Ms V Joyce v The Beeches Home Care Agency Ltd: 4111249/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4111249/2019

Venue Glasgow

Hearing 17 February 2020

Between

Ms Valerie JoyceClaimant

The Beeches Home Care Agency LtdRespondent

Before

Employment Judge I McPherson

Mr Stewart Healey (instructed by Solicitor) for claimant

The Beeches Home Care Agency Ltd Respondents for claimant

Represented by: for claimant

Mr James Steele for claimant

Director for claimant

Date 26 April 2021

JUDGMENT

The judgment of the Employment Tribunal is that:(1) Having heard oral submissions from parties’ representatives, at this Hearing, the Tribunal, in terms of Rule 48 of the Employment Tribunals Rules of Procedure 2013, converted the listed Final Hearing into a Preliminary Hearing, to consider the respondents’ opposed Rule 20 application intimated on 17 February 2020 to be allowed an extension of time to lodge a late ET3 response defending the claim.

(2) Further, having heard both parties’ representatives, and thereafter proceeded to deliver oral judgment, the Tribunal granted the respondents’ opposed application made at this Hearing , under Rule 20 of the Employment Tribunals Rules of Procedure 2013, for an extension of time for presenting their ET3 response and, having done so, the Tribunal allowed the ET3 response submitted late for the respondents at this Hearing to be accepted by the Tribunal, and the case to proceed as defended on both liability and remedy, noting that the respondents’ representative confirmed at this Hearing that section 7 of that ET3 response had been completed in error, and that the respondents are not seeking to bring an employer’s contract claim against the claimant.

(3) The Tribunal instructs the clerk to the Tribunal to serve a copy of the now accepted ET3 response on the claimant’s representative, and on ACAS, when issuing this Judgment to both parties’ representatives.

(4) Further, the Tribunal ordered that the claim and response shall be listed for a two hour Case Management Preliminary Hearing, in private, before Employment Judge Ian McPherson, whom failing another Employment Judge, sitting alone, at the Glasgow Employment Tribunal, on Thursday, 26 March 2020, starting at 10.00am, to determine further procedure, including listing the case for Final Hearing on dates to be hereinafter assigned by the Tribunal in the proposed listing period of June, July or August 2020, listing the case for full disposal, including remedy if appropriate.

(5) Case management orders made by the Tribunal, in terms of Rule 29 of the Employment Tribunals Rules of Procedure 2013, for completion and return of further and better particulars of the respondents’ specific grounds of resistance to the factual and legal basis of the claim, and for both parties’ representatives to complete and return Case Management Preliminary Hearing agendas, as originally issued with Notice of Claim sent by the Tribunal on 4 October 2019, are made under separate cover, in a separate written Note and Orders of the Tribunal, issued along with this Judgment.

(6) In respect of the respondents’ undertaking given at this Hearing, and in terms of Rules 75(1), 76 (1)(a) and (c) and (2), and 78(1)(e) of the Employment Tribunals Rules of Procedure 2013,the Tribunal orders that the respondents shall, within 7 days of this Preliminary Hearing, pay to the claimant’s solicitors, at Livingstone Brown, by BACS transfer, the sum of Five hundred and forty pounds (£540.00), being £450 plus VAT, as the agreed amount of legal expenses incurred by the claimant in respect of her solicitor’s preparation for and attendance at this Hearing, such expenses being acknowledged by the respondents as due and payable by them on account of their negligent failure to defend the proceedings at any earlier stage, being unreasonable conduct of the proceedings, and the listed Final Hearing has been postponed or adjourned on their application, and that less than 7 days before the listed Final Hearing.

REASONS

[1]This case called before me on the morning of Monday, 17 February 2020, at 10.00am, for a Final Hearing, further to Notice of Final Hearing issued by the Tribunal to both parties on 19 December 2019.

[2]Following ACAS early conciliation between 14 and 28 August 2019, the claimant, represented by her solicitor, Mr Stewart Healey, from Livingstone Brown, Solicitors, Glasgow, presented an ET1 claim form to the Employment Tribunal on 26 September 2019, complaining that she had been unfairly dismissed by the respondents from her job as a carer on 31 May 2019, and further complaining that she was discriminated against on the grounds of disability, and that she was owed notice pay. In the event that her claim was to be successful, the claimant sought an award of compensation from the Tribunal.

[3]The claim was accepted by the Tribunal on 4 October 2019, and a copy of the claim was served on the respondents, on that date, requiring them to lodge an ET3 response at the Glasgow Tribunal office by 1 November 2019. In that Notice of Claim, and Notice of Preliminary Hearing, it was explained to the respondents that if their response was not received by 1 November 2019, and no extension of time had been agreed by an Employment Judge before that date, then they would not be entitled to defend the claim.

[4]It was further explained that, where no response was received or accepted, an Employment Judge might issue a Judgment against them without a Hearing and they would only be allowed to participate in any Hearing to the extent permitted by an Employment Judge.

[5]Further, that Notice of Claim and Notice of Preliminary Hearing, sent to both parties by the Tribunal on 4 October 2019, stated that if a response was accepted, a Case Management Preliminary Hearing would be held by an Employment Judge sitting alone, and Friday, 10 January 2020, at 2.00pm, was allocated for that Preliminary Hearing to be conducted in private. Both parties were sent Preliminary Hearing agendas for completion and return, by the claimant’s solicitor no later than 21 days before that Preliminary Hearing, and by the respondents no later than 7 days before that Preliminary Hearing.

[6]No ET3 response form having been received, by the due date of 1 November 2019, or at all, on 5 November 2019, the case file was referred to Employment Judge Rory McPherson, as duty judge, for further direction. He did not consider it appropriate to issue a Default Judgment under Rule 21 of the Employment Tribunal Rules of Procedure 2013 and, instead, he instructed that the case be listed for a Final Hearing before an Employment Judge sitting alone, and he further directed that standard Case Management Orders be issued for the purpose of that Final Hearing.

[7]In furtherance of Employment Judge Rory McPherson’s instructions, the Case Management Preliminary Hearing listed for Friday, 10 January 2020, at 2.00pm, was postponed, and relisted as a Final Hearing, and Notice of Final Hearing was issued to both parties by the Tribunal on 6 November 2019, assigning Friday, 10 January 2020, at 2.00pm for that Final Hearing, where one hour was set aside for its full disposal, including remedy if appropriate.

[8]That Notice of Final Hearing was sent to the respondents, for information only, and it stated that the respondents were entitled to attend the Final Hearing but would only be able to participate to the extent permitted by the Employment Judge who would hear the case.

[9]Further, on 11 November 2019, Employment Judge Claire McManus signed standard Case Management Orders, for the purpose of that Final Hearing, which were issued to the claimant’s solicitor. In terms of standard order no. 3, the claimant was ordered to send to the respondents, and copy to the Tribunal, within the following 21 days, a written statement with supporting documentation setting out her Schedule of Loss, detailing the remedy she sought from the respondents, if her claim succeeded, and showing how much was sought in respect of each complaint with a detailed explanation of how each sum was calculated, together with details of any benefits received, summary of jobs applied for, etc, and details of any other efforts made by her to minimise her loss.

[10]Thereafter, by letter dated 25 November 2019, from Mr Healey at Livingstone Brown, to the Glasgow Tribunal office, he sought clarification of the length of the hearing, given the Notice of Final Hearing, stated, at one point, that one hour had been set aside for its full disposal, although, at a later point, it referred to one day.

[11]Following referral to Employment Judge Mark Whitcombe on 26 November 2019, he directed that he thought the case required a full day and, accordingly, a fresh date listing stencil was issued to the claimant’s solicitor, following which, it no longer being able to accommodate a one day Final Hearing on 10 January 2020, fresh Notice of Final Hearing was issued by the Tribunal to both parties, on 19 December 2019, setting aside one day for the case’s full disposal, including remedy if appropriate.

[12]That Notice of Final Hearing was sent to the respondents, for information only, on the same basis as the previous Notice of Final Hearing issued to them on 6 November 2019. Final Hearing before this Tribunal

[13]When this case called before me, shortly after 10.00am, the claimant was in attendance, represented by her solicitor, Mr Healey. The respondents were not in attendance, nor represented, which, given no ET3 response had been lodged on their behalf, was not unexpected. Mr Healey, the claimant’s solicitor, lodged a Bundle of Documents, comprising 10 documents in total, including a Schedule of Loss, seeking a total award of compensation from the respondents in the sum of £18,403.

[14]From my pre-read of the case file, and quick perusal of the Bundle provided to the clerk for my use, I started the Final Hearing by raising a number of questions of clarification for Mr Healey, as the claimant’s solicitor.

