Ms L Warner v Flagship Hotels (Stirling) Ltd: 4112406/2021
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4112406/2021
Between
Ms L WarnerClaimantFlagship Hotels (Stirling) LtdRespondent
Before
Employment Judge M WhitcombeDate 5 May 2022
JUDGMENT
The judgment of the Tribunal is as follows.(1) The claim for unfair dismissal fails and is dismissed.(2) The claim for breach of contract also fails and is dismissed.
REASONS
[1]These are the written reasons for a judgment sent to the parties on 6 May 2022. Oral reasons were provided to the parties at the end of the hearing. Written reasons have now been produced at the request of the claimant, dated 13 May 2022.[2]The claimant was formerly employed by the respondent from 25 February 2002 to 22 October 2021. The claimant worked at the Golden Lion Hotel in Stirling and by the end of her employment she was employed as Head Housekeeper. The nature of those duties requires no further explanation. The claims follow the claimant’s dismissal, ostensibly due to sickness absence, on 22 October 2021 with a payment in lieu of notice. The claimant had been absent on sick leave since 17 May 2021.[3]The parties were represented as set out above. Mr Adams is the claimant’s brother-in-law and is not a lawyer. Most of his correspondence includes reference to “LMS Partnership” but that is not a legal firm. For that reason I gave a good deal of extra guidance during the hearing regarding procedure, the issues and the relevant evidence. I encouraged Mr Adams to ask questions about relevant matters which he had not originally covered and sometimes asked him to move on from repetitive questions or topics of little or no relevance to the real issues. At some points I also offered to formulate questions for Mr Adams. Since he was unsure of the relevance of some of his questions or how best to frame them, I adopted a practice sometimes followed in the Family Court in England and Wales and elsewhere. Mr Adams had a pre-prepared list of questions for some witnesses and he was happy for me to ask all of the questions on that list that I considered relevant to the issues and also to reformulate them if necessary (for example, to avoid asking the claimant leading questions). At the end of that exercise Mr Adams confirmed that all relevant matters had been covered to his satisfaction. Claims and issues[4]In a claim form (ET1) received by the Tribunal on 14 November 2021 the claimant appeared to bring claims for unfair dismissal, breach of contract and unlawful deductions from wages. However, at the start of the hearing it was confirmed on her behalf that there was no claim for unlawful deductions from wages. The respondent defends both of the remaining claims.[5]The explanation of the unfair dismissal claim attached to the claim form is a fairly extensive narrative of alleged unfair treatment. On a quick reading it might be thought to be the basis for a constructive dismissal claim because it alleges poor treatment of the claimant beginning more than 18 months prior to the date of dismissal. There are headings “breach of duty of care”, “harassment/discrimination” and “exclusion/humiliation”. In fact, the claimant did not resign and was directly dismissed, ostensibly for capability in the sense of ill-health and sickness absence. The respondent relies on that as a potentially fair reason for dismissal. The claimant does not accept that the respondent honestly believed in that reason for dismissal and argues that the real reason for the dismissal was that the respondent did not want the claimant back at work as a result of hostility towards her originating from an incident the previous summer. By the end of the hearing the claimant also argued alternatively that the real reason for dismissal was redundancy.[6]The claim form did not raise any allegations of procedural unfairness in relation to dismissal for capability, but at the start of the hearing I explained that Tribunals would normally be concerned with issues such as:a. whether the respondent’s efforts to obtain medical evidence fell within the reasonable range;b. whether the efforts made to consult with the claimant fell within the reasonable rangec. whether there was any suitable alternative employment;d. whether, on the information reasonably available to the employer, it ought reasonably to have waited any longer for a return to work.[7]Despite several invitations to do so the claimant’s representative did not make any submissions regarding procedural fairness in the context of a dismissal for long-term sickness absence, and did not deal with it in cross-examination either.[8]The claim arises from a period of furlough. The respondent paid the claimant 80% of the normal contractual rate during that period. The issue is whether the claimant agreed to vary the relevant contractual term to that extent, or alternatively whether she waived any associated breach of contract. Evidence[9]I was provided with a pack of documents running to 277 pages, unfortunately secured only with a treasury tag. The respondent also handed in extracts from its handbook but they were not referred to during the hearing at all.[10]Only three witnesses gave evidence. For the respondent I heard from Margaret Rose McMahon (Company Controller) and Paul Waterson (Managing Director). The claimant was her sole witness.[11]I found all of those witnesses to be fundamentally honest, doing their best to help the Tribunal by giving evidence which was accurate to the best of their recollection. However, honesty is not the same thing as reliability and I found the respondents’ witnesses to be more reliable than the claimant because she was sometimes vague on important detail and sometimes contradicted herself on important detail. The respondent’s witnesses did not display any similar tendency.[12]The claimant also handed in a witness statement and resignation letter from June Wannan, formerly the respondent’s Interim General Manager. However, she was not ultimately called to give oral evidence as well so, as I had warned the claimant’s representative, the evidence contained in her witness statement was given little weight. In any event it related far more to her own experience than to the claimant’s employment or dismissal. According to the correspondence, June Wannan took the decision to dismiss the claimant. Unusually therefore, I did not hear any oral evidence from the person who, at least on the respondent’s case, took the decision to dismiss. I therefore had to assess her reason for dismissal on the basis of the documents written at the time, especially the dismissal letter, the surrounding circumstances and the evidence of other witnesses. Legal Principles[13]The first question is the reason for dismissal. The respondent must prove the reason for dismissal. In practice that means that the respondent must establish that it had a genuine belief in one of the potentially fair reasons for dismissal listed in s.98 ERA 1996. In this case the respondent relies on capability (in the sense of ill-health) which falls within section 98(2)(a) ERA 1996. The reason for dismissal is the set of facts known to the employer or beliefs held by it, which cause it to dismiss (Abernethy v Mott, Hay and Anderson [1974] ICR 323). This has also been expressed as the factor or factors operating on the mind of the decision-maker which cause them to make the decision to dismiss, or alternatively is what motivates them to do so (Jhuti v Royal Mail [2018] ICR 982).[14]If the respondent establishes a potentially fair reason for dismissal then the test of fairness in s.98(4) ERA 1996 applies. On this issue the burden of proof is neutral. The question whether the dismissal was fair or unfair having regard to the reason shown by the employer depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The statute requires that question to be determined “in accordance with equity and the substantial merits of the case”.[15]It is well-established that a Tribunal must not substitute its own view for that of the reasonable employer (see e.g. Iceland Frozen Foods Ltd v Jones [1983] ICR 17). The law recognises that different reasonable employers might have different reasonable responses to the same situation. The fairness of dismissal is therefore assessed by reference to a “range of reasonable responses”. Put another way, if some reasonable employers would have dismissed in the same situation then the dismissal is fair. Only if no reasonable employer would have dismissed is the dismissal unfair. These principles apply as much to the procedure adopted in relation to the dismissal as they do to the overall decision whether or not to dismiss (see e.g. Sainsbury’s Supermarkets Ltd v Hitt [2003] ICR 111).[16]Cases such as DB Schenker Rail v Doolan (UKEATS/0053/09/BI), Spencer v Paragon Wallpapers Ltd [1977] ICR 301 and BS v Dundee City Council [2014] IRLR 131 establish that in long-term sickness absence cases a Tribunal will often be concerned with the following procedural issues (by reference to a reasonable range of procedures):a. whether the employer has established the current medical position;b. could a reasonable employer conclude, from the material before it, that the employee was not capable of returning to her post;c. the requirements of the business, the employee’s past sickness record and whether the employee could be offered an alternative position more suitable to her state of health;d. whether the employer consulted sufficiently with the employee;e. would a reasonable employer have waited longer to dismiss and if so for how long?[17]The statutory written statement of terms and conditions of employment is important evidence of what those terms were as at the date of its production. However, they might be varied subsequently. The general principle is that no change to contractual terms can be made without the consent of the employee. There is no requirement for “consideration” for a variation in Scotland. Consent may be express oral or written consent. Consent may also be implied from conduct in certain circumstances, for example if the employee continues to work for the employer or to accept wages without protest for a significant period of time while being aware of the change imposed by the employer. Where the change has immediate effects then continuing to work without protest may very well indicate consent (Abrahall v Nottingham City Council [2018] EWCA Civ 796). The conduct of the employee in continuing to work for the employer must give rise to an unequivocal inference of consent and must not be capable of a different explanation.
