party.[91]The failure by the claimant to keep up her registration did not, as matters transpired, cause any loss to the respondent. Matters would have been different if, for example, the respondent had wished to reopen the practice and because the claimant was not registered, that was delayed or he had to pay for another nurse. However, in this case, that did not happen.[92]As it has not been established that the breach of contract by the claimant caused any financial loss to the respondent, the respondent’s employer’s contract claim is dismissed.Relevant law
[1]The respondent’s application for strike out of the claim is refused.[2]The respondent’s application for the respondent’s counter claim to proceed as undefended is refused.[3]This case will be listed for a three day in person final hearing before a judge sitting alone on dates and times to be appointed.[4]Case management orders relating to that hearing are attached in an annex to this judgment.Relevant law
[1]In this case, a final hearing, which did not conclude, commenced on 6 January 2020. At that time the respondent was not represented. During the course of the hearing, the claimant made an application to amend her claim to include a claim for unfair dismissal. That application was subsequently granted. The claimant advised of an alternative address for the respondent and the amendment was intimated on the respondent at that updated address. The respondent’s subsequent application for his response to be allowed, although late, was granted. In the ET3 response, the respondent included an employer’s counter claim, which was in turn accepted by the Tribunal and that acceptance formally intimated to the claimant by letter dated 25 March 2020.[2]Mrs Marshall for the respondent then submitted two applications on 23 April 2020 - one for strike out of the claimant’s claim; and a second for the employer’s contract claim to proceed as undefended.[3]She had understood that these applications would be dealt with at the case management preliminary hearing which took place by telephone conference call on 17 June 2020. However, that was a misunderstanding. I advised at the preliminary hearing that I would consider the two applications by way of written submissions.[4]Miss Daly had confirmed at the hearing that she intended to defend the respondent’s counter claim and she opposed the respondent’s application for the claim to be dealt with on the basis that it was undefended. She also said that she opposes the respondent’s application for strike out.[5]The claimant was ordered to provide any further written submissions in support of her arguments by 1 July 2020. The respondent was given until 15 July to lodge any further written response to the claimant’s submissions.[6]Although this claim includes an employer’s contract claim, for the sake of clarity I will throughout this judgment refer to Miss Daly as the claimant, to Mr Marshall as the respondent and Mrs Marshall as the respondent’s representative.Background
[7]The claimant submitted an ET1 claim form on 23 September 2019, in which she claimed a redundancy payment, breach of contract, unlawful deduction from wages and outstanding holiday pay. No ET3 was lodged and the claim proceeded as undefended. At a final hearing which commenced on 6 January 2020, following the commencement of the hearing of evidence from the claimant who had affirmed, it became clear that while the claim had been submitted on 23 September 2019, subsequent events indicated that the claimant had apparently been formally dismissed for gross misconduct on 12 December 2019.[8]In the circumstances, the claimant advised that she intended to make an application to amend the claim to include a claim for unfair dismissal, it being apparent that the claimant had not been made redundant prior to the date of her dismissal.[9]By e-mail dated 10 January 2020, the claimant made a written application to amend the claim to include a claim for unfair dismissal. This was copied to the respondent at the updated address. Mrs Marshall responded on behalf of the respondent in an e-mail dated 31 January, followed up by an e-mail of 10 February. She was advised that if the respondent intended to defend the claim, he would require to make an application for the response to be received although late with a draft of the ET3 response. That application, made on 25 February, was accepted although late.[10]The claimant was sent a copy of the ET3 by the respondent and she sent in an e-mail in response dated 15 March and a further e-mail on 25 March 2020.[11]The ET3 response included an employer’s contract claim which was accepted on 24 March 2020. The Tribunal’s acceptance of the respondent’s counter claim was formally intimated on 25 March 2020. That letter set out how the claimant should respond and indicated that a formal response should be submitted to the Tribunal by 22 April 2020.[12]Mrs Marshall sent an e-mail to the Tribunal on 23 April 2020 enclosing two letters. Miss Daly was copied in and she confirmed at the preliminary hearing that she had received the e-mail and the letters. One letter related to the respondent’s application for the employer’s contract claim to proceed as undefended, and for the other for the claim to be struck out, as stated above.