[15]As per document 7 in his Bundle, being a print from Companies House, I stated that the search conducted by the Tribunal, on the online Companies House website, similarly disclosed that the Beeches Home Care Agency Limited (Company No SC181289) is an active company, with a registered office address at 1 Moorfield Lane, Gourock, Inverclyde, PA19 1LN. That was the name of the respondents on the ACAS early conciliation certificate, and on the ET1 claim form presented to the Tribunal.

[16]I commented, however, that from some of the other documents in the claimant’s Bundle, in particular the letters at documents 1, 2, 3 and 4, being letters of 17, 21 and 31 May 2019, they had a letter heading simply stating “The Beeches”, and an address of “The Beeches Home Care Agency, Suite 1 Midholm, 2 Hillview Drive, Clarkston, Glasgow, G76 7JD” and that those letters did not disclose that the employer was a limited company, contrary to the requirements of the Companies Act.

[17]Further, I noted, from the 9 wage slips, provided at document 6 in the claimant’s bundle, that they were in the name of “The Beeches Home Care Agency”, but without the addition of the “Limited”, and they gave the Midholm, Clarkston, address. Similarly, I stated that, from a search of the online Care Inspectorate website, Beeches Home Care Agency Limited was shown as having a service address at Midholm, Clarkston, and a Joy Currie was shown as the manager

[18]I further noted, from the copy letter of dismissal, dated 31 May 2019, included in the claimant’s Bundle as document 4, that Joy Currie had issued the letter of dismissal issued to the claimant, to which Mr Healey advised that the respondents’ registered office address was that used in the ET1 claim form, that address is where the claimant trained, but he further explained that she worked in individual client’s homes, from time to time.

[19]Mr Healey queried whether he would need to proceed with this Final Hearing, or have the claim form reserved on the respondents at that Midholm, Clarkston address. He advised that there had been no contact by the respondents with the claimant, or him as her solicitor, since the Tribunal proceedings were raised.

[20]I referred Mr Healey to the terms of Rules 86 and 90 of the Employment Tribunals Rules of Procedure 2013, and stated that I was satisfied, the ET1 claim form having been served on the respondents’ registered office, and that claim form, and subsequent Notices of Final Hearing, not having been returned as gone away, or undelivered, that service was proved, there being no evidence to the contrary.

[21]I enquired of him as to whether he was ready to proceed with the claimant’s evidence at this Final Hearing. Mr Healey stated that he was conscious that, the respondents still being in existence as a limited company, but not having lodged an ET3 response defending the claim, that while a copy of the Tribunal’s judgment would be sent to them, there remained a possibility that they might seek reconsideration of that judgment, on the basis that they had not received proper service of the claim form.

[22]Mr Healey further stated that the claimant was employed by the limited company, although he accepted that neither the payslips, nor letters lodged in the claimant’s Bundle, referred to it as a limited company, and, when he confirmed that the Beeches Home Care Agency Limited was the claimant’s employer, the claimant produced, as much to his surprise, as to mine, an ID badge, and lanyard, in the name of “Karma Healthcare”, giving the claimant’s name (“Val Joyce”) and security number 0000852, with the words “Beeches Home Care” on the lanyard.

[23]In light of this disclosure by the claimant, Mr Healey requested, and I granted, him an adjournment of half an hour to allow him to investigate, and take instructions from the claimant.

[24]Before adjourning proceedings, at around 10.47am, I clarified with Mr Healey certain issues arising from my pre-read of the paper apart to the ET1 claim form. He confirmed that the word “purses” in paragraph 5 should read “purposes”; that the words “the client” in paragraph 14, should state “the claimant”, and that the reference in paragraph 25, to the claimant’s comments as described in paragraph 15, should have referred to paragraph 14.

[25]Further, Mr Healey confirmed that the claim of unfair dismissal, and disability discrimination, was being insisted upon by the claimant, in terms of the various statutory provisions referred to at paragraphs 24 to 30 of the ET1 paper apart, and that paragraph 30 should be read, given its terms of “something arising in consequence of her disability”, as being a complaint by the claimant in terms of Section 15 of the Equality Act 2010.

[26]Further, in respect of the two “disclosures” relied upon by the claimant, as being protected disclosures, paragraph 24 relates back to paragraph 7, and the oral disclosure, in February 2019 to the claimant’s manager, Joy Currie, while the disclosure at paragraph 14 referred to an oral disclosure, again to Joy Currie, the claimant’s manager, who chaired a staff meeting held sometime in early May 2019.

[27]When this Hearing resumed at around 11.25am, the claimant’s solicitor, Mr Healey, advised me that he had spoken with a Mrs Dhesi, the respondents’ managing director, and he stated that she had accepted that the respondents were formerly the claimant’s employer, that they had located the Tribunal’s paperwork, and they would be defending the claim, and that while Blair & Bryden, Solicitors, Greenock, were their usual solicitors, they had not managed to get through to them as yet.

[28]To save costs for his client, recognising that the respondents would likely seek an extension of time to defend the proceedings, Mr Healey raised the question of whether or not the Final Hearing should be postponed. In discussion with him, I stated that it might be appropriate to convert the Final Hearing into a Preliminary Hearing to allow the respondents to appear, or instruct solicitors to appear, and make a Rule 20 application to lodge a late ET3 response.

[29]Following a further short adjournment, where Mr Healey left, to make a further telephone call to Mrs Dhesi, when he returned, shortly before 11.35am, he stated that Mrs Dhesi would email the Tribunal. I adjourned the Final Hearing, at that stage, to await communication from Mrs Dhesi. Application by Respondents for postponement of the Final Hearing

[30]By email from Kelly Dhesi, managing director of the respondents, sent to the Glasgow Tribunal office at 12 noon, on 17 February 2020, she stated as follows: “As the respondent we fully intend to submit a defense (sic) in the case 4111249/2019. It is our position that the claimant was not discriminated against not (sic) was the claimant unfairly dismissed. We have not responded to this claim due to losing the paperwork during an office refurbishment. Due to this may we request a delay to the final hearing in order for our legal representation to submit a formal defense (sic) in the above claim. Postponement of the final ET hearing would afford us the opportunity to provide our side of the story and ensure a just outcome.”

[31]That email, sent by Mrs Dhesi from a Karma Healthcare Limited email address, was not copied to the claimant’s solicitor, as required by Rule 92. When it was brought to my attention, I instructed the Tribunal clerk to provide a hard, paper copy to Mr Healey, the claimant’s solicitor, for his information, and I also instructed that a response be sent by the Tribunal, to Mrs Dhesi, by email, and copied to Mr Healey.

[32]The Tribunal’s reply, written on my instructions, referred to Mrs Dhesi’s email, that the Final Hearing had called before me at 10am that morning, and Mr Healey, the claimant’s solicitor, had advised me of his telephone conversations with her, and that the Final Hearing had then been postponed to 2.00pm that afternoon to allow the respondents to appear, and/or instruct Blair & Bryden Solicitors, Greenock, to appear and make a Rule 20 application to be allowed to lodge a late ET3 response.

[33]A copy of Rule 20 was attached to the Tribunal’s email reply, for Mrs Dhesi’s assistance, and she was asked to consult with her solicitors urgently, and confirm if they/she would be attending at 2pm, and to send/bring a completed ET3 response form. Final Hearing converted into Preliminary Hearing

[34]When the case was due to call again at 2.00pm, there was still no appearance by, or for the respondents, although a telephone call had been received by the tribunal administration advising that they were en route. Mr Steele attended, while Mrs Dhesi, was parking their car, and he provided to the Tribunal clerk a completed ET3 response form, which I had the clerk copy for myself, the Tribunal’s case file, and Mr Healey, before this now Preliminary Hearing started at around 2.25pm.

[35]At that stage, Mrs Dhesi stated that the respondents were first aware of the Tribunal Hearing earlier that morning when Mr Healey had phoned her, and she confirmed that she, and Mr Steele, were both directors of the company, and that its registered office was at 1 Moorfield Lane, Gourock, the address provided by the claimant in the ET1 claim form.

[36]When asked about the reference in her email, of 12 noon, to “losing the paperwork during an office refurbishment”, Mrs Dhesi explained that just before Christmas, on some date in December 2019, correspondence from the tribunal was received at the respondents’ registered office, and it was something to do with a date for Hearing, and a Preliminary Hearing, as she recalled matters. She explained that the correspondence received was misplaced by a new member of staff, employed as a PA to herself as managing director.

[37]Having heard Mrs Dhesi’s explanation, I stated that, from the timeline evident from me, from perusal of the Tribunal’s case file, it appeared to me that the timeline was as follows: -• ACAS Early Conciliation – 14–28 August 2019;

• ET1 – presented on 26 September 2019 – served on the respondents on 4 October 2019, with Notice of Claim and Notice of Preliminary Hearing;

• Notice of Final Hearing, issued to both parties on 6 November 2019;

• Case Management Orders issued to the claimant’s solicitor on 11 November 2019;

• Notice of Final Hearing issued to both parties, on 19 December 2019, intimating Monday, 17 February 2020 at 10am, for 1 day for full disposal, including remedy if appropriate.