Findings of fact
[18]I made the following findings of fact. Where facts were in dispute I made my findings on the “balance of probabilities”, in other words a “more likely than not” basis. Civil procedure operates a binary system of proof in which facts which are considered more likely than not to be true are deemed to be true for the purposes of the case. Conversely, facts which are considered more likely than not to be untrue are deemed to be untrue. Nothing has to be proved beyond reasonable doubt.[19]The respondent currently operates only one hotel, the Golden Lion Hotel in Stirling where the claimant worked. It has about 66 employees. Covid disruption[20]On 22 March 2020 Managing Director Paul Waterson sent a message to all staff informing them that furlough arrangements would come into place the following day. There would be no redundancies or unpaid leave even though the hotel was more or less closed. The message noted that the company would receive a grant to pay all workers 80% of their wage up to £2,500 for the next three months. The message was silent as to whether that was all that the respondent proposed to pay its employees or whether there would be any “top up” in relation to the missing 20% of normal wages. The claimant replied saying simply, “I agree”.[21]The respondent did not ask staff to confirm their acceptance of a reduction in pay by signing a written furlough agreement or equivalent document.[22]The claimant raised the issue of “top up” in an email dated 21 April 2020. She asked whether the respondent would be adopting that approach to the staff of the Golden Lion. Harold Balgowan replied, “To answer your question. It was clarified in the email I sent to everyone on Sunday that it’s 80%. We are not topping up the difference unfortunately.” The claimant replied later that day saying “okay Harold, didn’t think so, thank you for the clarification. !!”.[23]The claimant subsequently raised an issue in relation to holiday pay and its relationship with furlough on behalf of various other members of staff. Disciplinary proceedings[24]On 26 June 2020 an incident occurred between the claimant and Paul Waterson. According to the respondent, the claimant accused him in an email of misleading her and her colleagues regarding the payment of holidays during furlough. When Mr Waterson telephoned the claimant to discuss the matter the claimant terminated the call and then refused subsequent calls. According to the claimant, Mr Waterson had called at an inappropriate time and spoke to her in an inappropriate way. It is not necessary for me to decide who was correct in order to decide the claims brought by the claimant for unfair dismissal and breach of contract.[25]On 15 July 2020 Ms McMahon emailed the claimant setting out the respondent’s view of events and inviting the claimant to attend an investigation meeting on 27 July 2020. The claimant replied by email the same day saying “I will not be attending meeting” and set out in vivid terms the outrage she felt that she was under investigation at all.[26]The claimant was invited to attend an investigation meeting on 27 July 2020. However, she replied on 15 July 2020 stating that she would not attend. From 24 July 2020 onwards Mr Adams corresponded on the claimant’s behalf. The claimant confirmed in evidence that she approved and authorised the content of all of the emails that Mr Adams sent on her behalf.[27]On 14 August 2020 Ms McMahon wrote to Mr Adams to invite the claimant to a disciplinary hearing on 18 August 2020. The allegations were that the claimant had been rude to Harold Balgowan on 15 and 16 July 2020, that the claimant had made several derogatory remarks about Mr Waterson to Harold Balgowan on both occasions and that the claimant had made several derogatory remarks about Chevonne Hutton on the same occasions.[28]On 17 August 2020 Mr Adams asserted that it was inappropriate to proceed with a disciplinary hearing while the claimant was on furlough.[29]On 25 August 2020 Ms McMahon replied stating that she had taken advice and was satisfied that she could still proceed with a disciplinary hearing concerning a furloughed employee. The hearing was rescheduled for Monday, 31 August 2020. Mr Adams objected to the continuation of the disciplinary process on the basis of the claimant’s health and well-being. Ms McMahon replied saying “I have ultimately formed the view that it would be reasonable to postpone the hearing the disciplinary hearing until a later date.” No alternative date was fixed.[30]The disciplinary proceedings were ultimately concluded without any adverse finding against the claimant. This is dealt with below. Re-opening[31]On 26 April 2021 Ms McMahon emailed the claimant to inform her that the hotel would reopen for business on 29 April 2021. With a view to returning to work on 3 May 2021 the claimant was invited to Covid-19 training on 28 April 2021. Furlough arrangements in relation to the claimant would therefore come to an end on 29 April 2021. The claimant did not engage with that training.[32]In reply, Mr Adams emailed on the claimant’s behalf on 27 April 2021. Although the email is marked “without prejudice” both sides agreed that there were certain sections that I could and should take into account. Mr Adams took many points in that email and asked seven questions about the basis of the return to work stating “until these matters are satisfactory [sic] resolved, Linda is not in a position to return to work.” Ms McMahon understood that the claimant would not immediately be returning to work as planned.[33]In a reply dated 29 April 2021 Ms McMahon confirmed that outstanding disciplinary procedures against the claimant would be “closed off, with no adverse finding against Linda. I trust that this will be agreeable.” Answers were also provided to the other six questions posed by Mr Adams in his previous correspondence.[34]The claimant subsequently provided a fit note dated 17 May 2021 certifying that she was not fit for work on account of knee joint pain. As it turned out, the claimant never returned to work from the sickness absence which commenced on this date. Subsequent fit notes described the reason for absence as knee joint pain and anxiety.[35]By about September 2021 the claimant had been absent for nearly 4 months and her absence was having a hugely detrimental effect on the housekeeping department of the hotel. The claimant was not there to lead them and no substantive head of department was in place. While the claimant was off sick the respondent did not think it was appropriate to recruit a replacement because the claimant was still employed and the respondent fully expected her to return to work. The housekeeping department was not performing well and was under pressure. The job had become more complicated. Two of the more senior housemaids were doing their best to take charge, overseen by the Interim General Manager, but it was a difficult time for all.[36]On 8 September 2021 Ms McMahon wrote to the claimant noting the duration of sickness absence and that it had previously suggested having a meeting to discuss that absence, but the claimant had not wished to attend. The letter proposed once again a meeting to discuss the claimant’s absence and invited her to inform the respondent of suitable dates. The same letter informed the claimant that the respondent wished to obtain a report from her GP so that it could “understand the nature and extent of your present ill-health” and “an overview of the prognosis and likely timescales involved for your recovery.” A consent form was enclosed. The claimant was informed that although she did not have to give consent a failure to do so would make it difficult for the respondent to have a meaningful discussion about her health, in which case it would feel obliged to proceed without the benefit of expert evidence.[37]The claimant did not give her consent for a medical report. She expressly refused to give consent in an email sent by Mr Adams on her behalf on 13 September 2021. Her position did not change at any subsequent point. The respondent did not find her stance helpful.[38]On 16 September 2021 the respondent emailed the claimant about her ongoing absence. It noted that her most recent fit note had expired on 13 September 2021 and that the claimant had not notified the respondent of an intention to return to work. Her absence was therefore unauthorised with a possible impact on entitlement to sick pay. The claimant was therefore asked to give an update as to her present fitness for work and to provide the necessary certification if she was unfit. The claimant was also asked to reply to previous correspondence regarding suitable dates for an absence meeting.[39]By this point Ms McMahon felt that there was a serious breakdown in relations with Mr Adams who was corresponding on the claimant’s behalf. He had by this stage asserted that Ms McMahon had no credibility and was not a fit and proper person. Ms McMahon therefore handed matters over to the Interim General Manager Ms Wannan who invited the claimant for an absence meeting in an email dated 15 October 2021.