Mrs L McWilliam v Stranraer Skills Station Ltd: 8002189/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002189/2025
Between
Mrs Lillias McWilliamClaimantStranraer Skills Station LtdRespondent
Before
Employment Judge MurphyMr T Muirhead for respondentLitigation for respondentConsultant for respondentDate 3 February 2026
JUDGMENT
The judgment of the Tribunal is that:(i) the claimant’s complaint of unauthorised deductions from wages in respect of payment for alleged accrued untaken holiday is dismissed pursuant to Rule 51 of the Employment Tribunal Rules 2024 (“the Rules”), having been withdrawn by the claimant (C) at the hearing on 13 January 2026;(ii) C’s complaint of breach of contract in respect of notice pay (also known as wrongful dismissal) is dismissed pursuant to Rule 51 of the Rules, having been withdrawn by C at the hearing on 13 January 2026;(iii) C’s complaint of unfair dismissal does not succeed and is dismissed.(iv) C’s claim for damages for breach of contract in respect of lost earnings between mid-June 2024 and the termination of her employment on 11 May 2025 does not succeed and is dismissed.(v) C’s complaint of unauthorised deductions from wages in respect of the respondent’s failure to pay C salary and working from home allowance between mid June 2024 and the termination of C’s employment on 11 May 2025 does not succeed and is dismissed.
REASONS
[1]This final hearing took place by video conferencing at the Glasgow Employment Tribunal.[2]C gave evidence in her own right. R led evidence from Gillian Templeton, HR Director (GT), Lynne McIlraith, Office Manager (LM) and Elaine McCourtney, Director (EM). Evidence was taken orally from the witnesses. A joint set of productions was lodged, running to 324 pages. Shortly before and on the first morning of the hearing, the parties respectively produced additional documents. R lodged a supplementary bundle of 25 pages and C lodged a further 16 pages of documentary evidence.
Issues to be determined
[3]Prior to hearing evidence, we had a preliminary discussion to clarify the issues. C withdrew claims for holiday pay and notice pay. She confirmed that she does not seek to advance a complaint that R made deductions from her wages in respect of sick pay.[4]C confirmed that she complains that her dismissal was unfair. C confirmed she also complains about an alleged refusal by R to accommodate home working for her after she transferred to R on 13 November 2023 under TUPE. C claims that she was contractually entitled to work from home and that R breached her contract by refusing to permit this arrangement. C was off sick from 13 November 2023 until her employment ended on 11 May 2025. She alleges she would have been fit to work had she been permitted to work from home in the period between mid-May 2024 and the termination date. C claims damages referable to this period in the amount of her salary plus working from home (WFH) allowance. Alternatively, C claims that her salary and WFH allowance were unlawfully deducted from her wages in the period between mid-June 2024 and 11 May 2025.[5]As the hearing continued, the rate of progress caused a concern that the hearing may not be completed in the three days allocated. I decided (with no objection from the parties) to hive off the remedy issues and confirmed that, if C should succeed in any of her complaints, a separate remedy hearing will be listed. The issues to be determined in the case, as agreed with C and Mr Muirhead during the preliminary discussion, are as follows (subject to the removal of issues relating to remedy):(1) The respondent admits dismissing C with effect on 11 May 2025. What was the reason or the principal for the dismissal? R says its reason was capability or, in the alternative, some other substantial reason (SOSR).(2) If the reason was capability, did R act reasonably in all the circumstances in treating that as a sufficient reason to dismiss C? The Tribunal will decide, in particular, whether: i. R genuinely believed C was no longer capable of performing her duties; ii. R adequately consulted C; iii. R carried out a reasonable investigation, including finding out about the up-to-date medical position; iv. R could reasonably be expected to wait longer before dismissing C; v. Dismissal was within the range of reasonable responses.(3) If the reason was not capability, was the reason a substantial reason capable of justifying the dismissal? R says the substantial reason was that C was not capable of returning to work for the foreseeable future because of her health.(4) Did R act reasonably in all the circumstances in treating that as a sufficient reason to dismiss C?(5) C makes a complaint of breach of contract in respect of R’s alleged refusal to permit home working. Did this claim arise or was it outstanding on the termination of C’s employment?(6) Did R refuse to permit C to work from home in the period from midJune 2024 to 11 May 2025 or decline to confirm that she would be permitted to do so on her return to work from sickness absence?(7) Was that a breach of a contractual term? C says that a term of her contract with her predecessor employer, Leonard Cheshire Disability (LDC), was that she had the right to work from home (WFH) and to receive a WFH monthly allowance of £52.33. C says these asserted terms bound R as the transferee employer after she transferred to their employment under TUPE.(8) If R breached a contractual term by its actings, did the breach cause C loss? It is C’s case that, had R confirmed they would allow her to WFH on returning from sick leave, she would have been fit to return in mid-June 2024. She alleges that she would have been entitled in such event to her full monthly salary plus WFH allowance in the period from mid-June 2024 to 11 May 2025. C says the gross monthly loss was £2,504 per month. She says in her claim form that her net monthly pay was £2,004 per month. She claims damages on the basis of these figures for approximately 11 months.(9) Alternatively, if C’s breach of contract claim does not succeed, did R make a series of unauthorised deductions from C’s wages from mid June 2024 to May 2025? C’s case is that she ought to have been paid her full monthly salary plus WFH allowance throughout that period.(10) Were these wages ‘properly payable’ to C throughout that period? Did she have a contractual or some other entitlement to these wages? Findings in fact[6]The following facts, and any further facts set out in the ‘Discussion and Decision’ section, are found to be proved on the balance of probabilities or were agreed by the parties. The facts found are those relevant and necessary to our determination of the issues. They are not intended to be a full chronology of events. Before the TUPE transfer: August 2015 to November 2023[7]On 1 August 2015, LCD provided C with a written offer of employment to work as a Service Manager from 10 August 2015. The offer letter referred to C being based at the Dumfries Office. C was also provided on that date with an enclosed Statement of Terms and Conditions of Employment (“the 2015 Statement”) which also referred to C’s place of work being in Dumfries. C declined to sign the 2015 Statement because of an error in the place of work. She was, in fact, to be based in LCD’s Stranraer office, not their Dumfries office. The offer letter and 2015 Statement were not amended to reflect the correct place of work.[8]C began her employment with LCD on 10 August 2015 and was based at their Stranraer office. Her responsibilities were to manage care services provided to individuals in residential accommodation at two sites called Rowallan and Llambwill (the Care Sites). There was a desk-based aspect to her role which involved paperwork in connection with auditing and other managerial aspects of the services. Her role also required her to visit the Care Sites from time to time. She was initially contracted to work 20 hours per week.[9]LCD’s Stranraer office remained C’s principal place of work with visits as required to the Care Sites from 10 August ’15 until around February 2016.[10]In around February 2016 LCD decided to close its office in Stranraer to achieve costs savings. Around this time, C had a conversation with a Director of LCD called Stuart Robertson (SR) in LCD’s Head Office in Edinburgh. SR told her of LCD’s plans to close the Stranraer office. He met with her again in the Stranraer office and explained that LCD wished to save money on office costs. He said words along the lines that it made sense for C to work from home and that, if C was accepting of that, he would contact the Operations Manager, Anne Brownan (AB), and the Admin Team to put the arrangement in place. SR told C that she would still have to visit the serviced accommodation as required. SR told C that he would put in place a WFH allowance of around £36 per month. There was no discussion between LCD then or at any other time regarding whether the WFH allowance would remain payable if C was off sick.[11]C agreed to work from home. LCD provided C with no documentation to confirm the change at the time. She began working from home from around February 2016 in line with the discussion with SR.[12]After the change to WFH, C continued to visit the Care Sites as needed. She attended at Llambwill around once a week and Rowallan slightly more frequently, with the frequency varying depending on the needs of the services.[13]On 16 December 2016, AB sent C an internal form which she told her should have been filled in when C started working from home (the 2016 Form). The form was headed “Change of details form”. It included the following text just beneath the heading: “This form should be used when any details about an employee or their terms and conditions are changing…” The form had been completed with C’s name and employee number. It recorded the effective date of the change as 24 February 2016. The form was signed by AB on behalf of R. The form included a box headed ‘Additional Information’. In this section, AB had typewritten the following: “The Service Manager is a permanent home worker and requires an allowance towards her costs. There is no office for her to work from. In this particular instance a homeworking allowance is to be paid.”[14]C was paid WFH allowance for the period from 24 February 2016.[15]On 10 November 2017, LCD issued C with another statement of terms and conditions (the 2017 Statement). This was issued because C’s job changed from Service Manager to Deputy Manager RN. It included a clause headed “Your place of work”. This recorded erroneously that C’s “normal place of work will be Rowallan, Bayview Road, Stranraer” (one of the Care Sites). It recorded that she may also be at other locations within reasonable travelling distance on a temporary or permanent basis. C declined to sign the 2017 Statement. Its recording of her place of work was erroneous. C continued to work from home and to visit the Care Sites as and when required. The document was not updated or corrected by LCD to reflect the correct position. LCD continued to pay C her WFH allowance and she continued to WFH. Rowallan did not have premises suitable for C to base herself there as her normal place of work and there was never any agreement between LCD and C that she would do so despite the terms of the 2017 Statement. LCD did not issue a corrected Statement at the time reflecting C’s actual normal place of work which continued to be her home.