[38]When, having intimated this timeline, I enquired of Mrs Dhesi whether she was sure that paperwork had first been received sometime in December 2019, she stated that she was not sure. She recalled getting two letters, one referring to a Hearing on 17 February 2020, and another letter saying something about a Preliminary Hearing.

[39]She then stated that she had received the Tribunal’s letters of 4 October and 19 December 2019, and confirmed that the respondents had taken no action after receipt of the Notice of Claim sent to them on 4 October 2019. Looking at the letters of 4 October and 19 December 2019, which she had brought with her to the Tribunal, Mrs Dhesi accepted that, on page 1 of the Notice of Claim dated 4 October 2019, it was clearly stated that a response should be lodged by 1 November 2019, and she accepted that the respondents did nothing by that date.

[40]Mrs Dhesi further added that they did not get any letter of 6 November 2019 saying that there would be a Final Hearing on 10 January 2020, at 2pm, for 1 hour, but she did accept that they had received the subsequent Notice of Final Hearing issued on 19 December 2019.

[41]At this stage, Mr Steele started to speak, as their representative, and to make some observations. He stated that the respondents were “negligent”, and that is why they were not here at the Tribunal for the 10am start. He further stated that the respondents further sought to defend this case. When I stated that only one person could act as the respondents’ representative, he stated that he would be acting as their representative at this Preliminary Hearing, ang going forward, until they secured legal representation, and Mrs Dhesi agreed that was the case.

[42]Looking at the draft ET3 response form which he had tendered, on arrival at the Tribunal earlier that afternoon, I asked Mr Steele why there was no answer at section 3.1, about whether or not the respondents agreed with the details given by the claimant in the ET1 claim form about early conciliation with ACAS.

[43]In reply, Mr Steele stated that he had been filling in the ET3 response form in the car while Mrs Dhesi was driving here to Glasgow, and he was not aware of all of the detail to give a lucid response. That said, he accepted that the respondents were aware that ACAS were involved, and that both he and Mrs Dhesi were aware of ACAS early conciliation.

[44]Asked about his response to section 6.1, where it was ticked that the respondents intended to defend the claim, and the brief narrative set out in handwriting, he stated that the respondents dispute liability, for all the matters complained of by the claimant. As per his handwritten defence, “the claim is not based on fact. The claimant’s behaviour was damaging to the company and detrimental to the wellbeing of staff.”

[45]When asked about section 7 of the ET3 response (employer’s contract claim), where it was ticked that the respondents wished to make an employer’s contract claim in response to the claimant’s claim, Mr Steele stated that had been ticked in error, and he apologised, and clarified that the respondents did not want to countersue the claimant.

[46]Where, at section 8, his details were inserted as the respondents’ representative, Mr Steele stated that while the respondents operate from the 2A Hillview Drive, Clarkston address, the respondents are content that in this Tribunal claim, their address for service remains as per the ET1, namely 1 Moorfield Lane, Gourock.

[47]Asked about the copy wage slips produced by the claimant, and letters to the claimant from the respondents, Mr Steele stated that the wage slips should say “Limited” at the end of the employer’s name, and he confirmed that the respondents are a limited company.

[48]Similarly, as regards the letter heading, he explained that the respondents’ manager and co-ordinator, who had both written to the claimant, were working from a template, and he accepted that template was not correct, insofar as it did not show the name of the company, or that it was a limited liability company at all. He further accepted that the company appeared not to be complying with the requirements of the Companies Act in that regard.

[49]When I asked him about the amount of compensation being sued for by the claimant, as per document 10, in the claimant’s Bundle, in the amount of £18,403, Mr Healey provided him with a copy of the Bundle to peruse and, in reply, Mr Steele stated that he had not seen this Schedule of Loss before (which was consistent with Mr Healey’s statement that it had not been sent to the respondents, despite the Tribunal’s earlier case management order).

[50]Further, Mr Steele also stated that if the respondents could not defend the claim on the basis of disputing liability, then they would certainly want to defend it on the matter of any remedy to be awarded to the claimant by way of compensation payable by the respondents.

Relevant Law

[51]As the respondents were not legally represented, and both Mr Steele and Mrs Dhesi advised me that they had no knowledge of Employment Tribunal practice or procedure, or the relevant law, I advised them that, consistent with my Rule 2 duty to deal with the case fairly and justly, I could inform them, in general paraphrased terms, of the applicable legal test for a Rule 20 application, and then invite Mr Steele’s comments, by way of addressing the factors identified in the judgment of Mrs Justice Simler DBE, then President of the Employment Appeal Tribunal, in Grant v Asda [2017]

UKEAT/0231/16/BA

, and reported at [2017] ICR D17.

[52]At that stage, reading from my printed copy of the EAT’s judgment in Grant v Asda, I referred to paragraph 16 (repeating the terms of Rule 20, which had been set forth in the Tribunal’s email to the respondents in reply to Mrs Dhesi’s email at 12 noon), then I paraphrased Mrs Justice Simler’s paragraph 17, referring to earlier case law in Kwik Save Stores Limited v Swain

[1997] ICR 49

and, at paragraph 18, the judgment of Mr Justice Mummery in Pendragon PLC t/a (CD Brammall Bradford) v Copus

[2005] ICR 1671

[53]I then read from the remainder of that paragraph 18, stating that the EAT had ruled that the earlier judgments still applied with equal force to the current Employment Tribunal Rules 2013, and detailed, by reading the third sentence of that paragraph 18, the relevant factors which an Employment Tribunal should take into account in deciding whether or not to allow an extension of time to lodge a late ET3 response.

[54]For ease of reference, I reproduce here the full text of paragraphs 17 and 18 from Grant v Asda: “17. Again, unlike its predecessor, Rule 20 permits an application for an extension of time after the time limit has expired. Rule 20 is otherwise silent as to how the discretion to extend time for presenting an ET3 is to be exercised. Guidance on the approach to be adopted by tribunals in exercising their discretion was given in Kwik Save Stores Ltd v Swain

[1997] ICR 49

EAT, a case concerning a respondent’s application for an extension of time under the Employment Tribunal Rules 1993. Mummery J gave guidance at pages 54 to 55: “The discretionary factors The explanation for the delay which has necessitated the application for an extension is always an important factor in the exercise of the discretion. An applicant for an extension of time should explain why he has not complied with the time limits. The tribunal is entitled to take into account the nature of the explanation and to form a view about it. The tribunal may form the view that it is a case of procedural abuse, questionable tactics, even, in some cases, intentional default. In other cases it may form the view that the delay is the result of a genuine misunderstanding or an accidental or understandable oversight. In each case it is for the tribunal to decide what weight to give to this factor in the exercise of the discretion. In general, the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full, as well as honest. In some cases, the explanation, or lack of it, may be a decisive factor in the exercise of the discretion, but it is important to note that it is not the only factor to be considered. The process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice. An important part of exercising this discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer is the extension is granted? If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party, then that is a factor in favour in granting the extension of time, but it is not always decisive. There may be countervailing factors. It is this process of judgment that often renders the exercise of a discretion more difficult than the process of finding facts in dispute and applying them to a rule of law not tempered by discretion. It is well established that another factor to be taken into account in deciding whether to grant an extension of time is what may be called the merits factor identified by Sir Thomas Bingham MR in Costellow v Somerset County Council

[1993] 1 WLR 256

, 263: “a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.” Thus, if a defence is shown to have some merit in it, justice will often favour the granting of an extension of time, since otherwise there will never be a full hearing of the claim on the merits. If no extension of time is granted for entering a notice of appearance, the industrial tribunal will only hear one side of the case. It will decide it without hearing the other side. The result may be that an applicant wins a case and obtains remedies to which he would not be entitled if the other side had been heard. The respondent may be held liable for a wrong which he has not committed. This does not mean that a party has a right to an extension of time on the basis that, if he is not granted one, he will be unjustly denied a hearing. The applicant for an extension has only a reasonable expectation that the discretion relating to extensions of time will be exercised in a fair, reasonable and principled manner. That will involve some consideration of the merits of his case.” (Original emphasis) 18. The approach set out by Mummery J was subsequently adopted in relation to the 2004 Rules in Pendragon plc (t/a CD Bramall Bradford) v Copus

[2005] ICR 1671

EAT. In our judgment, it applies with equal force to the 2013 Rules. So, in exercising this discretion, tribunals must take account of all relevant factors, including the explanation or lack of explanation for the delay in presenting a response to the claim, the merits of the respondent’s defence, the balance of prejudice each party would suffer should an extension be granted or refused, and must then reach a conclusion that is objectively justified on the grounds of reason and justice and, we add, that is consistent with the overriding objective set out in Rule 2 of the ET Rules.”