[40]The email noted that the claimant would have been absent from work for five months by the end of the then current fit note. The respondent wished to arrange a meeting to discuss the claimant’s present state of health and to ascertain any indication of when she might be well enough to return to work and whether any adjustments such as a phased return to work would help. A meeting was fixed for 21 October 2021. The claimant was reminded of her right to be accompanied. The claimant was explicitly warned that while the respondent hoped to discuss with her a timescale for a return to work, if there was no information which would give any indication that a return to work was likely in the near future then consideration might be given to the termination of her employment on grounds of capability. The claimant was also warned that if she failed to attend the meeting the respondent might have to make a decision regarding her continued employment without the benefit of the claimant’s input.[41]On 18 October 2021 Mr Adams replied to Mr Waterson rather than to Ms Wannan. Mr Adams noted that the most recent fit note indicated that the claimant would not benefit from a phased return to work, amended duties, altered hours or workplace adaptations and that it was his understanding that that remained the case. Mr Adams stated that the claimant “will not be attending any meeting, at this time.” Dismissal[42]The dismissal letter was dated 22 October 2021. In that letter June Wannan set out her reasoning. She noted that the claimant had been invited to a meeting to discuss ongoing absence from work but that Mr Adams had replied on her behalf directly to Mr Waterson, indicating that the claimant would not be attending any meeting at that time. Mr Adams had also emphasised on the claimant’s behalf that the current fit note expressed the doctor’s opinion that the claimant would not benefit from a phased return to work, amended duties, altered hours or workplace adaptions. The respondent was nevertheless keen to have some input from the claimant about her ongoing health and possible timescales for a return to work. The respondent had emailed the claimant on 19 October 2021 giving her the opportunity to send in any comments or information to be taken into account before a decision was made about claimant’s continued employment. In response to that email Mr Adams had again written directly to Mr Waterson emphasising that the claimant was signed off until 14 November 2021 and that she would not be attending any meeting or entering into any dialogue at that time.[43]The letter states that Ms Wannan had decided that it was appropriate to make a decision about the claimant’s continued employment without the benefit of any input from the claimant herself or any medical input given the claimant’s refusal to grant consent to obtain a medical opinion. The letter notes that the claimant was a very long serving employee and stated that this had been taken into consideration. The letter also noted that the claimant’s absence was not her fault and that the respondent therefore intended to be fair and sympathetic to her position. However, the needs of the business were also important as the respondent sought to recover from a devastating period of disruption during lockdowns. By the end of the claimant’s then current sicknote she would have been absent for six months and there was no information indicating that a return to work was likely in the near future. The claimant was the most senior person in the housekeeping team and her absence was having an ongoing effect. Team members had left employment with the respondent. Without the benefit of the claimant’s supervision the respondent had obtained poor Trip Advisor scores for cleanliness and laundry costs had soared. The housekeeping team had been without the benefit of a leader which had resulted increased stress and additional challenges. The respondent was unable to recruit a replacement head housekeeper while the claimant remained in employment.[44]Having taken all of that information into account the decision was that the claimant’s employment should be terminated due to ongoing absence from work. The letter stated that there was no suitable alternative employment that could be offered to the claimant consistent with the doctor’s comment that amended duties were not appropriate at that time. The claimant was to be paid in lieu of 12 weeks’ notice and would also be paid for accrued but untaken holidays. After some concluding pleasantries the claimant was reminded of her right of appeal within seven days to Mr Waterson.[45]The claimant did not appeal, although Mr Adams replied to the dismissal letter in an attempt to negotiate a settlement.[46]Ms McMahon gave evidence that although solicitors gave advice on the drafting of the dismissal letter the contents were the ultimate responsibility of Ms Wannan and no one else. I accept that evidence.[47]Consistently with that finding, I also accept Mr Waterson’s evidence that he kept his distance from the disciplinary process knowing that he would probably have to hear any appeal. The correspondence shows that he was scrupulously careful to do that despite Mr Adams attempts’ to involve him at an earlier stage by replying to Mr Waterson when other managers had corresponded with the claimant. Reasoning and conclusions[48]I will deal with the parties’ key submissions in the course of expressing my reasoning. On behalf of the claimant, Mr Adams’ submissions on unfair dismissal were really focused only on the reason for dismissal and did not tackle issues of procedural fairness. That was consistent with the approach adopted on behalf of the claimant throughout the hearing.[49]The first question is the reason for dismissal. The respondent asserts that it was capability in the sense of ill-health or sickness absence. The claimant does not accept that reason and puts forward two alternatives:a. animosity, resentment or certainly a desire to get rid of the claimant which had its origins in a dispute about holiday pay and a telephone call between Mr Waterson and the claimant on 26 June 2020;b. alternatively, the true reason for dismissal was redundancy. This argument emerged during the hearing.[50]I am quite satisfied on the balance of probabilities that the manager who took the decision to dismiss was Ms June Wannan. She is the author of the letter. She did not deny responsibility for the contents of that letter in oral evidence (as Mr Adams had suggested she would) because she did not attend the hearing. She did not deny responsibility for the contents of the dismissal letter in her witness statement either, to which I gave very little weight anyway. The suggestion that in truth Paul Waterson and/or Margaret Rose McMahon were responsible for the decision to dismiss came mainly from Mr Adams, and rather more equivocally from the claimant herself in oral evidence. There was no other evidence to support the argument. I prefer the evidence of Mr Waterson and Ms McMahon, given on oath, that they had nothing to do with the decision and that Mr Waterson was keeping his distance in case there was a need for him to hear any appeal.[51]I am also quite satisfied that the reason for dismissal was capability in the sense of ill-health and sickness absence. That is consistent with the fact that the claimant had been off sick continuously for more than five months with no prognosis for a return and also with the fact that the respondent had repeatedly sought information from the claimant in relation to that sickness absence. I therefore see no reason to doubt the reason given in the dismissal letter.[52]I reject the suggestion that the real reason for dismissal was antipathy towards and a desire to get rid of the claimant which had begun the previous year. First, while disciplinary proceedings had commenced in relation to other matters, they had been postponed pending the reopening of the hotel and were ultimately abandoned with no adverse findings against the claimant once the hotel had reopened. It is difficult to reconcile that approach with a desire to get rid of the claimant. It would have been an ideal opportunity but the respondent chose instead to terminate the disciplinary process. Shortly afterwards, the claimant commenced the sickness absence which continued until her eventual dismissal. Second, there is nothing at all to connect June Wannan to the tension between the claimant and Mr Waterson the previous summer. She was independent of that and there was no evidence that she was influenced in any way by that dispute with the managing director some 16 or more months earlier.[53]I also reject the suggestion that the real reason for dismissal was redundancy. I emphasise that the issue is the reason for dismissal, and not simply whether the circumstances could have supported a dismissal for redundancy. The issue is rather whether they did and whether that was the reason in the relevant decision maker’s mind at the time of dismissal. While I did not hear evidence from that decision maker I can read her letter and assess it in the context of the other facts of the case. The idea that redundancy was the reason for dismissal is inconsistent with all of the correspondence written at the time. The mere fact that, apparently, the respondent has not filled the vacancy since the claimant’s departure is more a reflection of the financial straits they currently find themselves in than what caused it to dismiss at the relevant time. I accept that the desire to replace the claimant was genuine at the time.