[16]At the end of November 2017, LCD stopped paying C’s WFH allowance. C continued to work from home. The cessation of payment of the WFH allowance was an error on LCD’s part. It was not picked up for some time.[17]On 31 May 2018, LCD issued a further statement of terms and conditions (the 2018 Statement). This one referred to C’s job title as ‘Deputy Manager (Non RN). It repeated the ‘Your place of work’ clause that appeared in the 2017 Statement which again wrongly identified C’s normal place of work as Rowallan. It also erroneously recorded that C’s normal working hours were 10 hours per week. C was contracted to work and was working and being paid to work 20 hours per week. C declined to sign the 2018 Statement due to the errors. C continued to work from home and to visit the Care Sites as and when required. LCD continued to pay C her WFH allowance. LCD did not issue a corrected Statement at the time reflecting C’s actual normal place of work which continued to be her home or her correct working hours.[18]In 2018, AB discussed with C that LCD was looking at opening a new office in Stranraer of just one or two rooms for the purposes of holding team meetings and meetings with the families of the supported individuals. Neither AB nor anyone else at LCD discussed or agreed with C any future changes to her place of work as a result of the proposal.[19]On 18 June 2018, C’s hours increased from 20 to 30. Keith Richardson, Service Manager (KR), wrote to C in the following terms: “Further to confirmation of the increase in service provision hours within our Stranraer Supported Living Services I confirm the increase to your Deputy Manager (RN Equivalent) contracted hours from 20 to 30 coming into effect today Monday 18 June 2018. Twenty of these hours will be to provide management support to the Rowallan Service and ten hours towards the Llambwill …Service. This will initially be homebased but, as you are aware, the aim is to pursue an office base in Stranraer. All other terms and conditions will remain the same. To confirm that you are in agreement with the above contract variation, please sign the attached acceptance slip and return it to me..”[20]It is not established that C signed the acceptance slip. C continued to work from home (with visits as required to the Care Sites).[21]In or around 2019, LCD opened a new office in Stranraer. It was smaller than the office LCD had operated previously in Stranraer before the closure. Around the time the new office opened, AB had a discussion with C. She told C the arrangement of C working from home would remain in place and that the office would be used for supervision meetings, team meetings and family meetings. C continued to work from home. She continued to visit the Care Sites as and when required. She also visited LCD’s new office from time to time for supervision meetings with the Team Leaders who reported to her as well as to attend team and family meetings.[22]In or around February 2021 LCD’s error with respect to its failure to pay WFH Allowance was identified and rectified. On or about 2 February 2021, Keith Richardson (KR) of LCD completed a further internal ‘Change of details’ form for C. He recorded that the effective date of the change was 1 December 2017. The template form had been amended since the 2016 Form had been completed for C. The box which had previously been headed ‘Additional Information’ was now headed “** PLEASE CONFIRM BELOW IF A NEW CONTRACT IS REQUIRED ON CHANGE OF EMPLOYMENT TERMS AND CONDITIONS AND WHY**”. In the box, KR wrote: “This ee’s working from home allowance was stopped at the end of Nov 17, this was an error and requires to be reinstated and backdated to 1st December 2017. At the time she was on 20 hours per week until the 18th June 2018 when she increased to 30 hours per week. Please could you arrange to reinstate this payment until further notice.”[23]In February 2021, LCD paid C a back payment of her accrued monthly WFH allowance in the period from 1 December 2017 to February 2021 at the rate of £36.33 per week. LCD then identified that C ought to have received a higher rate of WFH Allowance from December 2020 of £52.33 per month. A further back payment was made to correct this short payment.[24]Thereafter C continued to work from home and to be paid a monthly WFH allowance of £52.33.[25]At some stage in 2021, LCD closed their office in Stranraer. Throughout the period it had been open, C had worked from home, visiting the Care Sites and attending the office for meetings as required.[26]In February 2022, C was off sick for a week. LCD paid her the full WFH allowance for that month, notwithstanding the absence. There was no discussion between C and LCD about the impact of her sickness absence on her entitlement to the WFH allowance.[27]In January 2023, C was absent on sick leave from her employment for 10 working days with a cold / flu. In August 2023, C consulted her doctor about blood in her urine. The doctor undertook various tests to investigate the cause of this, including to eliminate the possibility that this symptom was caused by cancer. This was a particularly stressful period for C. She was feeling under the weather. It is not established that C received WFH Allowance for the period of the absence.[28]In September 2023, C was absent on sick leave for a further four working days with stress / depression. It is not established that C was paid WFH allowance during her sickness absence in 2023.[29]When not off sick, C continued to work from home 30 hours per week and be paid £52.33 per month by LDC in addition to her salary by way of WFH allowance. Events after the transfer from LCD to R: 13 November 23 – 11 May 25[30]On 13 November 2023, C’s employment transferred to R under TUPE as did that of a number of her colleagues. R took over the provision of the services at the serviced accommodation for which C was employed as Deputy Manager. R is a limited company with two directors, Gillian Templeton and Elaine McCourtney. GT takes within her remit responsibility for HR matters among other remits. She has no HR related qualifications or accreditations. R employed around 83 members of staff.[31]Prior to the transfer, LCD provided R with certain Employee Liability Information (ELI) pursuant to regulation 11 of TUPE. The ELI table recorded C’s start date (incorrectly) as 8 January 2016. It recorded that she worked on the Rowallan service. There was a column for ‘additional employee benefits’ which was blank. There was a column headed ‘any other information relevant to TUPE’ which was blank. Nothing in the document communicated that C worked from home or that she received a monthly WFH allowance of £52.33.[32]A day or two after the transfer (on or about 15 November 2023), GT was provided with a copy of C’s personnel file by LCD. It is not established which documents this contained or whether it was complete save that it did contain a copy of KR’s letter of 20 June 2018.[33]On the day of the transfer, C was signed off sick. The haematuria continued. She still didn’t have a diagnosis identifying the cause of this symptom and she continued to have invasive tests to try to get a confirmed diagnosis. As well as the blood in her urine, C suffered from swollen hands and ankles and from fatigue.[34]On 20 November 2023, C was signed off until 27 November 2023. That fit note recorded that because of her condition of ‘haematuria and lethargy’, C was certified as not fit to work. A further fit note was issued on 28 November 2023 until 26 December 2023, again certifying C was unfit to work because of ‘haematura/lethargy’. C remained off sick until R terminated her employment by letter of 1 May 2025 with effect on 11 May 2025.[35]Throughout her absence, C obtained fit notes at the appropriate times and provided them to R. The fit notes after December 2023 recorded the reason for C’s absence as ‘haematuria’. All of the fit notes certified C was unfit for work. None of them ticked the box to indicate that C may be fit for work taking account of advice or adjustments. On a number of occasions R mislaid C’s fit notes and suggested to C that the fit notes had not been handed in. C required to obtain duplicates on such occasions. C became frustrated with R’s handling of these administrative matters and lost confidence in R’s competence in relation to the filing and retention of her confidential employee information based on her experience with the fit notes.[36]From 13 November 2023, R paid C occupational sick pay. This was paid at the rate of full pay for three months then at the rate of half pay for three months. C ceased to receive Occupational Sick Pay on 6 May 2024. At that stage, R started to pay C statutory sick pay (SSP) which C continued to receive until 13 November 2024. R did not pay C any monthly WFH allowance from the transfer date in November 2023.[37]In the period between 13 November 2023 and 12 March 2024, C and R did not discuss whether she would work from home if she returned to work. C was signed off sick and was not fit to return so the issue did not come up.[38]On 12 March 2024, C attended a welfare meeting at R’s office in Stranraer with GT. C raised with GT a query about whether she should be receiving her WFH allowance and also raised a query about pension contributions. GT said there was nothing about working from home in the ELI. There was little further discussion because the meeting was cut short as GT had been unwell and C was concerned about contact with her given C’s health problems.[39]Following the meeting, GT contacted Bob Brown, People Partner, at LCD (BB). In relation to the question of WFH allowance, BB said, “I am not sure why Lil appears in receipt of working from home allowance as there is no formal approval for her to work from home, on her file. All of our Deputy Managers in Leonard Cheshire are service based. We would not propose to attempt to recover any potential overpayment.” BB’s account of the matter was wrong, but GT was not aware of this at the time. GT wrote to C on 19 March 2024 and quoted BB’s response to her on the question of WFH allowance.