[55]While Rule 20 (3) provides that an Employment Judge may determine a Rule 20 application without a Hearing, I explained to both parties that, as both were in attendance and represented, and consistent with the Tribunal’s overriding objective, under Rule 2, to deal with cases fairly and justly, including avoiding delay, and saving expense, it would be appropriate to proceed forthwith to consider the respondents’ Rule 20 application to the Tribunal at this Preliminary Hearing. Submissions for the Respondents

[56]In opening his oral submissions to me, Mr Steele stated that there was no acceptable defence in terms of the respondents not doing the preparatory work for this hearing, and he further stated that “we were negligent”. He added that, if the respondents had prepared properly, they would have defended their actions robustly, and had they prepared properly, they would have presented a completely different picture of the claimant, and subsequent events.

[57]Accepting that the ET3 response form was a bare denial, Mr Steele added that he had read the claimant’s ET1 claim form that morning, and the 30 paragraphs in its paper apart, and in completing the ET3 response, he was trying to write in the car, while in motion, and that was a relevant factor for the Tribunal to take into account as regards the brevity of the ET3 response tendered, partly typed, and partly handwritten. Had he had more time, he added that he was sure he would have written a more detailed response on behalf of the respondents.

[58]Further, Mr Steele stated that he could not defend why the respondents had not done that after receipt of the Notice of Claim sent on 4 October 2019. On the matter of prejudice, he stated that it was unfair for the respondents not to give as much information as possible to give a more balanced picture for the Tribunal to be able to make a decision on the claimant’s case, and he accepted that the claimant is prejudiced by the delay to date.

[59]As regards prejudice to the respondents, Mr Steele stated that the respondents had not done their preparatory work, and they had not adhered to the timetable set out by the Tribunal, for an ET3 response by 1 November 2019. With time passing on, he accepted that he could see why the claimant would see prejudice to her if the ET3 response was allowed in late, but he submitted that the respondents have a “true and just argument” to present to defend the claim brought against them.

[60]He further stated that it would be just and fair to let the respondents in, albeit they were lodging their ET3 response late. In closing, Mr Steele stated that the respondents had been remiss in adhering to the timetable presented to them on three occasions by the Tribunal, but emphasised that the letters from the Tribunal had been genuinely misplaced, and the dates had not been put in the company diary. Finally, he stated, he had only become involved at around 11.15am that morning, after Mr Healey had phoned, and had spoken with Mrs Dhesi. Reply for the Claimant

[61]Having heard from Mr Steele, for the respondents, I then invited Mr Healey, the claimant’s solicitor, to address me, and explain his position in relation to the respondents’ application for an extension of time under Rule 20.

[62]He opened by stating that the application was opposed, and stated that the respondents had clearly received paperwork from the Tribunal, and done nothing with it at the time, and then there had been a refurbishment, and then they had just forgotten about matters. He further stated that the ET3 response should have been submitted after the 4 October 2019 Notice of Claim was clearly served on them, and their failure to do so, by 1 November 2019, or to date, showed a “significant disregard to the seriousness of the proceedings”.

[63]Further, added Mr Healey, the balance of prejudice leans towards the respondents, if decree and judgment is granted against them for the significant sum of compensation sought in the claimant’s schedule of loss. In the event that the Tribunal were to decide to allow in the late ET3 response, Mr Healey stated that the claimant would be seeking expenses for this full day’s Hearing, which would have been entirely avoided, if the ET3 had been presented earlier, and that he felt that an award of expenses to the claimant for the legal expenses incurred would help restore some balance of prejudice to her.

[64]Developing his submission, Mr Healey then stated that there was a need for further specification of the defence, because what is stated in the ET3 lodged lacks information, and so fair notice, and the claimant, while seeking to have the Rule 20 application refused by the Tribunal, would be seeking an order for further and better particulars, should the Tribunal decide, in exercising its discretion, to accept the late ET3 response. If the Tribunal decided that the respondents should only be allowed to participate in a Remedy Hearing, then he suggested that the respondents should seek advice from their solicitor, Mr Harvey, at Blair & Bryden.

[65]At this point, Mr Steele, the respondents’ representative, stated that the respondents seek to defend both liability and remedy, and as regards legal expenses incurred by the claimant for what would be a wasted Final Hearing date, he stated that the respondents accepted responsibility for such wasted costs.

[66]When I asked Mr Healey if he could summarily assess those expenses, he stated initially that might be around £350, plus VAT, but later stated that it was £450 plus VAT, to which Mr Steele stated that the respondents accepted that amount as the legal expenses due to the claimant’s solicitor, and he gave an undertaking on the respondents’ behalf to pay that sum to Livingstone Brown, if the Tribunal allowed in the late ET3 response for the respondents.

[67]Thereafter, Mr Healey stated that he accepted that if the late ET3 response was allowed by the Tribunal, then he accepted the need to list the case again for a Case Management Preliminary Hearing, and for both parties to complete and return to the Tribunal, with copies to each other, completed Preliminary Hearing agendas for that purpose.

[68]Mr Steele stated that the respondents would undertake to pay the claimant’s legal expenses, by BACS transfer, within 7 days of the date of this Preliminary Hearing. I noted that undertaking given to the Tribunal.

[69]As regards further procedure, Mr Healey stated that he would be leaving Livingstone Brown, week commencing 24 February 2020, and, as such, he gave an undertaking to complete and return the claimant’s PH agenda, within 7 days of this Preliminary Hearing.

[70]After discussion about availability of parties, and representatives, it was mutually agreed to fix Thursday, 26 March 2020, at 10am, for up to 2 hours, for a personal attendance Case Management Preliminary Hearing in front of me, for the purposes of judicial continuity if possible, which failing, another Employment Judge sitting alone and in private.

[71]Further, Mr Healey suggested that I should make an order for the respondents to lodge further and better particulars within 14 days documenting the legal and factual basis of their resistance to the claim.

[72]Given the bare denial in the ET3 response, which was accepted by me, granting an extension of time to the respondents, by oral judgment given at this Hearing, I stated that I regarded further and better particulars as being entirely appropriate, and it was important to emphasise to both parties that all their cards should be placed face up, with full disclosure of their legal and factual arguments, in the ET1 and ET3, as read with any further and better particulars to follow, and all questions asked in the preliminary hearing agenda to be answered, in full, with no replies of “to be confirmed” or “to be advised” except for very good cause to be shown.

[73]Finally, it was agreed that, at that Case Management Preliminary Hearing, it would be appropriate to seek to list the case for Final Hearing in the proposed listing period of June, July or August 2020, with which both parties’ representatives agreed. I stated that, along with this judgment, I would dictate, and have issued to them, under separate cover, a separate written Note and Orders of the Tribunal. This I have now done.

[74]In closing this Preliminary Hearing, at around 3.35pm, I emphasised, particularly to Mr Steele for the respondents, the consequences of failure to comply with any further Orders of the Tribunal. Mr Steele noted my warning, and confirmed that he and Mrs Dhesi would seek to make early contact with Mr Harvey, the respondents’ solicitor at Blair & Bryden.

Relevant Law

[1]The claimant presented a claim to the Employment Tribunal on the 26 September 2019 in which she complained that she had been automatically unfairly dismissed because of having made a protected disclosure to Ms Currie on the 18 February 2018 (section 103A Employment Rights Act) and/or because of having made a request for flexible working (section 104C Employment Rights Act). The claimant also complained of discrimination because of disability (in terms of sections 15 and 20 of the Equality Act) and that there had not been a payment of notice.

[2]The respondent entered a response denying the claims. The respondent accepted the claimant had been dismissed but asserted the reason for dismissal had been due to a breakdown in the relationship between the claimant and Ms Currie, the manager, and the office staff.

[3]We heard evidence from the claimant; Ms Tracy Duke, Co-Ordinator and Ms Kelly Dhesi, Managing Director. The tribunal did not hear from Ms Currie, who had left the employment of the respondent last year.

[4]The use of witness statements had been ordered in this case, and the witness statement of Ms Currie was included in the bundle of documents produced for this hearing. We agreed the witness statement would be accepted by the tribunal, but the weight to be attached to it would be reduced because it could not be tested in cross examination.

[5]The tribunal was also referred to two bundles of documents: one produced by the claimant and one by the respondent. Ms Neil objected to the respondent’s documents on grounds of relevance and that they could have been produced earlier. The tribunal decided the documents could be admitted under reservation.

[6]Ms Neil’s request to ask supplementary questions of the claimant was granted on the basis she wished the claimant to address a matter included in Ms Currie’s statement, which had not been addressed in the claimant’s statement.