[13]I deal with each of these applications in turn. In making my decision, I considered the following documentation:(i) The respondent’s letters dated 23 April 2020;(ii) The claimant’s e-mails dated 15 and 25 March, and subsequent emails sent 17 June and 26 June (submitted at 16.18) and a second e-mail submitted on 26 June (at 21.07);(iii) The respondent’s two separate responses dated 2 July (one sent by e-mail at 00.07 and the other at 09.17). Respondent’s application for counter claim to proceed as undefended[14]Miss Daly at the preliminary hearing explained that she had received a copy of the ET3 response on 26 February, and that she had responded to its contents in an e-mail dated 15 March. She had been under the impression that the email she had sent in dated 15 March represented her response to the respondent’s ET3.[15]In that e-mail dated 15 March, the claimant said that she was commenting on certain points raised in the ET3, and responded to certain substantive claims made by the respondent. The claimant sent a follow up e-mail dated 25 March having been requested to provide further information by Employment Judge Whitcombe.[16]The Tribunal’s acceptance of the respondent’s counter claim was not officially intimated until the letter of 25 March 2020, requiring a formal response by 22 April 2020. The claimant did not however submit a formal response, as she was under the impression that the e-mail of 15 March was sufficient. She confirmed that she intended to defend the contract claim but had not sent in any other official response.[17]By letter dated 23 April Mrs Marshall stated that she was making an application in terms of rule 21. I understood Miss Marshall to mean by that given Miss Daly had not submitted a formal response by 22 April 2020 as required, the Tribunal should treat the respondent’s counter claim as undefended and proceed to deal with it and issue judgment in the respondent’s favour.[18]In that letter Mrs Marshall stated as follows: “I am writing to the Employment Tribunal to request application of rule 21 to the above case. The Respondent [that is the claimant] has failed to present an appropriate response as required by rule 16. The date given for submission was 22 April 2020, which has now passed. In her email submission to the Employment Tribunal of 15 March 2020, the respondent attached correspondence from the General Dental Council (GDC) which confirms a substantial part of our case. The aforementioned GDC letter also highlighted where further information may be obtained in the GDC documents”.[19]Miss Daly confirmed that she had received both letters dated 23 April and had contacted the Tribunal for guidance. Although she had forwarded a copy of Mrs Marshall’s e-mail as requested, no one from the Tribunal administration had got back to her. The next time she heard from the Tribunal was to advise that a case management preliminary hearing would take place on 17 June 2020.[20]Although the claimant’s email to the Tribunal was not on the file, it was confirmed to me by a member of Tribunal staff who double checked e-mails which had been sent in relating to this case, that the claimant had contacted the Tribunal for advice and had apparently been told to send in a copy of the respondent’s e-mail. Although the claimant did forward the e-mail, no-one responded to give her any advice (or indeed even to acknowledge the correspondence), it seems because that letter did not state that advice was sought, so that the clerk who received it did not understand what it related to.[21]At the preliminary hearing on 17 June, Miss Daly confirmed that she intended to oppose the respondent’s counter claim and I advised her to submit a formal response as required by the rules, including making an application for an extension of time to lodge the response. I made a case management order that she should provide a response to the respondent’s application under rule 21 (for an undefended judgment in respect of the respondent’s counterclaim).[22]In response, Miss Daly set out in an e-mail dated 26 June 2020 (at 16.18) the text of the e-mail which she had sent to the Employment Tribunal on 15 March 2020. She sent a further e-mail dated 26 June 2020 (at 21.07) which included a two page substantive response to the respondent’s ET3 and counterclaim, together with supporting documentation.[23]By letter dated 2 July 2020 sent in by e-mail that day at 00.07, the respondent provided further support for the application under rule 21, which centres on the claimant’s failure to submit an appropriate response by the due date of 22 April 2020. Mrs Marshall submits on behalf of the respondent that the claimant was aware that the address to which the ET1 was sent was no longer receiving mail and that the claimant already had the respondent’s new address by March 2019, and notwithstanding used the address of her former place of employment on the ET1 form. She submits that the claimant knowingly entered an out of date address for the respondent on her ET1 form to prevent the ET1 being served.