[40]C was shocked by this. She wrote to R on 22 March 2024. She said, “I’m in receipt of working from home allowance as [Leonard Cheshire] closed their office in Stranraer many years ago. I could not be based in people’s homes [referring to the Care Sites]. The Director Stuart Robertson asked me to work from home and Ops Manager Anne Browning put this in place. I have the emails regarding this. Keith Richardson is well aware of this longstanding arrangement.”[41]C remained signed off sick. GT did not make further enquiries of LCD in light of C’s comments about the working from home issue. R did not respond to C’s letter of 22 March 2024.[42]By letter dated 8 April 2024, C was invited to and attended a meeting with GT on 16 May 2024 to discuss C’s health situation. The letter also requested C’s consent to contact C’s doctor directly to ask his opinion of the likelihood of C being able to return to work and whether there were reasonable adjustments they could make to facilitate this. C did not provide consent for R to contact her GP. C was concerned about R storing her confidential information as she had lost trust in R’s document security.[43]On 16 May 2024, the proposed meeting took place between C and GT in R’s Stranraer office. Fiona Camlin, Ops Manager, attended as a notetaker. The meeting room was accessed by a steep staircase which C struggled with. She remarked to GT that it was ‘hellish’ or words to that effect and GT replied along the lines that it was GT’s ‘daily workout’.[44]C told GT that she was seeing a consultant, that she had had scans, that she had been to the renal clinic and that she still had ongoing health issues. She advised GT that she still had blood in her urine and lumps over her body. She advised that they were still trying to find out where the blood was coming from. She said she had been advised to follow a renal diet low in salt. GT asked C if there was anything the company could do to support C back to work. She replied that there were no adjustments R could make as C was not well enough. C asked GT if there was an opportunity for redundancy and GT responded that she didn’t think so. C said she didn’t see herself returning to work anytime soon.[45]GT asked if C was willing to sign the GP permission slip. C said she was not. C raised the issue of her WFH allowance and said she was concerned that LCD didn’t forward her working from home allowance information to R as part of TUPE. GT undertook to contact LCD regarding this.[46]On 28 May 2024, GT wrote to C and asked her to reconsider giving GP consent or, in the event that C declined, that she consent to an Occupational Health appointment. GT said, among other things: “We do need to consider the situation very carefully, as an absence of this length, does cause our company some difficulty. I need to inform you that if your absence continues and we are not in a position to gain any medical opinion on the situation, we will have to consider making decisions in the absence of a medical opinion and on the basis of the information we have available.”[47]On 7 June 2024, C emailed GT, once more refusing to consent to R contacting her GP but confirming consent to attend an Occupational Health referral appointment.[48]GT did not successfully source a local OH provider to undertake a consultation with C until around September 2024. When she was unable to do so, GT did not widen her search to OH providers in other locations such as the Scottish central belt. GT did not update C with respect to any progress (or the reasons for the lack thereof) in relation to the proposed OH appointment during this period.[49]On 3 July 2024, C emailed GT regarding her WFH allowance. She asked GT to check the ELI information LCD had sent R to see if working from home was on her email or to email the ELI to her so she could sort it out. GT replied on 5 July 24. She said, “Unfortunately the only information I received on your ELI was your Contract of Employment, Sickness Record and Holiday record. There was no mention of any additional payments. I hope you get this resolved soon”.[50]On 9 August 2024, R invited C to another welfare meeting with GT which was scheduled for 23 August 2024. The meeting was postponed and took place on 10 September 2024. Lynne McIlwraith (LM) attended as note taker. At the meeting, C provided fit notes for the period to 1 October 2024. C did not retrieve the fit notes and take them away again when she left the meeting. R subsequently mislaid the fit notes. The fit notes confirmed that C was unfit for work because of haematuria and, again, did not indicate that C might be fit to work with any adjustments. During the meeting, when asked about her health, C told GT she was ‘making slow progress’.[51]GT told C she had finally managed to arrange for an occupational videocall with an OH provider called ‘Latus Group’. C confirmed again that she was agreeable to this. GT referred to the WFH issue and told C that LCD were not communicating with R since stating that working from home was ‘not a thing’. In fact, GT had not contacted LCD with regard to the matter since her last exchange of emails with Bob Brown in March 2024. GT repeated at the meeting on 10 September that the ELI did not give any information about a WFH allowance.[52]C told GT that ‘the law states’ R is now responsible for her working from home. She said she had been to an Employment Tribunal and that as R was now her employer, she must sue them for payment. She suggested she was owed £20,000. C told GT that, if she had received this, she would have been able to continue to work from home.[53]Later the same day, GT sent an email to Jon Forde of LCD. She referred to the Tribunal dispute between C and LCD and referred to what she suggested was BB’s previous reassurance that there was never homeworking allowances pair to Mrs McWilliam. (BB had, in fact, said he was not sure why C appeared to be in receipt of WFH allowance as there was no formal approval).[54]On 24 September, C emailed GT and Jon Forde of LCD. She referred to a previous email she had sent to J Forde on 10 May which she said attached three further emails from LCD which she said referred to her working from home allowance.[55]On the same date, Jon Forde emailed GT. He confirmed there was an error by LCD regarding the TUPE information and that, in fact, C had been receiving a WFH allowance on a regularly monthly basis and that this should have been included with the information shared with R. He confirmed C was paid £52.33 per month gross and told GT he would send R a payment of £627.96. He advised that he was happy to make a payment equivalent to two years’ WFH allowance of £1,255.92 ‘as a gesture’. The payment of £627.96 was made to R. LCD did not pay to R the mooted further payment of £1,255.92.[56]Later that evening, GT called C and told her about Jon Forde’s email. She told C that he was offering £1,255.92 as a gesture of good will. C declined this offer. GT told C that the WFH allowance was only in place because LCD did not have an office in Stranraer. GT told C that R has an office in Stranraer and therefore it would make no WFH payment.[57]Later still that evening, C emailed GT and Jon Forde. She narrated the history of the efforts she had made to try to resolve this with LCD. She said her ‘Schedule of loss’ was £600 which she described as an unlawful deduction for the ‘breach of the WFH allowance’ and a further £18,750. This latter sum, said C, was the consequence of LCD not providing the ELI to R. She said: ‘I could have been at work had my WFH been in place’.[58]On 22 October 2024, R paid to C £627.96 which it had received from LCD as a ’gesture of goodwill’.[59]At some stage around September / October 2024, C was diagnosed with a kidney condition called Nephrotic Syndrome. This was identified as the cause of her haematuria. Around this time, she was prescribed iron tablets and water retention tablets. She found the iron tablets were helpful. However, C remained off sick. Her fit notes continued to certify that she was unfit for work and continued to record haematuria as the cause.[60]On 4 December 2024, C sent GT an email which she headed ‘Grievance’. She said, “If you could ask your admin to send an electronic copy of your grievance form I’ll complete it forward it to you. The grievance would contain the following.” She went on to list the WFH issue (which, she did not expand upon as, she said in the email, GT was already aware) and complaints about inaccurate pay slips. She ended her email by saying, “I appreciate the issues are not on your grievance form however if they could be added to the grievance form or send me a form and I’ll add these issues”.[61]On 8 December, GT sent C a copy of the Disciplinary and Grievance Procedure. She said, “if you wish to make a grievance can you put this into writing please…”. C did not send a further communication repeating the contents of her email of 4 December 2024 and GT did not progress the complaints in that email in line with R’s grievance procedure or at all.[62]At some stage in late 2024 / early 2025, C was diagnosed with Chronic Fatigue Syndrome.[63]On 21 January 2025, GT sent a letter to C and indicated they had been unable to locate any fit note after the period from 17 to 31 May 2024, despite C having provided fit notes to 1 October 2024 at the meeting on 10 September 2024. The letter also said “To terminate your employment with [R] you would be required to give 4 weeks notice in writing” (sic).[64]On 24 January 2025, C replied by email, advising she had handed in fit notes regularly and that the only outstanding one was a fit note covering the period from December 2024 into January 2025. C confirmed that she would hand that in. She complained that it was ‘astounding’ so many of her fit notes were missing. In that correspondence, she also said: “Regarding my employment, I have been off work for sometime I don’t know if I’d be fit to return to work. I could discuss this with my GP. My working from home has been sorted out and Leonard Cheshire has apologised for not transferring my working from home across to SSS so working from home would make life easier. The only other option would be redundancy, which I would consider if available. My preferred option would be to return to work fairly soon with reasonable adjustments in place.”[65]On 4 February 2025, C attended a ‘welfare’ meeting with GT. During the meeting there was discussion about fit notes and C repeated she was regularly handing these in. C referred again to the possibility of redundancy and talked of mistrust in R and feeling that the working relationship had broken down.[66]On 6 February 2025, C sent an email to R in which she complained about the history with the ELI and suggested the best way forward would be for her to leave with redundancy. She suggested LCD had already paid R £2,000 and suggested that LCD might be asked to contribute to any redundancy funds. She said, “A working relationship would be extremely difficult due to recent mistrust issues over errors made recently with ELI information”.