[7]Mr Harvey’s request to ask supplementary questions of Ms Duke was also granted.

[8]Ms Neil confirmed, at the commencement of the case, that the disability discrimination claim had previously been withdrawn. The claim of automatic unfair dismissal because of having made a flexible working request was withdrawn during the course of the hearing. Accordingly, the issues to be determined by the tribunal were:• did the claimant make a protected disclosure to Ms Currie on the 18 February 2019;

• if so, was the making of the protected disclosure the reason for dismissal and

• is the claimant entitled to be paid one weeks’ notice.

Findings of fact

[9]The respondent owns and operates two home care agencies. Ms Dhesi is the Managing Director of the respondent. Ms Joy Currie was the Manager of the respondent at the time of the claimant’s employment and Ms Tracy Duke was employed as a Co-Ordinator from April 2019.

[10]The claimant was employed as a Carer at The Beeches Home Care Agency Ltd from (or about) the 24 September 2018 until her dismissal on the 31 May 2019. The claimant earned a net weekly pay of £224.

[11]The claimant’s role involved her visiting service users in their home and providing in-house care to them.

[12]The claimant reported to Ms Joy Currie, Manager, and also had communications with the Co-Ordinators, Ms Tracy Duke and Ms Karen McGoldrick.

[13]The claimant was a disabled person because she had breast cancer and subsequent surgery for a mastectomy. This was prior to her employment with the respondent.

[14]The claimant was employed on a zero hours contract, however there was an understanding between the parties that the claimant would be allocated full time hours. The issue of working hours was raised during Ms Currie’s first supervision meeting with the claimant on the 19 March 2019. The claimant requested to work five days one week and four days the next to accommodate fortnightly physiotherapy appointments. This was agreed by Ms Currie.

[15]The claimant subsequently made a request to reduce her hours because she no longer wanted to work beyond 5pm. Ms Currie advised the claimant the business could not accommodate this request because of the volume of work and the fact service users required to be supported at that time.

[16]Ms Currie found the claimant difficult to deal with because of the claimant’s attitude in the way she spoke to people, and because she came across as aggressive when speaking and being spoken to. Ms Currie did not raise these matters with the claimant, but did complain to Ms Dhesi about the claimant on a number of occasions, for example, after the claimant had been disruptive in a staff meeting in May 2019.

[17]Two incidents occurred which resulted in the claimant being invited to attend an investigatory meeting with Ms Duke. The claimant was, by letter of the 17 May 2019 (page 56) invited to attend an investigation meeting on the 24 May into an allegation that the claimant had confronted day service staff when they were collecting a service user. Ms Currie received a complaint from the social work department to inform her that they had received a complaint from a service user’s day centre. The staff at the day centre alleged the service user had been unkempt and covered in dry faeces on picking him up to transport him to the day centre. The claimant had been responsible for washing and dressing the service user. The claimant had subsequently had “a discussion” with the day centre staff about this.

[18]The claimant was, by letter of the 21 May 2019 (page 58) invited to attend a further investigation on the 30 May into “two staff attending the same service user with overlapping times, but both members of staff had written reports that they made the service user dinner but did not see each other at the service user’s home.” The claimant was one of the members of staff who had attended the service user on the evening in question. The log book completed by the two staff members was produced in the respondent’s documents at page 7. The claimant’s entry in the log book noted the time in as 18.35 and time out as 19.30; the other entry noted the time in as 7pm and out at 8pm.

[19]The claimant, in addition to the above allegations, was involved in an incident when the service user she attended was taken very unwell and an ambulance had to be called. The claimant telephoned Ms Currie to advise her of the situation and confirm that she was going to tidy-up and complete the log book, but that she would still attend the next service user. Ms Currie noted the next service user required two members of staff for the visit and there was only one other member of the team working that day. Ms Currie told the claimant there was only 15 minutes before the claimant was due to attend the next service user, that she would send someone else to do the tidying up, and that the claimant should attend the next service user.

[20]The claimant refused to leave until the log book had been completed. Ms Currie accepted this had to be done, but was keen to impress upon the claimant that she had to get to the next service user. The discussion became heated and the claimant put the phone down on Ms Currie.

[21]Ms Currie sent Ms McGoldrick to take over from the claimant to allow the claimant to go to the next service user’s house. The claimant refused to leave. Ms McGoldrick went to the next service user’s house to see if she could help out even though she was not trained.

[22]The claimant advised Ms Currie that she was not prepared to attend the investigatory meeting on the 24 May without a witness present, and that she could not arrange for a witness at short notice. Ms Currie agreed to reschedule the investigation meeting.

[23]The investigation meeting was rescheduled, but the claimant would not attend without the presence of a note-taker. Ms Currie agreed to reschedule the investigation meeting to the 29 May when a note-taker would be present.

[24]The claimant did not attend the investigation meetings. The claimant had wanted to contact the trade union again for advice, but felt she had not had time to do so. The claimant went off sick to “buy [herself] some time”.

[25]The claimant, prior to going off sick, refused to do a shift which finished after 5pm. The claimant considered she had previously “told” the respondent that she would only be working beyond 5pm for a further week. Ms Currie, who had previously sought advice about the claimant’s request, informed the claimant that she was required to make the request in writing. The claimant was not pleased at being told this.

[26]The claimant contacted Ms Currie to ask for copies of all documents relating to her working hours and the supervision notes. The claimant also attended at the respondent’s Clarkston office on the 30 May, rather upset, and demanding copies of the paperwork. Ms Duke informed the claimant she was not sure where the supervision notes were kept, and she advised the claimant to contact Head Office. The claimant was not happy with this and Ms Duke felt the claimant became aggressive towards her.

[27]The claimant told Ms Duke that a former member of staff had been stealing money from a service user, and that she had told Ms Currie about this in February but nothing had been done. Ms Duke, who knew Ms Currie and shared a room with her, doubted nothing would have been done if the claimant had indeed told Ms Currie this information.

[28]The following day the claimant made two phone calls to Ms Duke which Ms Duke described as having been aggressive and demanding. The claimant told Ms Duke that she was to tell Ms Currie that she was a liar, and that if Ms Duke did not tell her, she [the claimant] would. The claimant had previously asked Ms Duke if she would be paid to attend the investigation meetings. Ms Duke told the claimant she would have to find out. The claimant raised this again on the 31 May when she told Ms Duke she’d better find out and if not, she should text the claimant to explain why she had not found out.

[29]Ms Duke did not like the tenor of the phone calls, and contacted Ms Currie to inform her about this and to give her opinion that the claimant was “becoming unmanageable”.

[30]Ms Currie made the decision to terminate the claimant’s employment having discussed it with Ms Dhesi. Ms Currie reached this decision because she believed the claimant’s conduct was completely unacceptable.

[31]The claimant was informed of her dismissal by letter of the 31 May 2019 (page 60). The letter stated “Over a period of 10 weeks, there has been an extreme breakdown in terms of your relationship with the office staff and myself. This has left me with no alternative, but to discuss this situation with the owners of the company. There have been examples of:• Making aggressive and threatening phone calls to office staff;

• Shouting down the phone at office staff;

• Bullying and intimidating staff members;

• Bringing the company into disrepute by your comments to service users families;

• Hanging up the phone with your manager when asked to follow a reasonable request and

• Refusal to follow a reasonable request by a senior member of staff. These standards are completely intolerable in the workplace. The Beeches Home Care Agency believes in mutual respect and reasonable behaviour in all our dealings, whether it is clients, colleagues, office staff or management. Therefore, regrettably, I must inform you that your association with the Beeches Home Care agency has been terminated, with immediate effect….”

[32]The claimant responded to this letter on the 16 June (page 61) seeking a copy of the supervision notes and uncollected payslips.

[33]Ms Currie had not been in the office on the 30 May. She learned of the allegation made by the claimant upon her return to the office on the 31 May. Ms Currie contacted the service user’s social worker to inform them of the allegation. The social worker asked Ms Currie to attend at the service users house, with a witness, to ask if there had been a theft. Ms Currie duly did so. The service user, who had been assessed as having capacity to understand and respond, denied that a staff member had taken or stolen money, or that he had offered him any money.

[34]Ms Currie also contacted the Police but was advised that the matter would not be investigated because there was no evidence to support the claimant’s allegation.

[35]Ms Currie completed an AP1 form and a notification to the Care Inspectorate (respondent’s documents page 18). Ms Currie referred to the claimant as being “a disgruntled staff member who was under investigation for a number of things” and that the claimant had been “aggressive and demanding”.

[36]Ms Currie set out details of the allegation made and the action she had taken, which included interviewing the service user in the presence of his social worker. The report noted the service user had been offering money to staff during their visits, and that protocols and risk assessments had been put in place to deal with his, and that staff had been made aware they should refuse any money offered to them, record it in the log book and inform the office, who would in turn inform the service user’s social worker. The service user confirmed to Ms Currie that no member of staff had taken money. She was advised no further action was required.