[54]The test of fairness in s.98(4) ERA 1996 must be answered having regard to the respondent’s reason for dismissal. I have found that it was capability. Despite several invitations to do so Mr Adams did not make any submissions on that at all and did not deal with it in cross-examination either. I bear in mind that there is no burden of proof and that the Tribunal must to some extent make its own enquiries.[55]I am entirely satisfied that dismissal fell within the reasonable range of responses for the following reasons. The claimant had been off sick for a lengthy period. Hers was a key role and it is easy to understand why a reasonable employer would wish to bring matters to a head and could not wait indefinitely to see whether a member of staff in that important role would return to work. The absence of any member of staff in any role for so long a period would fully entitle a reasonable employer to take formal action, even in relation to a very long serving employee such as the claimant. The claimant had exhausted her rights to full pay and half pay and was being paid statutory sick pay at the relevant time. Importantly, there was no prognosis at all for a return to work. There was no indication that there was anything that the respondent could do to facilitate, accelerate or improve the chances of a return to work. The claimant’s position was precisely the opposite.[56]I reject the suggestion that the respondent had caused the claimant’s illness or aggravated it by improper conduct. The evidence I have heard has not established that the respondent did anything significantly improper which caused or aggravated anxiety. It was quite entitled to investigate disciplinary matters and to pursue the disciplinary process as far as it did.[57]The respondent made reasonable attempts to consult individually with the claimant about her situation. It was the claimant’s decision not to attend meetings. The respondent made reasonable attempts to obtain suitable medical evidence. It was the claimant’s refusal to provide consent which prevented it from being obtained. The claimant was warned of the potential consequences of both matters and that the respondent might make a decision in the absence of such evidence. Alternative employment was not a relevant consideration. Even if there had been any the claimant did not suggest that she was then fit for any alternative employment at all, or that she would be so within the foreseeable future. The respondent offered a right of appeal but it was not taken up. I emphasise once again that the claimant did not make any criticism of the dismissal procedure at all. Her sole case was based on the reason for dismissal.[58]Overall, dismissal in those circumstances fell well within the reasonable range. The unfair dismissal claim therefore fails.[59]Even if it had succeeded then I would have reduced compensation for two reasons:a. the claimant continues to be unfit for work, with no clear prognosis for a return to work. At the date of this hearing she is still signed off sick more than six months after dismissal. For that reason I conclude that if there had been anything unfair in this procedure a fair procedure would have led to the same result. There is nothing to suggest that any undiscovered or unconsidered material would have changed the outcome. On that basis I would have reduced the compensatory award to zero for “Polkey” reasons. That legal shorthand was discussed and explained at the hearing.b. Further, in my assessment the claimant was guilty of culpable conduct which contributed to dismissal. If the claim had succeeded I would additionally have reduced both the basic and the compensatory awards for unfair dismissal by 80% to reflect the claimant’s culpable failure to engage with the absent management process, to attend meetings or to give consent to a very proper and necessary request for medical evidence. She was warned of the implications.[60]Having regard to the reason for dismissal, the ACAS Code of Practice and adjustments to compensation are not applicable.[61]The starting point is certainly the claimant’s written statement of terms and conditions of employment. That set her contractual salary. Mr Adams’ submission appeared to be that this document was also the end of the argument and that the claimant would always be able to insist on the rate of pay set out in her written statement of terms.[62]However, there are other potential issues. The critical question in this case is whether there was subsequently an agreed variation of the term as to salary such that the claimant agreed to accept 80% of her normal salary, the portion funded by the government during furlough arrangements, which was all the respondent was prepared to pay. There was no proposal to top up to 100%, supplying the other 20% from the respondent’s own resources. Alternatively, did the claimant waive any breach of contract there might have been? It is common ground that there were no formal written agreements recording any such consent or waiver.[63]The respondent argued that the email exchange on 22 March 2020 and 29 March 2020 amounted to evidence of the claimant’s own consent to a variation. I do not accept that submission because in my view the emails are unclear and equivocal. The claimant does indeed reply “I agree” but it is not at all clear what was being agreed to. She could, for example, have meant that she was simply agreeing with the respondent’s statement that there would be no redundancies or unpaid leave as an alternative to furlough. I cannot read the claimant’s email as an unequivocal acceptance of a reduction in pay to 80%. All that the email from Paul Waterson had said was that the government grant would be for 80% of salary. It was silent on what employees would receive or, by implication, the issue of “top up”.[64]However, the email exchange which took place on 21 April 2020 was very different and the issue was clearly defined. The claimant’s reply demonstrates clear agreement with an awareness of what was proposed. It also reveals a consistent prior understanding. Read fairly and in context, I find that it amounts to unequivocal express consent to the variation. Although the claimant did not argue that there might nevertheless have been a claim for arrears by the date of any such variation, if necessary, I would also find that this email exchange is evidence of the claimant’s waiver of any claim for arrears (i.e. for the period 22 March 202221 April 2020) up until that point. The claimant would surely have mentioned any claim for arrears if there was one.[65]On my findings it is not strictly necessary to consider the possibility of consent to variation by conduct but had it been necessary to do so I would have inferred the claimant’s agreement to a reduction of salary from her conduct. She remained an employee, accepting 80% of salary, until the matter was first complained about in a letter written by Mr Adams on 27 October 2020. During a period of furlough the issue is not really one of continuing to work, but rather one of continuing to accept salary. In my judgment continuing to accept salary without protest for 7 months is only consistent with a consensual variation. The protest set out in that letter came far too late in my judgment because the contract had already been varied as a result of the claimant’s words in emails and, if necessary, by her conduct. While it is true that accurate payslips were not initially sent to employees, bank transfers would have made it tolerably clear to staff what they were actually being paid and that it was less than the normal contractual entitlement.[66]The upshot of those findings is that the claimant is not entitled to the difference between furlough pay received and her previous contractual rate. The claim for breach of contract therefore fails and must be dismissed. Date of written reasons 26 May 2022 EMPLOYMENT TRIBUNALS (SCOTLAND) Case Number: 4112406/2021 Hearing held in Glasgow on 4 and 5 May 2022 Ms L Warner Claimant 1a Smallholding Represented by: Sauchenford Mr H Adams Stirling (Brother-in-law) Stirlingshire FK7 8AP Flagship Hotels (Stirling) Limited Respondent Abercorn House Represented by: 79 Renfrew Road Mr J Boyle Paisley (Solicitor) Renfrewshire PA3 4DA
Introduction