[67]On 19 February 2025, GT sent C a letter regarding a number of matters. In it, she advised that R did not wish to explore the redundancy option.[68]On 24 February 2025, C emailed GT as follows: “I appreciate my tribunal case has not being heard yet however however will Stranraer Skills Station put working from home in place for me?” C received no reply to the email. C was not referring in that email to the present proceedings but to a prior Tribunal claim she had initiated against LCD.[69]On 27 February GT sent C a letter which did not reference C’s email of 24 February but asked C to agree to R arranging an OH assessment for C. GT asked C to do so by 7 March 2025 and advised that on receipt of C’s agreement, she would arrange an OH appointment for C.[70]On 1 March 2025, C replied to GT and recorded that she had confirmed her agreement to attending an OH appointment on 15 May, 7 June and 10 September 2024. She reiterated that she was agreeable to an OH appointment. C also said: “Regarding my e-mail of 24th February 25 referencing working from home I note you have not responded to my e-mail yet. Working from home isn't a health issue and would not be part of an OH assessment. Gillian you have always said you are a straight talking person. I'm asking a straight question yet again. Would SSS put working from home in place for me. I would appreciate a straight yes or no answer.”[71]C received no response. On 6 March 2025, C sent GT a further email. She said she was trying to make some decisions about her employment and wished to know where she stood on whether or not R would provide a working from home contract. She said if they did not, she would want to leave employment quickly.[72]GT replied on 6 March 2025. She said, “At this stage I’m trying to work out via Occupational Health your fitness to return to work. And I’m a little confused as your last email stated you couldn’t work for Stranraer Skills Station because of various issues. Occupational Health will be in touch and we can take it from there.”[73]C responded on 6 March 2026. She said she’d seen a job she could apply for but that if R would provide her with working from home, then she’d opt for that. She said, “I don’t know what the problem is with letting me know one way or another”. GT did not respond substantively on the working from home question.[74]On 20 March 2025, C attended an OH consultation by telephone or videoconference. The delay in the arrangement of the OH appointment was due in some part to a problem or an error with R’s use of the OH Advisor’s electronic portal system. No part of the delay was attributable to C. During the appointment, C told the OH Advisor, Dr Naoui (Dr N), that she did not feel able to do any aspect of her role and that she did not think she would be able to return. She and Dr N discussed the possibility of “maximal adjustments” such as desk-based activities only, working from home, a reduction in contractual hours and ergonomic desk equipment. C told Dr N that even if these things could be accommodated, she did not feel that they would be sufficient to allow her to return to work. She told Dr N that she had concerns about managing pain when using a computer and about managing fatigue at work.[75]On 26 March 2025, Dr N prepared a report. She recorded what C had told her about her health and fitness for a potential return to work. She recorded that C had been diagnosed with a chronic renal condition resulting in painful swelling in her hands and ankles and that she was also being diagnosed chronic fatigue causing extreme tiredness and brain fog. Dr N recorded that C told her she can spend up to 16 hours per day in bed but without restful sleep and that she had problems with shortness of breath. Dr N opined in the report that C was medically not fit for work. Dr N said that, given the prognosis for C’s conditions, a return to C’s contractual post was unlikely unless C was able to access further treatment from a specialist chronic fatigue service and that this resulted in an improvement in her symptoms and functioning. Dr N recorded that, in such event, she expected C would still require adjustments to her role, given the hand and ankle swelling would continue. Dr N also recorded that she had asked C about possible redeployment, but that C did not, a the time of the appointment, feel she was able to undertake any work.[76]On 4 April 2025, C was sent a copy of the OH report. C was told by Latus that they had previously emailed the report to her but that they had been provided with the wrong email address by R. Because of this error, C did not receive the report two working days before it was sent to R, as she had been told she would, and did not get the opportunity to comment upon it before it was sent by Latus to R. In the event, C did not dispute the substantive contents of the report, save that she disputed having told Dr N that her role involved any manual handling activities.[77]On 7 April 2025, R sent a letter inviting her to a review meeting to discuss C’s continued absence because of ill health and the content of Dr N’s report. The invite letter included the following: “The information contained in the report indicates that you will not be able to return to work in the foreseeable future. This causes concern for the Company, as it is not feasible to cover your duties either by temporary staff or through overtime on a long-term basis. A decision will therefore have to be made on your future employment with the Company, and a possible outcome of this meeting is that your employment may be terminated.”[78]The meeting, initially proposed for 15 April, was rescheduled due to C’s ill health, and it subsequently proceeded on 29 April 2025. C attended the meeting with GT and LM attended as notetaker.[79]During the meeting, C told GT that she felt there had been an improvement since her OH appointment on 20 March. She said she wasn’t experiencing the same amount of tiredness and less water retention. She said she’d started on iron tablets and different tablets to treat the water retention which had resulted in an improvement. She said she had a GP appointment later that day. GT told her that due to the OH assessment, she had to terminate on medical grounds. C said words along the lines that it would be uncomfortable and difficult to work for R in circumstances where she intended to sue R.[80]At the meeting, C also took the opportunity to discuss complaints about R and told GT she intended to sue. She complained about working from home being denied, the quality of the ELI information process, the nonpayment of WFH allowance and what she described as breach of confidentiality regarding her fit note loss.[81]On 1 May 2025, GT prepared a letter confirming C’s dismissal. Though GT gave an instruction for it to be sent, C did not receive the letter initially. She had, however received it by 11 May 2025. The letter recorded that C’s termination date would be 11 May 2025 (with a payment in lieu of C’s notice). The letter recorded GT’s reason for dismissing C as follows: “Considering both the medical information provided and the lack of a definitive timescale for your return to work indicated by your Occupational Health Advisor, the Company must consider the options available. Regrettably, the covering of your duties either by temporary staff or through overtime is not feasible in the long term. We have established that there are no posts that may be considered as suitable alternatives, nor are we able to make any reasonable adjustments to your work environment. With this in mind, regrettably we have no alternative but to terminate your employment with us.”[82]On 19 May 2025, C sent an email to R which said: “I’ve attached amendments to the minutes of the 29th April 2025 meeting. Please issue accurate minutes. I provided SSS with a copy of the document I read out at the meeting yet much of the information within the minutes is not accurate. I appealed as the minutes … are inaccurate.”[83]C attached a document headed Correction to Minutes of Meeting of 29 April 2025. The document contained a number of corrections to the minutes she had received of the meeting of 29 April. The minutes had been prepared by LM. In summary, C disputed the following points as recorded in the minutes:(1) that she had agreed dismissal was the best outcome;(2) that she said she felt her contract was being terminated on personal grounds rather than medical grounds (C advised she did not say this);(3) that p.1 ended with G thanking C for attending when that should have been recorded at the end of the second page;(4) that C did not say it was ridiculous to work for R but rather said it was ridiculous situation in which to find oneself, suing one’s employer for breach of contract; and(5) corrections regarding what C said about the ELI information to accord with the document from which C had read.[84]C did not send any other appeal grounds indicating why she considered the dismissal decision to be wrong or inappropriate. R invited her to do so by letter dated 16 May 2025. R then wrote to C on 22 May to invite C to an appeal meeting on 30 May 2025. R sent the letter by second class post and C did not receive it. Consequently, the appeal hearing was rescheduled to 6 June 2025 and was conducted by Elaine McCourtney, Director, (EM). Fiona Camlin, Operations Manager, attended as notetaker. During the meeting, EM went through C’s list of corrections to the appeal minutes. In relation to the first point (only) she agreed to edit the minutes as C had suggested but in relation to the others, she insisted that the notes were an accurate account based on EM’s discussions with GT and LM prior to the appeal meeting. C was unhappy with EM’s approach in circumstances where she said she had read from a written document and had also provided R with a copy of the document.[85]There was no discussion during the appeal meeting about whether the decision to dismiss was correct, fair or reasonable. C did not raise this. C made no suggestion there had been any change in her health situation. EM told C that she would send the altered notes out, that C would get 10 days to respond and that there would be a second appeal hearing. C said she’d never attended a second appeal hearing before and EM told her that R’s policy had a second appeal hearing if required. In fact, EM was erroneously basing her comments on her understanding of R’s complaints procedure for the company’s care clients / their families. EM did not provide C with a copy of that or any other procedure. C suggested that LCD’s policy was the relevant one, not R’s. To this EM replied: “GT will respond to this she is the expert I’m just conducting the appeal meeting”.