[24]She submitted further that the claimant had not followed the instructions set out in the PH note in respect of responding to the employer’s contract claim and in particular had not made a request for an extension of time to do so. She submitted that the responses submitted (dated 26 June) fail to address many of the elements of the employer’s contract claim and neither e-mail confirmed that she wishes to oppose the applications under rule 21.[25]She submitted further that the response to the employer’s contract claim fails to dispute many of the claims made and is not on a prescribed form as per rule 16(1). She submitted that an appropriate formal response to the ECC had not been provided by 22 April or 1 July 2020 and no request for extension of time has been submitted by 1 July 2020, and no reason explaining why an extension was sought had been provided. She submitted that neither email satisfies the order of the Tribunal and the deadline for submission has now passed. She submits that the claimant has breached rule 6 – non-compliance with an order of the Tribunal - and rule 16 – the requirement to provide a response. She submitted that although Miss Daly is not legally represented, she has had sufficient time to obtain advice or even to research the rules of the Tribunal, such advice being available from solicitors or the CAB despite the problems caused by COVID 19. She submitted that it would not be fair to allow the claimant a further extension of time.[26]While I accept that the claimant has not, in terms, requested an extension of time to lodge a defence to the employer’s contract claim, or said, in terms, that she intends to oppose the application, the claimant has set out in her e-mail of 26 June 2020 a further substantive defence to the employer’s counter claim to supplement what she submitted on 15 March. The claimant explained at the preliminary hearing that she intended to defend the employer’s counter claim and that her position has not changed is implicit in her e-mail.[27]Employer’s counter claims are relatively rare proceedings in the employment tribunal. The rules relating to them are not necessarily clear. Indeed, despite the respondent’s reference to rule 16 and a prescribed form, that as I understand it relates to the requirement for the respondent to include their employer’s contract claim on the prescribed form. There is no prescribed form in which a claimant would respond to an employer’s contract claim. An e-mail therefore will suffice.[28]I therefore accept the e-mails dated 15 March and 26 June as a response to the employer’s counter claim, confirming that the claimant intends to defend the claim. The order of 17 June required the claimant to provide to the respondent and to the Tribunal a response to the respondent’s application in terms of rule 21 by 1 July 2020. The claimant provided a response dated 26 June 2020. Although that response may not satisfy the respondent, I accept that it is a response in fulfilment of that order.[29]To the extent that it is necessary, I waive the requirement for the claimant to set out in terms in writing her request for an extension of time, as I am permitted to do by rule 6 of the Employment Tribunal Rules.[30]I should point out that time limits which go to jurisdiction (that is where time limits are set out in the substantive law creating rights for employees and workers to pursue claims in the employment tribunal) require to be strictly adhered to. However, the time limits which are set out in the rules which do not go to jurisdiction are apt to allow further lee-way to parties, as was the case with the respondent in this case who was permitted considerable latitude to lodge a defence to the claim (even from the respondent first having knowledge of the claim which I understand to be on or around January 2020).[31]The respondent’s application for the employer’s contract claim to proceed as undefended is therefore refused. Respondent’s application for strike out[32]Mrs Marshall for the respondent also makes an application for the claim to be struck out, as set out in her letter of 23 April. At the preliminary hearing, Miss Daly confirmed she had received that letter, and sought advice about from the Tribunal which was not forthcoming, due to an administrative error as discussed above.[33]The respondent’s letter of 23 April is an application for the claimant’s claim to be struck out under rule 37 because the claim is vexatious and for the following reasons:(i) The claimant had failed to submit a response to the employer’s contract claim by 22 April as required; this indicates that the claimant is not actively pursuing that claim in terms of 37(1)(d);(ii) The claimant knowingly provided the Tribunal with an out of date address for the respondent in her ET1 submission, and that she had sent proof of that by submitting a text message sent to the claimant in March 2019. She submitted that “knowingly supplying an inappropriate address may be considered a vexatious act designed to prevent the respondent’s involvement in an employment tribunal case”;(iii) the claimant’s nephew made a vexatious and inappropriate telephone call to Mrs Marshall after receiving a letter inviting her to an investigatory hearing;(iv) The claimant made a vexatious and malicious complaint to the NHS regarding Mrs Marshall, which complaint was passed to Mrs Marshall’s employer; considerable NHS resources were wasted investigating the complaint which was not upheld;(v) The claimant has provided no supporting details in her ET1 form which suggests that the claimant has failed to actively pursue her claim under rule 37(1)(d);(vi) The claimant has provided a number of false statements in her communications with the employment tribunal, which claims Mrs Marshall rehearsed in the letter and submitted that these demonstrate that the claimant has little respect for the rules or the Tribunal in pursuit of a vexatious claim.