[1]These are the written reasons for a judgment sent to the parties on 6 May 2022. Oral reasons were provided to the parties at the end of the hearing. Written reasons have now been produced at the request of the claimant, dated 13 May 2022.[2]The claimant was formerly employed by the respondent from 25 February 2002 to 22 October 2021. The claimant worked at the Golden Lion Hotel in Stirling and by the end of her employment she was employed as Head Housekeeper. The nature of those duties requires no further explanation. The claims follow the claimant’s dismissal, ostensibly due to sickness absence, on 22 October 2021 with a payment in lieu of notice. The claimant had been absent on sick leave since 17 May 2021.[3]The parties were represented as set out above. Mr Adams is the claimant’s brother-in-law and is not a lawyer. Most of his correspondence includes reference to “LMS Partnership” but that is not a legal firm. For that reason I gave a good deal of extra guidance during the hearing regarding procedure, the issues and the relevant evidence. I encouraged Mr Adams to ask questions about relevant matters which he had not originally covered and sometimes asked him to move on from repetitive questions or topics of little or no relevance to the real issues. At some points I also offered to formulate questions for Mr Adams. Since he was unsure of the relevance of some of his questions or how best to frame them, I adopted a practice sometimes followed in the Family Court in England and Wales and elsewhere. Mr Adams had a pre-prepared list of questions for some witnesses and he was happy for me to ask all of the questions on that list that I considered relevant to the issues and also to reformulate them if necessary (for example, to avoid asking the claimant leading questions). At the end of that exercise Mr Adams confirmed that all relevant matters had been covered to his satisfaction. Claims and issues[4]In a claim form (ET1) received by the Tribunal on 14 November 2021 the claimant appeared to bring claims for unfair dismissal, breach of contract and unlawful deductions from wages. However, at the start of the hearing it was confirmed on her behalf that there was no claim for unlawful deductions from wages. The respondent defends both of the remaining claims.[5]The explanation of the unfair dismissal claim attached to the claim form is a fairly extensive narrative of alleged unfair treatment. On a quick reading it might be thought to be the basis for a constructive dismissal claim because it alleges poor treatment of the claimant beginning more than 18 months prior to the date of dismissal. There are headings “breach of duty of care”, “harassment/discrimination” and “exclusion/humiliation”. In fact, the claimant did not resign and was directly dismissed, ostensibly for capability in the sense of ill-health and sickness absence. The respondent relies on that as a potentially fair reason for dismissal. The claimant does not accept that the respondent honestly believed in that reason for dismissal and argues that the real reason for the dismissal was that the respondent did not want the claimant back at work as a result of hostility towards her originating from an incident the previous summer. By the end of the hearing the claimant also argued alternatively that the real reason for dismissal was redundancy.[6]The claim form did not raise any allegations of procedural unfairness in relation to dismissal for capability, but at the start of the hearing I explained that Tribunals would normally be concerned with issues such as:a. whether the respondent’s efforts to obtain medical evidence fell within the reasonable range;b. whether the efforts made to consult with the claimant fell within the reasonable rangec. whether there was any suitable alternative employment;d. whether, on the information reasonably available to the employer, it ought reasonably to have waited any longer for a return to work.[7]Despite several invitations to do so the claimant’s representative did not make any submissions regarding procedural fairness in the context of a dismissal for long-term sickness absence, and did not deal with it in cross-examination either.[8]The claim arises from a period of furlough. The respondent paid the claimant 80% of the normal contractual rate during that period. The issue is whether the claimant agreed to vary the relevant contractual term to that extent, or alternatively whether she waived any associated breach of contract. Evidence[9]I was provided with a pack of documents running to 277 pages, unfortunately secured only with a treasury tag. The respondent also handed in extracts from its handbook but they were not referred to during the hearing at all.[10]Only three witnesses gave evidence. For the respondent I heard from Margaret Rose McMahon (Company Controller) and Paul Waterson (Managing Director). The claimant was her sole witness.[11]I found all of those witnesses to be fundamentally honest, doing their best to help the Tribunal by giving evidence which was accurate to the best of their recollection. However, honesty is not the same thing as reliability and I found the respondents’ witnesses to be more reliable than the claimant because she was sometimes vague on important detail and sometimes contradicted herself on important detail. The respondent’s witnesses did not display any similar tendency.[12]The claimant also handed in a witness statement and resignation letter from June Wannan, formerly the respondent’s Interim General Manager. However, she was not ultimately called to give oral evidence as well so, as I had warned the claimant’s representative, the evidence contained in her witness statement was given little weight. In any event it related far more to her own experience than to the claimant’s employment or dismissal. According to the correspondence, June Wannan took the decision to dismiss the claimant. Unusually therefore, I did not hear any oral evidence from the person who, at least on the respondent’s case, took the decision to dismiss. I therefore had to assess her reason for dismissal on the basis of the documents written at the time, especially the dismissal letter, the surrounding circumstances and the evidence of other witnesses. Legal Principles[13]The first question is the reason for dismissal. The respondent must prove the reason for dismissal. In practice that means that the respondent must establish that it had a genuine belief in one of the potentially fair reasons for dismissal listed in s.98 ERA 1996. In this case the respondent relies on capability (in the sense of ill-health) which falls within section 98(2)(a) ERA 1996. The reason for dismissal is the set of facts known to the employer or beliefs held by it, which cause it to dismiss (Abernethy v Mott, Hay and Anderson [1974] ICR 323). This has also been expressed as the factor or factors operating on the mind of the decision-maker which cause them to make the decision to dismiss, or alternatively is what motivates them to do so (Jhuti v Royal Mail [2018] ICR 982).[14]If the respondent establishes a potentially fair reason for dismissal then the test of fairness in s.98(4) ERA 1996 applies. On this issue the burden of proof is neutral. The question whether the dismissal was fair or unfair having regard to the reason shown by the employer depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. The statute requires that question to be determined “in accordance with equity and the substantial merits of the case”.[15]It is well-established that a Tribunal must not substitute its own view for that of the reasonable employer (see e.g. Iceland Frozen Foods Ltd v Jones [1983] ICR 17). The law recognises that different reasonable employers might have different reasonable responses to the same situation. The fairness of dismissal is therefore assessed by reference to a “range of reasonable responses”. Put another way, if some reasonable employers would have dismissed in the same situation then the dismissal is fair. Only if no reasonable employer would have dismissed is the dismissal unfair. These principles apply as much to the procedure adopted in relation to the dismissal as they do to the overall decision whether or not to dismiss (see e.g. Sainsbury’s Supermarkets Ltd v Hitt [2003] ICR 111).[16]Cases such as DB Schenker Rail v Doolan (UKEATS/0053/09/BI), Spencer v Paragon Wallpapers Ltd [1977] ICR 301 and BS v Dundee City Council [2014] IRLR 131 establish that in long-term sickness absence cases a Tribunal will often be concerned with the following procedural issues (by reference to a reasonable range of procedures):a. whether the employer has established the current medical position;b. could a reasonable employer conclude, from the material before it, that the employee was not capable of returning to her post;c. the requirements of the business, the employee’s past sickness record and whether the employee could be offered an alternative position more suitable to her state of health;d. whether the employer consulted sufficiently with the employee;e. would a reasonable employer have waited longer to dismiss and if so for how long?[17]The statutory written statement of terms and conditions of employment is important evidence of what those terms were as at the date of its production. However, they might be varied subsequently. The general principle is that no change to contractual terms can be made without the consent of the employee. There is no requirement for “consideration” for a variation in Scotland. Consent may be express oral or written consent. Consent may also be implied from conduct in certain circumstances, for example if the employee continues to work for the employer or to accept wages without protest for a significant period of time while being aware of the change imposed by the employer. Where the change has immediate effects then continuing to work without protest may very well indicate consent (Abrahall v Nottingham City Council [2018] EWCA Civ 796). The conduct of the employee in continuing to work for the employer must give rise to an unequivocal inference of consent and must not be capable of a different explanation.