[86]A Disciplinary and Grievance Policy was included in the Tribunal bundle bearing the LCD logo. It was not introduced into evidence. R’s Disciplinary Procedure was briefly referred to in EM’s evidence. It said, “although this procedure is primarily aimed at misconduct, it will also be applied to cases of poor performance and capability.” With respect to appeal process, it envisaged one tier of appeal only.[87]At some stage after the meeting, EM identified that she did not have in mind the correct procedure when she had referred to a second hearing. She realised or was advised that no second tier of appeal was envisaged by R’s Disciplinary Procedure. EM decided not to offer a second appeal meeting. She did not explain to C this change of position or the reasons for it. Instead, on 18 June 2025, EM prepared a letter responding to C. It confirmed that only one of C’s corrections to the minutes of 29 April was accepted and the others were refused. EM gave an instruction for the letter to be sent but it was not sent by R and so was not received by C at the material time.[88]However, on 19 June 2025, GT (not EM) sent C a different letter which C did receive. GT was the signatory. GT wrote: “Further to the appeal meeting held on the 6th of June 2025 I'm writing to confirm my decision. It is my conclusion, therefore, that the original decision to dismiss you on the grounds of capability owing to ill health was the correct one. The evidence you submitted after that decision was taken does not, in my opinion alter the validity of that decision. My own decision, therefore, is that I am unable to uphold your appeal and that your dismissal stands. … This decision ends the Company's appeal process and wish you well in the future.” C’s circumstances post-dismissal (from 11 May 2025)[89]Since the dismissal, C has been unfit for work. She has not sought any other work post dismissal. Observations on the evidence[90]There was relatively little of materiality in dispute between the parties. On the whole, I found that C sought to give honest evidence and did not intend to mislead the Tribunal but with the passage of time and with the emotion attached to the events, there were weaknesses in her grasp of the chronology. Some of C’s recollection as to the timeline and as to the specific details of discussions or correspondence was lacking. C also seemed reluctant at times to give a direct response to questions.[91]Of R’s witnesses, EM and LM gave their evidence in a candid and straightforward way which was not self-serving. If they could not recall or didn’t know an answer to a question, they said so. GT was R’s principal witness. For the most part, her evidence of the sequence was uncontroversial. There were, however, a couple of areas of dispute in relation to which I regret to say I found GT’s evidence to be unconvincing, as explained below.[92]One such conflict was that C maintained that she handed in her fit notes in a timely fashion to R’s office but that R on more than one occasion asked for fit notes to cover periods she had already provided and appeared to have misplaced the originals. C said this led her, more than once, to obtain duplicate fit notes for R. GT said she was constantly chasing fit notes from C and that she was beginning to give up on writing to C about it. She alleged that at the 10 September 24 meeting, C had handed over fit notes but that at the end of the meeting she had bundled them up and accidentally taken them away again. C disputed this. C put to GT that she had handed the fit notes to LM at the meeting which GT accepted. C put to GT that she would have to have leaned across a four-foot-wide table to have retrieved them from LM and that she could not have done this accidentally. GT disagreed.[93]I preferred C’s account of both this particular instance and of the situation regarding the provision of her fit notes generally. LM’s typewritten note of the meeting recorded that C had handed LM the sicknotes for the period to 1 October. Had C taken them away with her, one might expect that LM would also have recorded this in the meeting note or, shortly after the meeting, have sent a follow up email to C pointing out the mistake and asking for their return. Had GT noticed C taking the fit notes away with her, one might expect that GT would have pointed this out and asked C not to take the fit notes but to leave them with LM. LM was asked about C taking the fit notes away with her and LM replied no, she didn’t remember that happening. LM said she didn’t know what had happened to the fit notes. GT’s account was not supported by the contemporaneous documentation and was contrary to the evidence of both LM and C.[94]With respect to other alleged missing fit notes, I accepted on balance that C had handed these in and R had mislaid them on a number of occasions. There were fit notes marked “Duplicate” in the bundle which lent credence to C’s account that she had required to obtain second copies of certain fit notes from her GP. There was contemporaneous documentation from C in the bundle complaining at the time about the apparent loss of her fit notes. Though GT insisted that C had omitted to hand these certificates in, she was not best placed to speak to the matter since C’s account was not that she handed these to GT but that she handed them in at R’s front desk. GT could not exclude that these certificates were received by a member of staff but misplaced without GT’s involvement or knowledge.[95]Another contentious matter was an allegation by GT that she told C ‘numerous times’ that, if C were to return to work, she could work from a ground floor office. C disputed this and disputed that she was even aware that there was a ground floor office available in R’s Stranraer premises. C asked GT when she was told this, GT said ‘it would have been during a telephone conversation’. C put to GT that she had only ever had one telephone call with GT on 24 September 2024. GT then said that (unnamed) admin workers had called on her behalf. C put to GT once more that GT had never talked to her about ground floor access, and GT’s response on this occasion was that C had never raised a mobility issue. I preferred C’s account. There were internal inconsistencies within GT’s evidence. None of the notes of the welfare meetings recorded that GT had made any suggestion about C being able to use ground floor accommodation in the event of a return. Further, GT agreed that when C had complained about the stairs, her response had been to say words along the lines that it was GT’s work out for the day. There was no evidence that GT arranged subsequent welfare meetings from ground floor accommodation. One might have expected that, had GT offered to accommodate C by providing ground floor office accommodation on C’s return, she would have done so. Relevant law Unfair dismissal
Relevant law
[96]Section 94 of ERA provides that an employee has the right not to be unfairly dismissed. It is for the employer to show the reason or the principal reason (if more than one) for the dismissal (s98(1)(a) ERA). The employer may either show that it is one of the prescribed reasons falling within subsection (2) of section 98 or that it is ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position with the employee held’ (referred to as an ‘SOSR reason’) (s.98(1)(b)). At this stage, the burden on the respondent is not a heavy one. A “reason for dismissal” has been described as a “set of facts known to the employer or it may be of beliefs held by him which cause him to dismiss the employee.” (Abernethy v Mott Hay and Anderson [1974] ICR 323).[97]The text of section 98, so far as relevant, is as follows: Section 98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, …(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and …(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[98]There has been helpful guidance from the EAT on the application of the legislation in cases involving dismissal because of ill health. In Spencer v Paragon Wallpapers Limited [1976] IRLR 373, the EAT said: “Every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?”[99]In the case of East Lindsey District Council v Daubney [1977] ICR 566, the EAT has stated that: “Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill-health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done.”[100]In Liverpool AHA (Teaching) Central & Southern District v Edwards [1978] CLY 1130, the EAT stated: “We do not think that an employer, faced with a medical opinion, unless it is plainly erroneous as to the facts in some way, or plainly contains an indication that no proper examination of any sort has taken place, is required to evaluate it as a layman in terms of medical expertise”.[101]St John of God (Care services) v Brooks [1992] IRLR 546 is a case concerned not with a capability dismissal but with a reorganisation which entailed offering staff new contracts following cuts. A relevant principle which it confirms, however, is that whether a dismissal is fair or unfair is to be judged at the time of the dismissal in light of the situation at that time as opposed to the situation at an earlier stage or stages.[102]The ACAS Code of Practice on Disciplinary and Grievance Procedures does not apply to capability ill health dismissals. That Code envisages a right of appeal as a basic element of fairness. In a case involving alleged misconduct (the overclaiming of overtime), the Employment Appeal Tribunal considered the question of fairness where it was asserted for the employee that the finding of a fair dismissal should be overturned because the appeal manager had been so closely involved with the earlier stages of the disciplinary process (Byrne v BOC Ltd [1992] IRLR 505). The EAT agreed; it substituted a finding of unfair dismissal on the basis that the Tribunal had erred in finding that the manager who heard the appeal was not rendered unfit to do so by his involvement at earlier stages of the disciplinary process. Breach of contract[103]The Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 SI 1624 (the 1994 Order) extended the jurisdiction of employment tribunals to enable proceedings to be brought in the tribunal in respect of contract claims in certain circumstances. It is necessary that the employment has terminated (article 2) and that the claim arises or is outstanding on the termination of the employment (article 3 (c)). Proceedings may be brought by an employee for the recovery of damages or any other sum. Certain claims are excluded including a claim for damages or any other sum for personal injury (article 4 and article 5). Unauthorised deductions from wages[104]Under the section 13 of ERA, a worker has the right not to suffer unauthorised deductions from his wages. 