[34]In response, the claimant sets out in the email of 26 June the arguments which she will rely on to support for her claim and her response to the respondent’s counter claim.[35]Mrs Marshall responded to that in a letter dated 2 July consisting of 19 pages and 17 appendices. This is largely a repetition and expansion of the points previously made in her letter of 23 April, providing additional detail of the respondent’s substantive claim and defence, and a good deal of background information.[36]In addition, Mrs Marshall submitted that Miss Daly had failed to respond to the Tribunal’s order of 17 June to supply a response to the strike out application. She submitted that the e-mail response supplied (dated 26 June) does not confirm that the claimant wishes to oppose the application and nor does it represent a formal response to an employer’s contract claim. Given her failure to provide such a document, the claim should be struck out in terms of rule 37(1)(c) for failure to comply with an order of the tribunal.[37]Mrs Marshall repeated her accusations about the number of false and misleading statements submitted in writing to the Tribunal by Miss Daly. She offered to provide further “documents to demonstrate the deliberate factual omissions and falsehoods provided by Miss Daily in support of her claim”.[38]She repeated her submission that the claim should be struck out because the claimant has made a vexatious claim, and also submitted that she had behaved unreasonably, and such that it was not possible to have a fair hearing in respect of the claim or response in terms of rules 37(1)(a), (b) and (e).[39]Miss Daly advised at the preliminary hearing that she intended to oppose the respondent’s application for strike out. While she has not in terms stated in her response of 26 June that she intends to oppose the respondent’s application, I accept that the response which she has provided (dated 26 June) is a response which implements the Tribunal order of 17 June 2020 and confirms her opposition to the application for strike out. I therefore reject the respondent’s contention that the claimant has failed to comply with an order of the Tribunal.[40]With regard to the respondent’s other submissions in support of the application for strike out, I do not accept that it could be said that the claimant’s actions indicate that the claim has not been actively pursued; quite the opposite. The claimant has made it clear by her actions that she intends to pursue her claim and to oppose the counter claim.[41]With regard to the respondent’s assertions that the claim should be struck out because it is vexatious, the manner in which it is brought unreasonable or that it is not possible to have a fair trial, I reject those submissions for the following reasons.[42]The respondent suggests that the claimant deliberately included the business address in order to avoid the respondent becoming aware of the claim. The respondent’s so-called proof of that is an assertion that the claimant was aware that the business address was no longer receiving mail and she was corresponding with the respondent at an alternative address (as suggested in a text). Mrs Marshall does not believe the claimant when she asserts that she was advised by ACAS to use the business address. This is a matter of dispute between the parties, but in any event the important matter is that the respondent is now aware of the claim (the claimant having supplied an alternative address) and the respondent has been permitted to defend it. A judgment against a respondent who could not be traced through the stated address would be of no value of the claimant, and once traced any judgment would in all likelihood have been revoked in order for the respondent’s defence to be heard.[43]Nor do I accept that the claimant has deliberately “omitted pertinent facts” including “being struck off from her professional register”. Again, this is clearly matter of dispute between the parties. Mrs Marshall says that it is reasonable for her to say that the claimant was “struck off” (by reference to a dictionary definition) whereas Miss Daly’s position is that she was “removed” from the register as a result of the actions of the respondent (and indeed I note that removal is the term used in the letters from the GDC which the claimant has submitted to support her claim).