Findings of fact
[18]I made the following findings of fact. Where facts were in dispute I made my findings on the “balance of probabilities”, in other words a “more likely than not” basis. Civil procedure operates a binary system of proof in which facts which are considered more likely than not to be true are deemed to be true for the purposes of the case. Conversely, facts which are considered more likely than not to be untrue are deemed to be untrue. Nothing has to be proved beyond reasonable doubt.[19]The respondent currently operates only one hotel, the Golden Lion Hotel in Stirling where the claimant worked. It has about 66 employees. Covid disruption[20]On 22 March 2020 Managing Director Paul Waterson sent a message to all staff informing them that furlough arrangements would come into place the following day. There would be no redundancies or unpaid leave even though the hotel was more or less closed. The message noted that the company would receive a grant to pay all workers 80% of their wage up to £2,500 for the next three months. The message was silent as to whether that was all that the respondent proposed to pay its employees or whether there would be any “top up” in relation to the missing 20% of normal wages. The claimant replied saying simply, “I agree”.[21]The respondent did not ask staff to confirm their acceptance of a reduction in pay by signing a written furlough agreement or equivalent document.[22]The claimant raised the issue of “top up” in an email dated 21 April 2020. She asked whether the respondent would be adopting that approach to the staff of the Golden Lion. Harold Balgowan replied, “To answer your question. It was clarified in the email I sent to everyone on Sunday that it’s 80%. We are not topping up the difference unfortunately.” The claimant replied later that day saying “okay Harold, didn’t think so, thank you for the clarification. !!”.[23]The claimant subsequently raised an issue in relation to holiday pay and its relationship with furlough on behalf of various other members of staff. Disciplinary proceedings[24]On 26 June 2020 an incident occurred between the claimant and Paul Waterson. According to the respondent, the claimant accused him in an email of misleading her and her colleagues regarding the payment of holidays during furlough. When Mr Waterson telephoned the claimant to discuss the matter the claimant terminated the call and then refused subsequent calls. According to the claimant, Mr Waterson had called at an inappropriate time and spoke to her in an inappropriate way. It is not necessary for me to decide who was correct in order to decide the claims brought by the claimant for unfair dismissal and breach of contract.[25]On 15 July 2020 Ms McMahon emailed the claimant setting out the respondent’s view of events and inviting the claimant to attend an investigation meeting on 27 July 2020. The claimant replied by email the same day saying “I will not be attending meeting” and set out in vivid terms the outrage she felt that she was under investigation at all.[26]The claimant was invited to attend an investigation meeting on 27 July 2020. However, she replied on 15 July 2020 stating that she would not attend. From 24 July 2020 onwards Mr Adams corresponded on the claimant’s behalf. The claimant confirmed in evidence that she approved and authorised the content of all of the emails that Mr Adams sent on her behalf.[27]On 14 August 2020 Ms McMahon wrote to Mr Adams to invite the claimant to a disciplinary hearing on 18 August 2020. The allegations were that the claimant had been rude to Harold Balgowan on 15 and 16 July 2020, that the claimant had made several derogatory remarks about Mr Waterson to Harold Balgowan on both occasions and that the claimant had made several derogatory remarks about Chevonne Hutton on the same occasions.[28]On 17 August 2020 Mr Adams asserted that it was inappropriate to proceed with a disciplinary hearing while the claimant was on furlough.[29]On 25 August 2020 Ms McMahon replied stating that she had taken advice and was satisfied that she could still proceed with a disciplinary hearing concerning a furloughed employee. The hearing was rescheduled for Monday, 31 August 2020. Mr Adams objected to the continuation of the disciplinary process on the basis of the claimant’s health and well-being. Ms McMahon replied saying “I have ultimately formed the view that it would be reasonable to postpone the hearing the disciplinary hearing until a later date.” No alternative date was fixed.[30]The disciplinary proceedings were ultimately concluded without any adverse finding against the claimant. This is dealt with below. Re-opening[31]On 26 April 2021 Ms McMahon emailed the claimant to inform her that the hotel would reopen for business on 29 April 2021. With a view to returning to work on 3 May 2021 the claimant was invited to Covid-19 training on 28 April 2021. Furlough arrangements in relation to the claimant would therefore come to an end on 29 April 2021. The claimant did not engage with that training.[32]In reply, Mr Adams emailed on the claimant’s behalf on 27 April 2021. Although the email is marked “without prejudice” both sides agreed that there were certain sections that I could and should take into account. Mr Adams took many points in that email and asked seven questions about the basis of the return to work stating “until these matters are satisfactory [sic] resolved, Linda is not in a position to return to work.” Ms McMahon understood that the claimant would not immediately be returning to work as planned.[33]In a reply dated 29 April 2021 Ms McMahon confirmed that outstanding disciplinary procedures against the claimant would be “closed off, with no adverse finding against Linda. I trust that this will be agreeable.” Answers were also provided to the other six questions posed by Mr Adams in his previous correspondence.[34]The claimant subsequently provided a fit note dated 17 May 2021 certifying that she was not fit for work on account of knee joint pain. As it turned out, the claimant never returned to work from the sickness absence which commenced on this date. Subsequent fit notes described the reason for absence as knee joint pain and anxiety.[35]By about September 2021 the claimant had been absent for nearly 4 months and her absence was having a hugely detrimental effect on the housekeeping department of the hotel. The claimant was not there to lead them and no substantive head of department was in place. While the claimant was off sick the respondent did not think it was appropriate to recruit a replacement because the claimant was still employed and the respondent fully expected her to return to work. The housekeeping department was not performing well and was under pressure. The job had become more complicated. Two of the more senior housemaids were doing their best to take charge, overseen by the Interim General Manager, but it was a difficult time for all.[36]On 8 September 2021 Ms McMahon wrote to the claimant noting the duration of sickness absence and that it had previously suggested having a meeting to discuss that absence, but the claimant had not wished to attend. The letter proposed once again a meeting to discuss the claimant’s absence and invited her to inform the respondent of suitable dates. The same letter informed the claimant that the respondent wished to obtain a report from her GP so that it could “understand the nature and extent of your present ill-health” and “an overview of the prognosis and likely timescales involved for your recovery.” A consent form was enclosed. The claimant was informed that although she did not have to give consent a failure to do so would make it difficult for the respondent to have a meaningful discussion about her health, in which case it would feel obliged to proceed without the benefit of expert evidence.[37]The claimant did not give her consent for a medical report. She expressly refused to give consent in an email sent by Mr Adams on her behalf on 13 September 2021. Her position did not change at any subsequent point. The respondent did not find her stance helpful.[38]On 16 September 2021 the respondent emailed the claimant about her ongoing absence. It noted that her most recent fit note had expired on 13 September 2021 and that the claimant had not notified the respondent of an intention to return to work. Her absence was therefore unauthorised with a possible impact on entitlement to sick pay. The claimant was therefore asked to give an update as to her present fitness for work and to provide the necessary certification if she was unfit. The claimant was also asked to reply to previous correspondence regarding suitable dates for an absence meeting.