13 Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. … 105. ‘Wages’ are defined in section 27 which provides, so far as relevant: 27 Meaning of “wages” etc. (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including— (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise, …[105]Under section 23 of ERA, a worker may complain to an employment tribunal that an employer has made a deduction from his wages in contravention of section 13. Where a tribunal finds such a complaint well founded, it shall make a declaration to that effect and order the employer to pay the amount of the deduction (section 24 ERA). Submissions[106]Mr Muirhead gave an oral submission. C declined to give a submission. The entire content of Mr Muirhead’s submission and the points and arguments made by C during her evidence and implicit in her cross examination of R’s witnesses have been carefully considered and taken into account in making the decision in this judgment. Failure to mention any part of the submissions and arguments in the judgment does not reflect a lack of consideration. The submissions are addressed in the ‘Discussion and Decision’ section below, in which I set out where they are accepted, where they are not, and the reasons for this. Discussion and decision Breach of contract[107]C claims that R breached her contract by declining to allow her to work from home or by declining to confirm that, on her return to work, R would permit her to work from home. The first question arising in the breach of contract complaint is whether or not it was a term of C’s contract with LCD that she was entitled to work from home. If such a term existed in C’s contract with LCD, it is not in dispute that such a term would bind R after the transfer in November 2023 by operation of Regulation 4 of TUPE.[108]There is a general rule that the express terms of the contract have a primacy over implied terms. The express terms may be written or oral. The precise nature of C’s rights and LCD’s obligations when it comes to the question of her place of work is not wholly straightforward. It is complicated by a stubborn propensity of LCD to issue defective employment documentation which fails to correctly express the agreement between it and C. The paper trail is incomplete and many of the documents which were prepared contained fundamental errors. The consequences were substantially aggravated by a later TUPE transfer. As can arise in situations where there is a change of employer, the local corporate knowledge and recollections of LCD’s managers and Directors was ‘lost’ when the transfer occurred and the errorridden paper trail assumed greater prominence as, along with the inadequate ELI provided, R’s only record of the (apparent) contractual terms. The ELI doubtless reflected and perpetuated the errors in the earlier documents.[109]The contract between C and LCD was made in August 2015. At that time, there is no dispute that there was (a verbal) agreement between the parties that C’s normal place of work would be and was LCD’s Stranraer Office. The 2015 Offer Letter and the 2015 Statement wrongly referred to the normal place of work being in Dumfries. It was a patent mistake and the reference to the Dumfries office was inappropriate and unintended. Neither document was signed by C (for this reason). Notwithstanding the terms of the 2015 documents, C’s de facto place of work was LCD’s Stranraer office. LCD knew this and raised no issue with it. The de facto arrangement was also that C required to travel to other locations (the Care Sites).[110]From February 2016, C agreed with LCD that she would carry out the work she previously did at LCD’s Stranraer office from her home. Unfortunately, the agreement was not documented at the time in the manner envisaged by section 4 of ERA which obliges an employer to give an employee a written statement containing particulars of a change to the employee’s place of work. However, C did begin to work from home in accordance with the verbal agreement and LCD knew this. The change was prompted by LCD’s decision to close their Stranraer office.[111]At this stage, the original contract formed in 2015 had been varied with respect to C’s place of work and it was implicit that the change was a permanent one. At the time, there was no alternative; there was no LCD Stranraer office where C could be based. There was no talk at the point of variation of LCD potentially acquiring another office. LCD made no verbal qualification to limit the arrangement to a temporary period or to make it conditional upon a particular event or continued state of affairs (like the lack of a local Stranraer office). A Change of Details form dated December 2016 which was signed by LCD expressly described C as a ‘permanent homeworker’ who required an allowance towards her costs. I am satisfied on balance that as at this time, a permanent variation was made to the contract. This is also consistent with the de facto actings of the parties in the awake of the agreement in February 2016.[112]I find it is further established that there was a contractual agreement between the parties from February 2026 that LCD would pay C a monthly WFH allowance towards her costs which, at the time, was agreed to be £36.33 per month. There was no discussion when the agreement was made about whether this allowance would be payable when C was off sick. I do not find that there was any implied agreement when the WFH allowance was put in place that it would be payable during absence.[113]Did anything change as far as the contractual terms are concerned between the 2016 contract variation and the TUPE transfer in November 2023?[114]LCD issued further documentation in 2017 and 2018. Neither the 2017 Statement nor the 2018 Statement accurately reflected the terms which had been agreed and which were being operated in practice at the material times. Both Statements contained patent mistakes in identifying C’s normal place of work as Rowallan (one of the Care Sites). As was known by LCD’s management, this was not C’s normal place of work and indeed this site lacked the accommodation for C to work from an office base there. LCD did not correct these documents when C declined to sign them. Notwithstanding the defective expression of the agreement in this latest documentation, nothing had changed. Both parties continued to act consistently with the agreed variation which had been in place from February 2016.[115]In its Grounds of Resistance, R asserts an argument that C did not have entitlement to work permanently from home. This is said by R to have been a temporary arrangement only resulting from LCD’s lack of office space in Stranraer. R said that it followed that, once suitable office space existed, C would be required to carry out her duties from the Stranraer office. Mr Muirhead did not advance this argument in his submissions but I deal with it here in the interests of completeness.[116]At the time when the variation to C’s normal place of work was agreed in February 2016, there was no discussion of any caveat and that the arrangement would be temporary. This notion is contradicted by the 2016 Form which described C as a ‘permanent homeworker’. Further down the line, in 2018, LCD considered opening office premises in Stranraer again and discussed this with C. This discussion did not include any express verbal agreement between C and LCD that she would return to office working if a new Stranraer officer were opened. Nor is it possible to properly infer an implied agreement to that effect from the discussions which took place. Perhaps the highest evidence for the contention in R’s Grounds of Resistance is KR’s letter of 20 June 2018. I considered its terms carefully to assess whether it evidenced a further variation in C’s contractual terms with respect to her place of work.[117]The terms of the letter suggest it was prompted by an increase in C’s hours as opposed to LCD’s proposal to take office space. KR referred to the increase in hours to 30 and said: “Twenty of these hours will be to provide management support to the Rowallan Service and ten hours towards the Llambwill …Service. This will initially be homebased but, as you are aware, the aim is to pursue an office base in Stranraer.” It is not established that C indicated any agreement to any mooted change from homeworking by signing the slip or otherwise. There was equally no evidence before me that C made any other, more vociferous protest at the terms of the letter.[118]There is uncertainty in the terms of the letter of 20 June 18. It doesn’t specify a clear and unambiguous variation that C will cease to work principally from home and will be required to return to office working in the event a Stranraer office is opened. I accept the wording carries an implication that this may be what KR was proposing. This correspondence introduces some confusion about the intended permanence or otherwise of C’s WFH entitlement from LCD’s perspective at that stage in time. With that said, it is not established that C expressly consented to a proposed change to that effect. I do not find in the circumstances of this case that her lack of objection or protest (beyond her omission to sign the acceptance slip) amounted to an acceptance of KR’s proposal through acquiescence. The effects of KR’s rather vaguely expressed proposal were neither clear nor immediate for C. It would be unrealistic to expect C to object more stridently when LCD was at the stage of only contemplating opening a new Stranraer office. Whether and when that might materialise was not made clear and nor were the precise implications for C’s contractual terms. Arguments for variation by acquiescence are to be treated with caution when a proposed variation does not have immediate effects (Solectron Scotland Limited v Roper and Others [2004] IRLR 4; Jones v Associated Tunnelling Co Ltd [1981] IRLR 477, EAT (obiter)).[119]On balance, I do not accept that the letter of 20 June 2018, or the discussions between C and LCD which preceded it, introduced a further agreed variation of the contract to the effect that, if a Stranraer office were opened, it would become C’s normal place of work.[120]The subsequent actings of the parties are consistent with that analysis. As a matter of fact, when a new Stranraer office was opened by LCD in 2019, this did not alter C’s WFH arrangement nor did it affect the payment by LCD of her WFH allowance. (This ceased to be paid for a period but KR later corrected this and acknowledged the cessation had been an error). Nothing happened thereafter in the period before the TUPE transfer that might be said to have varied the terms of the contract with respect to C’s place of work. I conclude, therefore that, when C transferred to R’s employment in November 2023, she was contractually entitled to work from home and to be paid a WFH allowance, by then of £52.33 per month.