[44]These, and indeed many other issues which are clearly in dispute between the parties, will require to be adjudicated on by the Tribunal after hearing evidence from both parties and their witnesses, and considering the documents lodged by both parties to support their respective claims. The documents which Mrs Marshall has submitted do not “prove” her claim and defence, in the same way that the documents produced by the claimant do not prove her claims. The Tribunal will require to hear supporting oral evidence from parties regarding these documents.[45]It is a matter for the Tribunal to assess at a hearing on the evidence whether the claimant has submitted false information and it is a matter for the Tribunal to assess having heard evidence whether the claimant is a reliable and truthful witness or not. The Tribunal requires to hear evidence from all of the witnesses for both sides, to consider the documents, to make assessments as to their credibility and reliability, to make findings of fact based on the evidence heard and to provide a reasoned opinion as to how the law has been applied to those findings in fact in order to come to a decision whether the claimant’s claim and/or the employer’s counter claim should succeed.[46]This claim cannot be determined on the basis of assertions and documents alone. A hearing will require to take place to allow the Tribunal to consider the claims and defences of both parties.[47]I do not accept therefore that it can be said that this is a vexatious claim (the respondent having accepted that the claimant has been dismissed on grounds of gross misconduct); I do not accept that at this juncture that it can be said that the claimant has submitted false information; I do not accept that on the basis of the information which I have that it can be said that it is not possible for a fair trial to proceed. I therefore reject the respondent’s application for the claimant’s claim to be struck out, and determine that the claim should proceed. Further procedure[48]A hearing will therefore require to be listed in this case in order to hear evidence. Unfortunately, no in person hearings can currently be listed in light of the Presidential Guidance on the Covid-19 Pandemic issued 18 March 2020 and subsequent directions. Consideration requires to be given in the first instance to alternative ways of progressing claims, such as a remote hearing by video conference.[49]Having discussed this matter at the preliminary hearing on 17 June, and having subsequently considered the paperwork in this case in some detail, and taking account of the Presidential Guidance, I remain of the view that it would not be in the interests of justice to have a hearing by video conference.[50]This case will therefore require to be listed for an in person final hearing for three days before a judge sitting alone. The undernoted case management orders are issued in regard to preparations for that hearing. These case management orders should be considered carefully by both parties in order to ensure compliance. Employment Judge: Muriel Robison Date of Judgment: 20 July 2020 ANNEX - CASE MANAGEMENT ORDERS Under Rule 29 of the Employment Tribunals Rules of Procedure 2013, the following case management orders are issued for the purpose of the final hearing in the above proceedings:-Background
[1]No later than 28 days prior to the final hearing, the parties shall provide copies to each other of any documents upon which they intend to rely.[2]Each party shall prepare a set of documents, in chronological order and with numbered pages, incorporating all documentary productions intended to be referred to at the hearing, and shall bring to the hearing the required number of copies as indicated in the Notice of Hearing.[3]The claimant shall send to the respondent, copied to the tribunal no later than 28 days prior to the final hearing, a written statement with supporting documentation setting out:-(a) what the claimant seeks by way of remedy if the claim succeeds.(b) if the claimant seeks the remedy of compensation, how much is sought in respect of each complaint with a detailed explanation of how each sum is calculated;(c) details of any benefits received;(d) a summary of jobs applied for, details of any interviews attended or jobs obtained and details of any income whether from temporary, casual or permanent employment or self-employed work;(e) details of any other efforts made by the claimant to minimise her loss.[4]The claimant shall provide to the respondent, with a copy to the tribunal, no later than 7 days before the final hearing, an updated written statement of the calculation of the sum claimed (together with copies of supporting Notes(1) You may make an application under Rule 29 for this Order to be varied, suspended or set aside. Your application should set out the reason why you say that the Order should be varied, suspended or set aside. You must confirm when making the application that you have copied it to the other party(ies) and notified them that they should provide the Tribunal with any objections to the application as soon as possible.(2) If this order is not complied with, the Tribunal may make an Order under Rule 76(2) for expenses or preparation time against the party in default.(3) If this order is not complied with, the Tribunal may strike out the whole or part of the claim or response under Rule 37.