[39]By this point Ms McMahon felt that there was a serious breakdown in relations with Mr Adams who was corresponding on the claimant’s behalf. He had by this stage asserted that Ms McMahon had no credibility and was not a fit and proper person. Ms McMahon therefore handed matters over to the Interim General Manager Ms Wannan who invited the claimant for an absence meeting in an email dated 15 October 2021.[40]The email noted that the claimant would have been absent from work for five months by the end of the then current fit note. The respondent wished to arrange a meeting to discuss the claimant’s present state of health and to ascertain any indication of when she might be well enough to return to work and whether any adjustments such as a phased return to work would help. A meeting was fixed for 21 October 2021. The claimant was reminded of her right to be accompanied. The claimant was explicitly warned that while the respondent hoped to discuss with her a timescale for a return to work, if there was no information which would give any indication that a return to work was likely in the near future then consideration might be given to the termination of her employment on grounds of capability. The claimant was also warned that if she failed to attend the meeting the respondent might have to make a decision regarding her continued employment without the benefit of the claimant’s input.[41]On 18 October 2021 Mr Adams replied to Mr Waterson rather than to Ms Wannan. Mr Adams noted that the most recent fit note indicated that the claimant would not benefit from a phased return to work, amended duties, altered hours or workplace adaptations and that it was his understanding that that remained the case. Mr Adams stated that the claimant “will not be attending any meeting, at this time.” Dismissal[42]The dismissal letter was dated 22 October 2021. In that letter June Wannan set out her reasoning. She noted that the claimant had been invited to a meeting to discuss ongoing absence from work but that Mr Adams had replied on her behalf directly to Mr Waterson, indicating that the claimant would not be attending any meeting at that time. Mr Adams had also emphasised on the claimant’s behalf that the current fit note expressed the doctor’s opinion that the claimant would not benefit from a phased return to work, amended duties, altered hours or workplace adaptions. The respondent was nevertheless keen to have some input from the claimant about her ongoing health and possible timescales for a return to work. The respondent had emailed the claimant on 19 October 2021 giving her the opportunity to send in any comments or information to be taken into account before a decision was made about claimant’s continued employment. In response to that email Mr Adams had again written directly to Mr Waterson emphasising that the claimant was signed off until 14 November 2021 and that she would not be attending any meeting or entering into any dialogue at that time.[43]The letter states that Ms Wannan had decided that it was appropriate to make a decision about the claimant’s continued employment without the benefit of any input from the claimant herself or any medical input given the claimant’s refusal to grant consent to obtain a medical opinion. The letter notes that the claimant was a very long serving employee and stated that this had been taken into consideration. The letter also noted that the claimant’s absence was not her fault and that the respondent therefore intended to be fair and sympathetic to her position. However, the needs of the business were also important as the respondent sought to recover from a devastating period of disruption during lockdowns. By the end of the claimant’s then current sicknote she would have been absent for six months and there was no information indicating that a return to work was likely in the near future. The claimant was the most senior person in the housekeeping team and her absence was having an ongoing effect. Team members had left employment with the respondent. Without the benefit of the claimant’s supervision the respondent had obtained poor Trip Advisor scores for cleanliness and laundry costs had soared. The housekeeping team had been without the benefit of a leader which had resulted increased stress and additional challenges. The respondent was unable to recruit a replacement head housekeeper while the claimant remained in employment.[44]Having taken all of that information into account the decision was that the claimant’s employment should be terminated due to ongoing absence from work. The letter stated that there was no suitable alternative employment that could be offered to the claimant consistent with the doctor’s comment that amended duties were not appropriate at that time. The claimant was to be paid in lieu of 12 weeks’ notice and would also be paid for accrued but untaken holidays. After some concluding pleasantries the claimant was reminded of her right of appeal within seven days to Mr Waterson.[45]The claimant did not appeal, although Mr Adams replied to the dismissal letter in an attempt to negotiate a settlement.[46]Ms McMahon gave evidence that although solicitors gave advice on the drafting of the dismissal letter the contents were the ultimate responsibility of Ms Wannan and no one else. I accept that evidence.[47]Consistently with that finding, I also accept Mr Waterson’s evidence that he kept his distance from the disciplinary process knowing that he would probably have to hear any appeal. The correspondence shows that he was scrupulously careful to do that despite Mr Adams attempts’ to involve him at an earlier stage by replying to Mr Waterson when other managers had corresponded with the claimant. Reasoning and conclusions[48]I will deal with the parties’ key submissions in the course of expressing my reasoning. On behalf of the claimant, Mr Adams’ submissions on unfair dismissal were really focused only on the reason for dismissal and did not tackle issues of procedural fairness. That was consistent with the approach adopted on behalf of the claimant throughout the hearing.[49]The first question is the reason for dismissal. The respondent asserts that it was capability in the sense of ill-health or sickness absence. The claimant does not accept that reason and puts forward two alternatives:a. animosity, resentment or certainly a desire to get rid of the claimant which had its origins in a dispute about holiday pay and a telephone call between Mr Waterson and the claimant on 26 June 2020;b. alternatively, the true reason for dismissal was redundancy. This argument emerged during the hearing.[50]I am quite satisfied on the balance of probabilities that the manager who took the decision to dismiss was Ms June Wannan. She is the author of the letter. She did not deny responsibility for the contents of that letter in oral evidence (as Mr Adams had suggested she would) because she did not attend the hearing. She did not deny responsibility for the contents of the dismissal letter in her witness statement either, to which I gave very little weight anyway. The suggestion that in truth Paul Waterson and/or Margaret Rose McMahon were responsible for the decision to dismiss came mainly from Mr Adams, and rather more equivocally from the claimant herself in oral evidence. There was no other evidence to support the argument. I prefer the evidence of Mr Waterson and Ms McMahon, given on oath, that they had nothing to do with the decision and that Mr Waterson was keeping his distance in case there was a need for him to hear any appeal.[51]I am also quite satisfied that the reason for dismissal was capability in the sense of ill-health and sickness absence. That is consistent with the fact that the claimant had been off sick continuously for more than five months with no prognosis for a return and also with the fact that the respondent had repeatedly sought information from the claimant in relation to that sickness absence. I therefore see no reason to doubt the reason given in the dismissal letter.[52]I reject the suggestion that the real reason for dismissal was antipathy towards and a desire to get rid of the claimant which had begun the previous year. First, while disciplinary proceedings had commenced in relation to other matters, they had been postponed pending the reopening of the hotel and were ultimately abandoned with no adverse findings against the claimant once the hotel had reopened. It is difficult to reconcile that approach with a desire to get rid of the claimant. It would have been an ideal opportunity but the respondent chose instead to terminate the disciplinary process. Shortly afterwards, the claimant commenced the sickness absence which continued until her eventual dismissal. Second, there is nothing at all to connect June Wannan to the tension between the claimant and Mr Waterson the previous summer. She was independent of that and there was no evidence that she was influenced in any way by that dispute with the managing director some 16 or more months earlier.