[121]It was not argued by R in submissions (or in the Grounds of Resistance) that the ‘mobility clause’ in the 2017 Statement and the 2018 Statement which, after erroneously specifying C’s normal place of work, said that C may also be asked to work at other locations within reasonable travelling distance on a temporary or permanent basis has a bearing upon the issue of C’s entitlement or otherwise to work from home. These documents contained fundamental errors in the place of work clause which led to C declining to sign them. In the absence of any argument being advanced by R that the mobility clause was a binding contractual term, I make no finding to that effect.[122]On the question of the WFH allowance, I do not find that the contractual entitlement to the WFH allowance extended to periods when C was off sick. There was no evidence of any express verbal or written agreement between C and LCD to that effect. Nor am I persuaded that such an agreement can be implied from the mere fact that C was off sick for one week in February 2022 and that on that occasion LCD made no deduction from C’s monthly WFH allowance. It is not necessary to imply such a term to explain LCD’s conduct in making the full payment on that occasion or to give business efficacy to the arrangement between the parties. The decision to pay the full monthly figure could be explicable by an exercise of discretion for administrative ease on LCD’s part as much as by reference to a contractual obligation.[123]There is no dispute in this case that, if there was a breach (which R denies) then it was outstanding on the termination of C’s employment. R made no argument that C’s breach of contract was excluded from the Tribunal’s jurisdiction by article 5 of the 1994 Order. Nevertheless, since it goes to the jurisdiction of this Tribunal, I considered whether C’s complaint is a claim for damages in respect of personal injury. I concluded that is not. C does not say that R’s asserted breach of her contract caused her personal injury between mid-June 2024 and May 2025. Her case is, rather, that her health during that period was such that she was unfit to work in R’s office but was sufficiently fit to undertake her duties from home. I do not understand her to say that R’s breach of contract caused her injury or illness but that it caused her economic loss by way of lost salary and WFH allowance.[124]I turn to whether R breached C’s contractual entitlement.[125]Consistent with my conclusion that C had no contractual entitlement to be paid WFH allowance while off sick, I find that R did not breach a contractual entitlement to this allowance during sickness absence by omitting to pay it.[126]As to the term that C’s ‘normal’ place of work was her home, the position is less straightforward. There was no ‘actual’ breach by R of this term. C was certified unfit to return to work throughout the whole of the period in respect of which she makes the claim (June 24 to May 25). At no stage during that period had her GP certified she may be fit to work if working from home was accommodated (as the fit note form provides the option to do) and at no time did C present for work to R or tell R that she was sufficiently well to resume her duties on a WFH basis.[127]I acknowledge that, absent an ‘actual’ breach, there remains scope that a socalled ‘anticipatory’ breach of contract can arise. This occurs when a party unequivocally indicates by words or conduct an intention not to perform the contract. The matter is to be assessed objectively, and anticipatory breach is a form of material breach. It is unnecessary, however, on the facts of this case to decide whether, by its actings, R evinced an intention to refuse further performance of the contract.[128]Mr Muirhead’s resisted C’s breach of contract claim on the basis that he said C was never fit to return even on a WFH basis. I agree. The difficulty for C’s breach of contract case is that, even if there was an anticipatory breach by R in declining to confirm C would be permitted to work from home on her return, C suffered no economic loss in consequence of it. C suggested to the Tribunal during the preliminaries that she would have been fit to work for the period from June 24 to May 25 if GT had indicated homeworking had been available. C later suggested in her evidence that she may not have been able to work throughout that period but would have been fit to work at least some days during that time. However, the evidence for either proposition is weak. It is contradicted by C’s GP fit notes. C was unable to specify or quantify the days when she says her health would have allowed her to undertake work from home. As well as her fit notes, the content of the OH report of 26 March 2025 did not support her contention that she was fit to resume work. It is not established on the evidence before me that C’s absence from May ’24 to June ’25 or any part of it was caused by R’s putative anticipatory breach of contract in evincing an intention not to allow homeworking when C returned. I am not persuaded that C would have been fit to work either continuously or intermittently throughout this period if GT had confirmed R would accommodate homeworking.[129]As no damages flow from any prospective anticipatory breach, C’s breach of contract claim pursuant to the 1994 Order cannot succeed. Unauthorised deductions from wages[130]It is not established that C had a contractual or any other legal entitlement to be paid full salary and WFH allowance during sickness absence. C did not, during the hearing, advance any basis for an entitlement to salary (as opposed to the sick pay which she received) while unfit for work other than the claim that loss of salary amounted to damages flowing from R’s refusal to permit homeworking. That argument has been found not to succeed for the reasons set out above. C appeared to suggest in her correspondence with R that she ought to have been in receipt of WFH allowance irrespective of her fitness to work. Again, this contention has been found unmeritorious for the reasons set out in the ‘Breach of Contract’ discussion.[131]In the absence of any established entitlement to be paid the sums for the period from June 24 to May 25 which C claims were unlawfully deducted, her complaint under Part II of ERA does not succeed and is dismissed. Unfair dismissal[132]I begin by deciding the reason or principal reason for dismissing C. Mr Muirhead invited me to accept that R had shown its reason for dismissal was the potentially fair reason of capability. GT stated in the dismissal letter that it was not feasible to cover C’s duties with temporary staff or overtime in circumstances where C was prevented by illness from returning to work with no indication of when a return may be likely. C had been absent for almost a year and a half and R continued to run the services at the Care Sites and to have a requirement for the management of these. GT’s evidence to the Tribunal about her reasons for dismissing was along similar lines. C did not challenge the reason given by GT for dismissing her. I accept on balance that this was the genuine reason for GT’s decision to terminate employment and, further that this was a reason related to C’s capability for performing work of the kind she was employed to do for the purposes of section 98(2)(a) of ERA.[133]I turn, therefore, to the question of whether R acted reasonably in dismissing C for that reason. Mr Muirhead argued that R sought medical opinion and consulted with C. I find that R indeed established the medical position and consulted with C before deciding to dismiss. C did not dispute the accuracy of the medical prognosis and opinion offered by the OH Doctor.[134]I considered whether R followed a reasonable process. C criticised R over the delays in referring C to an OH Advisor. She had reason to do so. The period of delay between C first agreeing to an OH referral on 7 June 2024 and the OH appointment taking place on 20 March 2025 was extraordinary. While GT referred to difficulties in sourcing a local provider and difficulties caused by information being ‘lost’ in the OH company’s portal, 8 months remains a troublingly lengthy wait. This is particularly so given there appeared to be no reason why the OH provider had to be local; the appointment could be - and ultimately was - carried out remotely. C’s frustration was doubtless exacerbated by R’s repeated requests for C’s consent to the referral in circumstances where such consent had already been provided.[135]With all of that said, I remind myself that the fairness of the dismissal is to be judged at the time of the dismissal being notified in light of the situation at the time when it occurs as opposed to at an earlier stage (St John of God (Care Services) v Brooks). Notwithstanding the delay in obtaining the OH report, by the time of the dismissal, the report had been secured and provided the position from a few weeks before the dismissal decision. It is also fair to reflect that C could have permitted contact with her GP to expedite the obtaining of medical evidence but declined to do so. I conclude that the delay in obtaining a medical opinion, though regrettable, did not tarnish the fairness of the dismissal decision, focusing - as I must - on the circumstances at that time.[136]C also raised concerns over R’s propensity to ask for fit notes to cover periods when these had already been provided. She denounces what she infers is R’s lack of a suitably robust system for storing sensitive documentation. I have found that, as a matter, of fact, C provided fit notes in a timely fashion but that on a number of occasions R was unable to locate the fit notes provided and requested duplicates. This influenced the course the process followed because C’s decision to refuse consent for R to contact her GP was at least in part caused by her concerns about R’s ability to retain safely her medical documentation. I also accept that the persistent problems with the fit notes caused C exasperation and upset and that this contributed to the deterioration in her relationship with R as her absence progressed. However, ultimately this is not a case where C says R mislaid a vital fit note which would have materially changed its understanding of C’s medical situation or prognosis. Both parties accepted that, at the time of dismissal, all fit notes had signed C off work with ‘haematuria’ or ‘haematuria and lethargy’. At the time of the dismissal, R had medical information from Latus which was not inconsistent with the fit notes but provided a far more detailed picture of C’s health. Assessing the fairness of the dismissal at the time the decision to dismiss was made, I am satisfied that R’s earlier administrative weaknesses in handling C’s fit notes did not undermine its understanding of the medical position or prejudice C in relation to the decision to dismiss. While I agree that R’s document retention processes were inadequate, this did not ultimately render the decision to dismiss objectively unreasonable.