[37]The claimant obtained cleaning work at Airbnb accommodation in June 2019, on an “as and when required” basis. The claimant did this work during June and July 2019, but then gave it up because she found it too physical. She earned £709.76 for this work.

[38]The claimant was signed off by her GP as being unfit for work from the 15 July 2019 until February 2020 due to “work related stress”.

[39]The claimant has been in receipt of Universal Credit from 1 August 2019 until 22 January 2020 at the rate of £73.34 per week. She has received the sum of £92.59 per week since the 22 January 2021 following a work capability assessment decision in January 2020 (page 83) which confirmed she had limited capability for work. Credibility and notes on the evidence

[40]The claimant’s position was that she had received a telephone call from a colleague, on the 16 February 2019. The colleague, whom she described as having been very drunk, told the claimant that he had stolen money from a service user in his care. The claimant and the colleague subsequently attended a party where they consumed a large amount of alcohol. The claimant stayed the night at the colleague’s house because she had lost her handbag. The following morning the claimant waited for her colleague to sober up and asked him about what he had told her the day before. The colleague confirmed he had stolen money from a service user.

[41]The claimant felt under a “legal and moral obligation” to disclose her colleague’s conduct and so on Monday 18 February 2019 she phoned Ms Currie and told her about the theft. Ms Currie responded the matter would need to be dealt with immediately. Ms Currie subsequently phoned the claimant to confirm she was meeting with the colleague later, and that he would be sacked. Ms Currie warned the claimant that the colleague was likely to know that it was her who had reported his conduct. Ms Currie phoned again to advise the claimant the colleague would be given an opportunity to resign at the meeting. The claimant did not agree with this.

[42]The claimant was contacted some time later by her colleague who told her he had been called into the office and told there had been an allegation of theft against him. He had been told the best thing he could do was resign, and that was what he had done. He told the claimant that the respondent had failed to carry out a PVG check on him at the start of his employment. The claimant was of the opinion this explained why the respondent had given her colleague an opportunity to resign.

[43]The claimant attended a staff meeting in May 2019, where a discussion took place regarding service users being abused. The claimant commented that “if someone is stealing from clients that’s financial abuse. How do you go about reporting that? Do you have to report it to social services?” The claimant felt she did not get a satisfactory answer, and was of the opinion Ms Currie had been vague because she felt threatened by the claimant’s comments due to the matter she had raised not having been dealt with adequately.

[44]The claimant asserted she had been dismissed because of having made a protected disclosure to Ms Currie on the 18 February. The claimant believed Ms Currie knew the claimant would not let the matter, which she considered had not been dealt with properly, rest, as was evidenced by it being raised at the meeting in May, and when she raised it with Ms Duke on the 30 May.

[45]The claimant rejected all suggestion that she had been aggressive and threatening in her phone calls or behaviour to office staff or staff members. The claimant’s version of events in respect of the other alleged incidents was that she had acted calmly. In relation to(i) interaction with the day centre staff, the claimant believed she had been calm and respectful;

(ii) the incident which occurred following the service user being taken to hospital, the claimant accepted she had put the phone down on Ms Currie, but insisted that she had not been shouting, or aggressive during the call and

(iii) two service users allegedly attending the same service user, the claimant insisted that she had correctly attended the service user.

[46]The Tribunal require to determine whether a protected disclosure was made to Ms Currie on the 18 February, in circumstances where the claimant asserted contact and a disclosure was made to Ms Currie that day, and Ms Currie denied contact and a disclosure had been made. In order to make this determination we had to assess and balance the evidence available to us, which included:-• the credibility and reliability of the claimant’s evidence;

• the evidence of Ms Duke

• the evidence of Ms Dhesi

• the witness statement of Ms Currie and

• the phone records produced by the claimant.

[47]Ms Duke’s position was that the claimant told her on the 30 May that her colleague had been stealing from a service user and that she had contacted Ms Currie about it in February 2019, but nothing had been done. Ms Duke commented “which would not have been the case”. Ms Duke, when asked to explain what she meant by that comment, explained that Ms Currie was “very professional and [she] could not imagine for a moment that she would not act on a disclosure like that”.

[48]We found Ms Duke to be a credible and reliable witness who gave her evidence in a straightforward manner. Ms Duke had limited her witness statement to matters in which she had been directly involved, and which she considered relevant. Ms Duke provided further information when responding to questions put in cross examination, and told the tribunal that although she had directly experienced the claimant’s behaviour on the 30 and 31 May, she shared a room with Ms Currie and had heard the way the claimant shouted at her. Ms Duke described the claimant’s behaviour as threatening and aggressive.

[49]Ms Dhesi told the tribunal that Ms Currie’s experience was in managing care homes, staff and training. Ms Dhesi stated that “if the claimant had made a disclosure to Ms Currie, [I] know for a fact it would have been reported to me. She [Ms Currie] was professional: she would not and did not know and take no action”. Ms Dhesi made reference to the fact that following the allegation of theft having been made by the claimant to Ms Duke on the 30 May, Ms Currie had reported the matter to the service user’s social worker, to the Police and made a report to the Care Inspectorate.

[50]We also found Ms Dhesi to be a credible and reliable witness. She clearly relied on Ms Currie as the Manager, who had day-to-day contact with, and responsibility for, staff, service users and the running of the service. Ms Dhesi expressed unreserved confidence regarding Ms Currie’s knowledge, experience and professionalism.

[51]Ms Currie, in her witness statement, rejected the claimant’s version of events and asserted the claimant had not contacted her on the 18 February 2019: she further denied that she had twice phoned the claimant to say it was likely the colleague would be dismissed and, subsequently, that he would be given the opportunity to resign. Ms Currie noted the colleague had walked out of his employment on the 17 February 2019 because he had been asked to attend the office to discuss his sickness absence and Ms Currie’s suspicion that he had been untruthful regarding his sickness absence. Ms Currie wanted to discuss with him concerns regarding him calling the on-line mobile at 3am when apparently under the influence of alcohol and crying down the phone stating that he needed help. He had resigned and had not been dismissed.

[52]The claimant produced a document (page 62) said to be a phone record from her house phone, showing (amongst other things) three calls on Monday 18 February 2019 to the same number. The time of the calls was noted as being 11.14am, 1.25pm and 1.26pm.

[53]The tribunal were not satisfied any weight could be attached to the document, said to be a phone record, produced at page 62. We say that because there was nothing to suggest the claimant’s phone number and, more particularly, whether the claimant had made or received the calls to the numbers noted. The column in which the phone numbers were noted was entitled “Destination” which implied that they were numbers which the claimant had phoned. There was nothing on the document to suggest it also recorded numbers which had phoned the claimant. Accordingly we could not accept the document supported the claimant’s position that Ms Currie had twice phoned her on the 18 February.

[54]We acknowledged the document did support the claimant’s position that a phone call appeared to have been made to the respondent’s office at 11.14am on the 18 February 2019. The claimant stated she made the phone call to Ms Currie: this is denied by Ms Currie. The document did not assist in identifying who answered the call, and there was no evidence to inform the tribunal whether the destination number noted was a general office number, and if so whether it would be common for Ms Currie to answer such phone calls, or if it was a number for Ms Currie.

[55]The tribunal did not find the claimant to be an entirely credible or reliable witness. The claimant told the tribunal that she had received two convictions for being drunk and disorderly. In fact the claimant had one conviction for being drunk and disorderly, and one conviction for resisting arrest. The tribunal considered it rather unusual for a person to forget the nature of their criminal charges when they occurred not very long ago.

[56]The circumstances of the alleged disclosure to the claimant by her colleague were mired in the consumption of a considerable amount of alcohol. The claimant told the tribunal that her colleague had been “very drunk” when he first told her about the theft. The claimant also told the tribunal that she had subsequently been drunk at the party with her colleague. The claimant rejected any suggestion her evidence was not reliable because of the amount of alcohol involved, and suggested the day after the party she had waited until her colleague was sober before asking him about what had been said.

[57]The tribunal however did not find the claimant’s suggestion that she had waited until her colleague was sober before asking him about what had been said, to be reliable. The claimant had, the previous night, lost her handbag which contained her mobile phone and keys. She told the tribunal that she had stayed overnight with her colleague but left early to get her phone and keys sorted out. This did not sit comfortably with the suggestion that she had waited for her colleague to sober up.

[58]The claimant spoke of a “moral and legal” obligation to report what her colleague had told her, yet if her version of events was to be believed, she knew Ms Currie did not take any action regarding the matter, but she (the claimant) took no further action to report the matter to Ms Dhesi, social work or the Police. The claimant only took action, after her dismissal, to contact the Care Inspectorate. This struck the tribunal as odd in circumstances where there were protocols and risk assessments in place to deal with this very situation and which involved the service user’s social worker.