[53]I also reject the suggestion that the real reason for dismissal was redundancy. I emphasise that the issue is the reason for dismissal, and not simply whether the circumstances could have supported a dismissal for redundancy. The issue is rather whether they did and whether that was the reason in the relevant decision maker’s mind at the time of dismissal. While I did not hear evidence from that decision maker I can read her letter and assess it in the context of the other facts of the case. The idea that redundancy was the reason for dismissal is inconsistent with all of the correspondence written at the time. The mere fact that, apparently, the respondent has not filled the vacancy since the claimant’s departure is more a reflection of the financial straits they currently find themselves in than what caused it to dismiss at the relevant time. I accept that the desire to replace the claimant was genuine at the time.[54]The test of fairness in s.98(4) ERA 1996 must be answered having regard to the respondent’s reason for dismissal. I have found that it was capability. Despite several invitations to do so Mr Adams did not make any submissions on that at all and did not deal with it in cross-examination either. I bear in mind that there is no burden of proof and that the Tribunal must to some extent make its own enquiries.[55]I am entirely satisfied that dismissal fell within the reasonable range of responses for the following reasons. The claimant had been off sick for a lengthy period. Hers was a key role and it is easy to understand why a reasonable employer would wish to bring matters to a head and could not wait indefinitely to see whether a member of staff in that important role would return to work. The absence of any member of staff in any role for so long a period would fully entitle a reasonable employer to take formal action, even in relation to a very long serving employee such as the claimant. The claimant had exhausted her rights to full pay and half pay and was being paid statutory sick pay at the relevant time. Importantly, there was no prognosis at all for a return to work. There was no indication that there was anything that the respondent could do to facilitate, accelerate or improve the chances of a return to work. The claimant’s position was precisely the opposite.[56]I reject the suggestion that the respondent had caused the claimant’s illness or aggravated it by improper conduct. The evidence I have heard has not established that the respondent did anything significantly improper which caused or aggravated anxiety. It was quite entitled to investigate disciplinary matters and to pursue the disciplinary process as far as it did.[57]The respondent made reasonable attempts to consult individually with the claimant about her situation. It was the claimant’s decision not to attend meetings. The respondent made reasonable attempts to obtain suitable medical evidence. It was the claimant’s refusal to provide consent which prevented it from being obtained. The claimant was warned of the potential consequences of both matters and that the respondent might make a decision in the absence of such evidence. Alternative employment was not a relevant consideration. Even if there had been any the claimant did not suggest that she was then fit for any alternative employment at all, or that she would be so within the foreseeable future. The respondent offered a right of appeal but it was not taken up. I emphasise once again that the claimant did not make any criticism of the dismissal procedure at all. Her sole case was based on the reason for dismissal.[58]Overall, dismissal in those circumstances fell well within the reasonable range. The unfair dismissal claim therefore fails.[59]Even if it had succeeded then I would have reduced compensation for two reasons:a. the claimant continues to be unfit for work, with no clear prognosis for a return to work. At the date of this hearing she is still signed off sick more than six months after dismissal. For that reason I conclude that if there had been anything unfair in this procedure a fair procedure would have led to the same result. There is nothing to suggest that any undiscovered or unconsidered material would have changed the outcome. On that basis I would have reduced the compensatory award to zero for “Polkey” reasons. That legal shorthand was discussed and explained at the hearing.b. Further, in my assessment the claimant was guilty of culpable conduct which contributed to dismissal. If the claim had succeeded I would additionally have reduced both the basic and the compensatory awards for unfair dismissal by 80% to reflect the claimant’s culpable failure to engage with the absent management process, to attend meetings or to give consent to a very proper and necessary request for medical evidence. She was warned of the implications.[60]Having regard to the reason for dismissal, the ACAS Code of Practice and adjustments to compensation are not applicable.[61]The starting point is certainly the claimant’s written statement of terms and conditions of employment. That set her contractual salary. Mr Adams’ submission appeared to be that this document was also the end of the argument and that the claimant would always be able to insist on the rate of pay set out in her written statement of terms.[62]However, there are other potential issues. The critical question in this case is whether there was subsequently an agreed variation of the term as to salary such that the claimant agreed to accept 80% of her normal salary, the portion funded by the government during furlough arrangements, which was all the respondent was prepared to pay. There was no proposal to top up to 100%, supplying the other 20% from the respondent’s own resources. Alternatively, did the claimant waive any breach of contract there might have been? It is common ground that there were no formal written agreements recording any such consent or waiver.[63]The respondent argued that the email exchange on 22 March 2020 and 29 March 2020 amounted to evidence of the claimant’s own consent to a variation. I do not accept that submission because in my view the emails are unclear and equivocal. The claimant does indeed reply “I agree” but it is not at all clear what was being agreed to. She could, for example, have meant that she was simply agreeing with the respondent’s statement that there would be no redundancies or unpaid leave as an alternative to furlough. I cannot read the claimant’s email as an unequivocal acceptance of a reduction in pay to 80%. All that the email from Paul Waterson had said was that the government grant would be for 80% of salary. It was silent on what employees would receive or, by implication, the issue of “top up”.[64]However, the email exchange which took place on 21 April 2020 was very different and the issue was clearly defined. The claimant’s reply demonstrates clear agreement with an awareness of what was proposed. It also reveals a consistent prior understanding. Read fairly and in context, I find that it amounts to unequivocal express consent to the variation. Although the claimant did not argue that there might nevertheless have been a claim for arrears by the date of any such variation, if necessary, I would also find that this email exchange is evidence of the claimant’s waiver of any claim for arrears (i.e. for the period 22 March 202221 April 2020) up until that point. The claimant would surely have mentioned any claim for arrears if there was one.[65]On my findings it is not strictly necessary to consider the possibility of consent to variation by conduct but had it been necessary to do so I would have inferred the claimant’s agreement to a reduction of salary from her conduct. She remained an employee, accepting 80% of salary, until the matter was first complained about in a letter written by Mr Adams on 27 October 2020. During a period of furlough the issue is not really one of continuing to work, but rather one of continuing to accept salary. In my judgment continuing to accept salary without protest for 7 months is only consistent with a consensual variation. The protest set out in that letter came far too late in my judgment because the contract had already been varied as a result of the claimant’s words in emails and, if necessary, by her conduct. While it is true that accurate payslips were not initially sent to employees, bank transfers would have made it tolerably clear to staff what they were actually being paid and that it was less than the normal contractual entitlement.[66]The upshot of those findings is that the claimant is not entitled to the difference between furlough pay received and her previous contractual rate. The claim for breach of contract therefore fails and must be dismissed.