[137]An issue which loomed large in C’s correspondence and welfare meetings with R was the matter of her entitlement to WFH and to WFH allowance. I carefully considered whether this prominent backdrop to the capability meeting and dismissal decision at the end of April 2025 undermined the reasonableness of the decision to dismiss C on capability grounds. For the purposes of the breach of contract claim, it has proved unnecessary to decide whether R was in anticipatory breach of contract because C suffered no damages in consequences. For present purposes, I proceed for argument’s sake on the assumption favourable to C that GT’s conduct indeed evinced an intention not to observe the contractual term with respect to C’s normal place of work in the event of C’s return (without making a finding to that effect).[138]The state of affairs plainly led to a deterioration in the relationship between the parties, particularly in the period from September 2024. The issue remained unresolved at the time the decision to dismiss was taken. While recognising the upset and distress this caused C, it is also important to acknowledge that this issue did not cause the illness which led to C’s absence. C’s haematuria and other symptoms of her latterly diagnosed kidney condition had left her unfit for work many months before she had any inkling that there was doubt over whether R would permit homeworking. There was no medical evidence which posited the homeworking issue as a cause or contributory factor in C’s continued ill health and prognosis. (Even if it had done so, that would not necessarily preclude a fair dismissal (McAdie v Royal Bank of Scotland [2007] IRLR 895)). Nor did that evidence indicate that the accommodation of homeworking would have permitted or made more likely a return. Indeed, that scenario was explicitly addressed and excluded by the OH doctor.[139]Objectively, taking all the circumstances into account, I find that the reasonableness of GT’s decision to dismiss on ill health grounds was not marred by R’s ongoing equivocation in relation to the WFH question. This finding would remain even assuming R’s conduct in this respect amounted to an anticipatory breach of contract. I make no endorsement of R’s approach to the matter. However, I have taken into consideration the GP and OH evidence at the time of the meeting in late April 2025 as well as C’s own lack of any concrete suggestion at that time that, with WFH she was fit, or foresaw being fit to return in any particular timeframe.[140]GT claimed to have told C that she could work in ground floor office space in the event of a return to work. C denied this was said and I have resolved this factual dispute in C’s favour. I consider whether GT’s omission to discuss this option with C prior to dismissing her on capability grounds eroded the reasonableness of the dismissal. The facts as known to R at the time were that C had been continuously certified unfit for work for some 15 months with no suggestion in any fit note that C might be fit for work with any adjustment. C herself had not, when discussing her health with R, given any express suggestion that her mobility was a barrier to an otherwise viable return to work. C had certainly complained about the stairs when attending a meeting, but had given no hint that her fitness to work could be within reach were this to be addressed. R also had the OH report when the decision to dismiss was taken which explicitly recorded that C didn’t think she would be fit to return even with what were described by Dr N as ‘maximal’ adjustments. The report recorded that C’s concerns related to managing pain when using a computer and managing fatigue at work. There was no reason for GT to entertain a belief that C might be fit to return if she offered C a working space with ground floor access. In the circumstances, I am satisfied that GT’s omission to moot the possibility of a ground floor workspace did not render the dismissal or process objectively unreasonable.[141]C cross examined GT on the matter of how her email of 4 December 2024 headed ‘Grievance’ was handled by GT. C put it to GT that she had made a complaint. GT declined to accept this and accepted only that C ‘was going to’ do so. GT’s insistence that C repeat the same information which she had set out in writing in order to deal with it under the grievance procedure (or at all) was strange and not in line with good HR practice. GT’s explanation that she was waiting for C to put in writing (for a second time) matters already set out in writing is a thin one. The question for the Tribunal, however, is whether the omission to investigate and respond to C’s complaints in December 2024 undermined the reasonableness of the dismissal decided upon on 29 April 2025. I conclude that, poor as R’s approach was, it did not do so. The subject matter of the grievance was not C’s ill health or a dispute over her capability to perform the role. Nor was it an assertion of fitness to perform the role with WFH or any other adjustments. I allow that GT’s lack of engagement with C’s December could, in another type of complaint, be argued to have amounted to or contributed to a breach of R’s implied contractual obligations. Even if did so, it is not established on the facts that it compromised the objective fairness of C’s dismissal on capability grounds.[142]Many of the above issues raised by C are of a kind which might commonly be litigated in the context of a complaint of constructive unfair dismissal. However, that is not the nature of the claim I am charged with deciding. C did not resign in response to the matters she raises but was dismissed by R. The focus of the judgment at this stage has, therefore, been on whether R acted reasonably in treating C’s ill-health incapability as a sufficient reason for dismissing her based on the circumstances at the material time.[143]I considered whether R could reasonably be expected to wait longer before dismissing C and, if so, how much longer. I took into account all of the circumstances as they were at the time GT took er decision on 29 April 25. C had been off work for almost 18 months. She had exhausted her entitlements to occupational sick pay and SSP. R’s requirements for the duties of C’s role to be performed continued. It was a relatively small employer with only around 83 members of staff. GT took the view that continuing to cover C’s duties either by temporary staff or through overtime was not feasible. Although C suggested there was some improvement in her symptoms at the meeting on 29 April 2025 since the appointment on 20 March, she did not suggest that she felt fit to return to work or that there had been any material change in the prognosis. As recently as two weeks before, on 15th April, the scheduled capability meeting had been cancelled because C dd not feel fit to attend it. On 29 April, far from expressing optimism about a return in early course, she suggested that she felt a return to work may not be viable because of a legal dispute which she envisaged litigating.[144]Viewing the circumstances in the round, I am satisfied that GT’s response of deciding not to wait longer for possible improvement and a possible future return to work fell within the range of reasonable responses open to her. Notwithstanding the improvement in symptoms to which C referred at the meeting, in the whole context, there was no real indication that a return to work was a realistic prospect in the foreseeable future.[145]R offered the opportunity of an appeal. There were serious irregularities in the way in which the appeal proceeded. At no stage had C been advised that there was a written procedure which governed the process and she was not referred to R’s Disciplinary policy in the context of the meeting on 29 April either in the invite, during the meeting, or in the subsequent dismissal letter which indicated the right of appeal. At the appeal itself, EM had a procedure in mind when she told C there would be a second appeal hearing though it was not the appropriate procedure. In any event, EM did not supply C with a copy of that procedure (the complaints procedure). She led C to believe that there would be a further appeal hearing then reneged on this without explanation. EM’s subsequent letter was not issued but instead, GT, who made the original decision to dismiss, sent a letter with an adverse appeal outcome which GT said very plainly was her own decision. This was not a question of GT ‘pping’ a letter prepared by EM. The appeal process, therefore, included a number of defects which were not trifling but were substantial matters. In many cases, such flaws might well be sufficient to convert what would otherwise have been a fair dismissal process into an unfair one. In particular, GT’s surprising decision to involve herself in the appeal and to decide its fate might readily undermine the fairness of a dismissal in other circumstances.[146]However, each case turns on its own facts. This was not a misconduct dismissal but an ill-health one. Very unusually, C’s ‘appeal grounds’ were not grounds for challenging the fairness or correctness of GT’s dismissal decision but were no more than a series of amendments she wished to see to the minutes of the meeting on 29 April. The amendments she sought were not in the nature of substantive points such as arguments against dismissal she was claiming to have made at the meeting or information she claimed to have given about her health situation which might bear upon the fairness / appropriateness of the dismissal. Nor did C seek to advance any such arguments / information at the appeal meeting itself. Even before EM suggested to her that there may be a second appeal hearing, C did not do so. Ultimately, as EM had not been present at the meeting on 29 April, only GT and LM were in a position to identify whether C’s minute amendments reflected their recollections and were capable of agreement. In the particular and unusual circumstances of this case, I conclude that the procedural mishandling of the ‘appeal’ did not render the whole dismissal process unfair. Though it was labelled an appeal, in substance it was truly a complaint about the accuracy of meeting minutes.[147]If I am wrong in my conclusion in relation to the issues with R’s ‘appeal’, I record that I would in any event have found that there was a 100% chance that C would have been fairly dismissed anyway if a fair process (a fair appeal process) had been followed. There was no evidence to suggest that if the appeal had been handled differently the dismissal would have been overturned. On the contrary, C’s poor health has unfortunately persisted since the termination of her employment, and she has been unfit to seek or undertake work. Therefore, I would have found that any compensatory award in the event of an unfair dismissal would have been reduced to zero applying the principle in Polkey v AE Dayton Services Ltd [1987] IRLR 503.[148]The complaint of unfair dismissal is not well founded and is dismissed.