[59]The evidence of Ms Dhesi and Ms Duke was consistent regarding their experience of the claimant’s behaviour, or what they had been told by Ms Currie regarding the claimant’s behaviour.

[60]The tribunal considered the claimant’s evidence regarding her desire to finish work at 5pm to be illustrative of the claimant’s attitude. The claimant was initially told by Ms Currie that the request could not be granted because of staffing issues and the fact 5pm is a busy time in respect of service users. The next time the claimant raised the matter she “told” the respondent she would not be working after 5pm. The claimant then refused to do a shift which involved working beyond 5pm. The claimant justified her position by referring to the fact she had a zero hours contract. The claimant objected to being told she had to put her request for flexible working in writing. We formed the impression, based on this and other incidents referred to above, that the claimant did not like to be managed.

[61]We acknowledged the weight to be attached to Ms Currie’s witness statement was reduced because the evidence had not been tested in cross examination. However, the evidence of Ms Dhesi and Ms Duke was generally supportive of what Ms Currie set out in her witness statement. In particular both Ms Dhesi and Ms Duke spoke of the difficulties Ms Currie had with the claimant, and both spoke of the professionalism of Ms Currie.

[62]The professionalism of Ms Currie was a factor which weighed heavily with the tribunal: if the claimant was to be believed, it meant Ms Currie, having received an allegation of theft by a member of staff from a service user, did nothing. We found that difficult to accept.

[63]The tribunal, having balanced all of the factors set out above, concluded the claimant did not contact Ms Currie, on the 18 February 2019, to inform her that a colleague had stolen money from a service user. We reached that conclusion, on balance, because we considered that if the claimant had raised the matter with Ms Currie on the 18 February, and was unhappy it had not been dealt with adequately, the claimant would have told someone else about it yet she did not do so until after she had been notified of the investigations to take place and after her request to no longer work beyond 5pm had been refused.

[64]We also preferred the evidence of Ms Dhesi and Ms Duke to that of the claimant regarding the claimant’s behaviour. Claimant’s submissions

[65]Ms Neil referred the tribunal to section 103A Employment Rights Act and submitted the claimant had made a protected disclosure to Ms Currie on the 18 February 2019, that a colleague had stolen money from a service user, and the claimant had been dismissed for having made this disclosure.

[66]The first question for the tribunal is what facts and beliefs were relied on by the decision-maker. The respondent relies on the breakdown of the relationship: the claimant relies on the protected disclosure. The claimant must show she made a protected disclosure and that this was the reason for dismissal (Kuzel v Roche Products

2008 ICR 799

[67]Ms Currie took the decision to dismiss, and the reasons for the dismissal were set out in the letter of dismissal at page 60. Ms Neil invited the tribunal to note the 10 week period referred to in the letter coincided with the time the disclosure was made. There was no written evidence regarding the disclosure, but Ms Neil invited the tribunal to prefer the claimant’s evidence, because it was candid and had been given in a straightforward manner. The claimant admitted her two convictions and admitted her drinking. She also admitted she had hung up on Ms Currie. In contrast, Ms Currie’s witness statement carried little weight.

[68]Ms Neil submitted the two investigations had been nothing more than an effort by the respondent to intimidate the claimant. The complaints/allegations were spurious. The claimant had wanted a witness present at the investigation meeting, and Ms Duke accepted this had not been unreasonable. It was submitted that wanting a note taker present had not been unreasonable. Ms Dhesi had little contact with the claimant.

[70]The claimant denied the allegations, with the exception of hanging up on Ms Currie.

[71]The terms of Ms Currie’s report to the Care Inspectorate sought to undermine the allegation made by the claimant.

[72]The second question for the tribunal is whether the disclosure made was a protected disclosure. Ms Neil referred to section 43B Employment Rights Act and submitted there had been a disclosure of information to Ms Currie, her manager, on the 18 February regarding a breach of a legal obligation and a criminal offence. The claimant reasonably believed the information to be correct and in the public interest.

[73]Ms Neil submitted there was no reliable account of the conduct of which the claimant was accused. The tribunal was being asked to believe there had been no issues with the claimant’s behaviour until February 2019 – that is, the time of the disclosure.

[74]Ms Neil noted the claimant had, on the 30 May, made Ms Duke aware of the allegation of theft, and this had been reported to Ms Currie. Ms Neil invited the tribunal to accept Ms Currie knew, at that stage, what this meant, and that was that the claimant was not going away and would not back down. This explained why the claimant was dismissed.

[75]Ms Neil invited the tribunal to find the claimant had been dismissed for making a protected disclosure on the 18 February 2019. A schedule of loss had been prepared. Ms Neil submitted the claimant’s loss should not be broken by her work for Airbnb: the claimant had enduring loss due to her mental suffering. Respondent’s submissions

[76]Mr Harvey submitted the case turned on a very narrow point which was an issue of fact: why was the claimant dismissed? Either the reason for the dismissal was because a protected disclosure had been made (Mr Harvey accepted that if a disclosure was made on the 18 February it was a protected disclosure), or had the respondent had enough of the claimant because of the reasons set out on page 60?

[77]Mr Harvey questioned whether the tribunal could find reasonable grounds to believe the reasons set out in the letter of dismissal were the reasons for dismissal. He submitted it did not matter there had been no investigation because that was an issue which went to the fairness of the dismissal and that was not a question the tribunal had to determine in this case. Mr Harvey acknowledged it had been unfortunate Ms Currie was not present for the hearing, but her statement could be regarded as evidence and it was supported by the evidence of Ms Duke and Ms Dhesi.

[78]The claimant’s position was that she told Ms Currie on the 18 February 2019 that a colleague had stolen money from a service user. The claimant accepted the colleague had consumed excessive amounts of alcohol, and then he and the claimant had then consumed more alcohol. All of this within 24 hours of making the disclosure. It was submitted this made the evidence unreliable.

[79]Mr Harvey also invited the tribunal to note there was nothing in writing from the claimant: why did she not email Ms Dhesi or complain? The claimant did nothing until she repeated the allegation to Ms Duke on the 30 May. If the tribunal accepted the claimant’s evidence it would mean questioning Ms Currie’s position. Ms Currie has many years’ experience in care: she was competent and professional. Could the tribunal accept she just sat on a disclosure of this nature? Mr Harvey submitted that on a balance of probabilities the better conclusion was that she did not know of the allegation prior to it being reported to her on the 31 May.

[80]Mr Harvey invited the tribunal to find the reason for dismissal was as set out in the letter of dismissal, and to dismiss the claim.

[81]Mr Harvey submitted that should the tribunal find the claimant was dismissed for having made a protected disclosure no basic award should be made because the claimant had less than two years’ service. The claimant relied on the Fit Notes produced to support her position that she could not work. However, the Fit Notes were based on what she told the GP. There was no support for any causal connection between the loss claimed and what happened to her. Discussion and Decision

[82]We firstly had regard to the terms of section 103A Employment Rights Act which provides that an employee who is dismissed shall be regarded for the purposes of this Part, as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[83]Section 43B Employment Rights Act provides that a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one of more of the following (points (a) to (f) has occurred, is occurring or is likely to occur. We noted the respondent accepted that if the claimant raised the allegation with Ms Currie on the 18 February 2019, it was conceded the disclosure would be a protected disclosure. Accordingly the first issue for the tribunal to determine is whether the claimant made a disclosure to Ms Currie on the 18 February 2019.

[84]We have set out above our conclusion that the tribunal decided the claimant had not made a disclosure to Ms Currie on the 18 February 2019. We reached that conclusion because we judged the claimant’s evidence not to be sufficiently credible or reliable regarding this matter. In particular:-• the initial phone call said by the claimant to have been received from a colleague, was at a time when he was “very drunk”;

• the claimant and the colleague went to a party that night and both got drunk: the claimant’s suggestion that she waited the next morning until they were both sober to question him about what he had told her did not ring true in circumstances where she also said she had left early to try to get her phone and keys (which she had lost) sorted out;

• the claimant told the tribunal she did not agree with her colleague being given the opportunity to resign and was concerned that he could continue to work in social care. The claimant however did nothing to raise the matter either with Ms Dhesi, or with social work, the Police or the Care Inspectorate. The claimant in fact did nothing until she was dismissed;

• the claimant’s behaviour in, for example, her insistence that she complete the log book after the service user was taken to hospital; her refusal to accept her request to no longer work beyond 5pm could not be granted and her refusal to attend the investigation meetings unless a witness and note-taker were present, did not sit comfortably with her position that Ms Currie did nothing to address the disclosure, yet she [the claimant] took no action to raise it further and have the matter, which she described as having a “legal and moral obligation” to raise, addressed and

• the phone records produced by the claimant were unclear and did not support her position that she had made a call to Ms Currie, who had then phoned her back twice.

[85]The tribunal, having taken these factors into account, and together with the evidence of Ms Dhesi and Ms Duke regarding the experience and professionalism of Ms Currie, could not accept a disclosure was made to Ms Currie which she failed to act upon. The tribunal decided no disclosure was made to Ms Currie on the 18 February 2019.

[86]We decided it would be appropriate for the tribunal to continue to consider whether, if there had been a disclosure (which the respondent conceded would have been a protected disclosure) was that the reason for the dismissal of the claimant.

[87]Ms Neil, in her submission to the tribunal, invited the tribunal to accept there was a causal connection between the making of the disclosure and the claimant’s dismissal because the claimant had not had any difficulties at work prior to the February 2019 and because the matters said to be under investigation had been spurious. We considered these matters in turn.

[88]We could not accept the claimant had not had any difficulties at work prior to February 2019. We preferred the evidence of the respondent’s witnesses (Ms Duke and Ms Dhesi) to the effect that Ms Currie was voicing concerns regarding the claimant prior to February 2019. Ms Dhesi told the tribunal that Ms Currie would “mention [the claimant] often – there was nothing you could put your finger on”.

[89]Ms Duke told the tribunal that she had heard and/or witnessed the claimant’s behaviour towards others. Ms Duke shared a room with Ms Currie and overheard telephone conversations where the claimant would be shouting at Ms Currie. Ms Duke described that Ms Currie had been distressed and that her dealings with the claimant were causing her stress and issues with her mental health.

[90]Ms Duke was also able to give the tribunal direct evidence regarding her interaction with the claimant on the 30 May, and the phone calls with her on the 31 May. Ms Duke described the claimant as “not being happy” and being very aggressive and threatening. Ms Duke told Ms Currie she thought the claimant was becoming unmanageable. This opinion was based not only on the way the claimant had behaved but also her lack of co-operation with the investigations.

[91]We concluded from this evidence that whilst issues may not have been raised with the claimant, there were concerns regarding her behaviour, her attitude and the way she spoke to people. This was a case where those concerns increased in the period prior to the dismissal.

[92]We also could not accept the suggestion the two investigations commenced by the respondent were spurious. The first investigation was to address a complaint received by Ms Currie from the social work department regarding the behaviour of the claimant in respect of an interaction with day care staff. Ms Neil questioned whether any such complaint had been received by Ms Currie from social work, because nothing had been produced in writing. Ms Dhesi informed the tribunal the complaint had been received by telephone and we accepted this evidence.

[93]We acknowledged the claimant disagreed the service user had been unkempt on being picked up by the day centre staff, and we further acknowledged there appeared to have been some issues between the day centre staff and the service user’s mother. That said however, we were entirely satisfied that the respondent was reasonably entitled to investigate the matter, interview the claimant and any other relevant witnesses and determine what had happened any why. There may well have been an entirely reasonable explanation for what had occurred, but that does not equate to the investigation being spurious. It is only by investigating the matter that the respondent can reasonably determine what happened and whether any further action is required.

[94]The second matter concerned a log book which appeared to show two employees being at the home of a service user at the same time but not knowing the other was there. The claimant invited the tribunal to accept her entry in the log book was made first, was more detailed and therefore if anyone was to be investigated it should be the other employee. We again acknowledged the claimant may well have been right in what she said, but it is only by investigating the matter that the respondent can understand what happened and whether any further action is required.

[95]The respondent formed the view that the claimant was unwilling to co-operate with the investigations. The claimant initially asked for the meeting to be postponed because she wanted a witness present. The respondent agreed. The claimant then refused to attend the re-arranged meeting because a notetaker was not present. The respondent agreed to re-arrange the meeting. The claimant then took objection to the fact the investigation meetings were going to be back-to-back.

[96]We considered the respondent took a reasonable approach to re-arranging the meetings to accede to the claimant’s requests. We concluded the respondent was reasonably entitled to conclude the claimant was not willing to co-operate with the investigations. We considered the respondent’s conclusion was supported by the fact the claimant herself told the tribunal that she had wanted to contact the trade union but had no time so “I phoned in sick to buy time”.

[97]The claimant had had at least a week to contact the trade union. She told the tribunal she was a new member of the trade union and was unsure if she was entitled to have representation. The claimant did not suggest she took any action to try to have another witness attend the investigation meeting with her, or to act as a note-taker for her.

[98]We had regard to the letter of dismissal (page 60) and to the reasons set out in that letter to explain the basis of the dismissal. The letter referred to conduct over a period of 10 weeks and gave examples of behaviour which included making aggressive and threatening phone calls to office staff; shouting down the phone at office staff; bullying and intimidating staff members; bringing the company into disrepute by your comments to service users’ families; hanging up the phone with your manager when asked to follow a reasonable request and refusal to follow a reasonable request by a senior member of staff.

[99]Ms Duke provided evidence of the aggressive and threatening phone calls she had received from the claimant, and of calls she had overheard when the claimant had been shouting down the phone at Ms Currie. The claimant accepted she had hung up the phone on Ms Currie and had refused to follow a reasonable request to go to the next service user’s home. The allegations of bullying and intimidating staff members and bringing the company into disrepute were matters set out in Ms Currie’s statement.

[100]The Tribunal was satisfied the issues set out in the letter of dismissal were issues of concern for the respondent. We were further satisfied that the behaviour of the claimant on the 30 and 31 May was the catalyst for the dismissal. We say that because the behaviour demonstrated, and complained about, that day was akin to the behaviour the respondent was no longer prepared to tolerate.

[101]We also took into account the fact that if, as asserted by the claimant, Ms Currie dismissed her because she had made a protected disclosure on the 18 February 2019, why did Ms Currie wait until the end of May to dismiss the claimant. We acknowledged the claimant stated that the delay was caused by the fact she would not keep quiet about what had happened and it was only when Ms Currie learned this that she decided the claimant had to go.

[102]The difficulty with the claimant’s position is that she did keep quiet about it: the claimant did not make Ms Dhesi aware of it, nor did not make social work or the Police aware of it. The claimant suggested that she was not sure of the most appropriate body to make the disclosure to. We found this evidence lacked credibility in circumstances where the claimant had constant contact with social work and could have been guided by them or by a phone call to the Care Commission.

[103]The claimant suggested she had raised it at a staff meeting, but the evidence of the claimant and the witness statement of Ms Currie were largely in agreement to the extent that no allegation was made, and the claimant’s comment was limited to a general enquiry about what to do if someone was stealing from clients.

[104]The matter was not referred to again by the claimant until the 30 May when she told Ms Duke about it and suggested she had told Ms Currie about it in February.

[105]We concluded that the weakness in the claimant’s position was that she knew in February that she was not happy with the way in which Ms Currie had dealt with the matter and considered it had been swept under the carpet. The claimant could, at any time after that, have made someone else (either within or outwith the organisation) aware of the disclosure. She did not do so. In fact there was no mention of it by the claimant until after the claimant was invited to attend the investigation meetings and had had her request to no longer work beyond 5pm refused.

[106]We also had regard to the fact we were told by Ms Dhesi that Ms Currie had many years’ experience working in care and managing and training staff. The professionalism of Ms Currie was noted by Ms Dhesi and endorsed by Ms Duke. We could not, in the absence of having heard from Ms Currie, attach much weight to this factor, but we did attach weight to the fact Ms Dhesi clearly trusted Ms Currie and trusted her judgment and running of the respondent’s business. We were reluctant to accept, against that background, that Ms Currie had received notice of theft from a service user and taken no action. This was something that could have ended Ms Currie’s career and had a detrimental impact on the respondent’s business. We preferred Mr Harvey’s submission on this point that the better conclusion, on the balance of probabilities, was that Ms Currie did not know of the allegation until the 31 May 2019.

[107]We decided, having had regard to all of the above points, that even if the claimant did make a protected disclosure to Ms Currie on the 18 February 2019, the making of that protected disclosure was not the reason for the claimant’s dismissal. The claimant was dismissed because the respondent was no longer prepared to tolerate her behaviour.

[108]We, in conclusion, decided to dismiss the claim because the claimant did not make a protected disclosure to Ms Currie on the 18 February 2019; and, even if she had made that disclosure, it was not the reason for the claimant’s dismissal.

[109]The claimant also brought a claim in respect of the payment of one week’s notice. We noted the letter of dismissal did confirm the claimant’s employment had been terminated with immediate effect, but it did not refer to gross misconduct. We concluded the conduct complained of did not, in the circumstances, amount to gross misconduct. We accordingly decided the claimant had been entitled to receive one weeks’ notice of the termination of her employment. The respondent shall pay to the claimant the sum of £224.