Judgment on Unfair Dismissal Claim: Claimant vs. Respondent, Study notes of Law

Download Judgment on Unfair Dismissal Claim: Claimant vs. Respondent and more Study notes Law in PDF only on Docsity! Case number: 1806682/2021 1 EMPLOYMENT TRIBUNALS Claimant Mrs K Lister Respondent Done Brothers LTD Heard at Leeds Employment Tribunal by CVP On: 11 April 2022. Before Employment Judge Othen (sitting alone) Representation Claimant In person Respondent Mr Cater (Consultant) JUDGMENT ON LIABILITY The Claimant's claim of unfair dismissal fails and is dismissed. REASONS Introduction 1. The Claimant, was employed from 22 November 2016, latterly as an Area Operations Assistant, until she resigned with immediate effect on 10 November 2021. 2. The Claimant claims that she was (constructively) dismissed in accordance with Section 95(1)(c) of the Employment Rights Act 1996. 3. The Respondent contests the claim. It says that the Claimant resigned. 4. The Claimant represented herself at the hearing and gave sworn evidence. The Respondent was represented by Mr Cater, a consultant, who called sworn evidence from Craig Sykes (“CS”) and Laurence Farley (“LF”) (both Regional Managers). I considered the documents from an agreed, 79-page Bundle of Documents which the parties introduced in evidence. Case number: 1806682/2021 2 Issues for the Tribunal to decide 5. At the outset of the case, I took some time to discuss the issues with the parties and to understand the Claimant's case. She explained that she had taken some preliminary advice from ACAS and was aware of the general principles of a case of constructive unfair dismissal. 6. After some discussion, the Claimant confirmed that the alleged breaches of her contract of employment, in response to which she resigned on 10 November 2021, were as follows: 6.1 A change in her work location on or around 27th September 2021; 6.2 A failure to fairly or reasonably consult with her about the change in her work location; and/or 6.3 A delay in dealing with the written grievance that she submitted on 19 October 2021. 6.4 The Claimant was unable to explain why she resigned on 10 November 2021 in particular, saying that no action taken by the Respondent on that day had triggered it but rather, the stress of the above alleged breaches, all taken as a whole. Findings of Fact 7. The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed Bundle of Documents. 8. The Respondent is a bookmaker which owns and runs shops in the United Kingdom, trading under the name of Betfred. The Claimant, who lives in Pontefract, was employed from 22nd of November 2016. She first worked in shop management, then as a Group Sales Manager, before becoming Area Operations Assistant (AOA) in January 2020. 9. The Claimant’s general duties included doing audits and conducting disciplinary and grievance hearings, within the Respondent’s various shops. 10. Neither the Claimant nor Respondent was able to produce a contract of employment for the Claimant and the Respondent explained that although this was likely to exist, it had been unable to locate one for the purposes of this hearing. 11. A letter dated the 13th of January 2020, which was signed by the Claimant, defined her appointment as AOA. With effect from 27th of January 2020. it stated that her place of work: 11.1 “will be any of the company’s sites” (78) Case number: 1806682/2021 5 27. On 17th of August 2021, CS telephoned the Claimant to inform her of his decision. A final note of this conversation records it as follows 27.1 “I recently held an individual consultation meeting with yourself as you were potentially affected by the changes. During this process I have listened to your concerns, considered individual travel required from your home address, and considered that there are 6 AOAs within the Eastern Region and six areas. My main priority within this process has been to ensure that we can keep colleagues employed and avoid redundancies where possible. I believe that given some reasonable adjustments and reasonable travelling time, this is possible due to the available positions within the East Region”(50). 28. A letter was sent to the Claimant on the same day to confirm this conversation and its outcome. The Claimant was therefore informed that her new position: 28.1 “..will be AOA in E5 under the management of Damian Glossop from Monday 27th of September” (57). 29. When challenged in cross examination about the reasons for stopping consultation and imposing this decision on the Claimant, CS explain that he didn't think there was anything in the evidence that he had regarding Ashley or the Claimant which meant that either of them could not be moved to E5. Both employees wanted E6. He considered their experience, the impact on both employees and the reasons that they gave for their choice, which, in both cases was familiarity with the relevant shops. There were two reasons why he decided to allocate Ashley to E6: 29.1 that area was managed by David Milnes, who was her current Area Manager, thereby keeping that management team together, and 29.2 that the Claimant had marginally more E5 shops that were closer to her home than did Ashley. 30. As such, CS did not feel there was any further need for redundancy consultation once the decision was taken. He explained that he considered the decision was reasonable based on all the evidence before him. 31. The Claimant didn't want to accept this decision. When questioned by me about her reasons for this, she explained that she had worked in the area now represented by E6 for the past five years; that she knew the shops, knew the staff and had done a good job. Working in E5 would mean starting over again with new staff and shops which she did not want to do. 32. She also felt aggrieved that the decision to give Ashley the E6 area had been predetermined and that consultation had not continued and had not been fair. 33. Once the decision had been made to move her, she talked to her old regional manager, Chris Anderson, who advised her to put in a grievance. She did not put in a grievance at that time. Between 17th of August and 27th of September 2021, the Claimant looked for other roles both within the Respondent’s organisation and externally. Case number: 1806682/2021 6 34. Her move to E5 took effect on the 27th September 2021 but the Claimant was on holiday until the 8th of October 2021. On her return, she worked as AOA in E5 for approximately 10 days. She then took some advice from ACAS. 35. On 19th of October 2021 the Claimant submitted a written grievance to the Respondent (58) and went off sick. When questioned in cross examination about the delay in submitting her grievance, she explained that she intended to try and give the area of E5 a trial and that she also didn't know how to submit a grievance. 36. On 26th of October 2021, LF wrote to the Claimant inviting her to a grievance hearing. This letter summarised her grounds of grievance as being that she was bullied into moving area to E5, and that the decision to move her there was procedurally and substantively unfair (60). 37. The Claimant was on holiday for seven days at the end of October 2021. Therefore she contacted LF to inform him that she was unable to attend a hearing on the 3rd of November 2021. 38. The hearing was rescheduled for the 10th of November 2021 and took place on this day. 39. The minutes record a comprehensive discussion about why the Claimant wanted to be allocated to E6 area, that being “your area”. The area comprised 61 shops and 45 of those had previously been in the Claimants N7 area. 40. When asked how the Claimant felt as if she had been treated unfairly, she replied: 40.1 “because both Debbie and Lucinda were offered [the] same job and both got a pay-out”. 41. When questioned about this in cross examination, the Claimant agreed that this was one reason why she thought she had been treated unfairly. CS, under questioning from me explained that the two employees referred to above were in different roles to the Claimant and had received payments pursuant to genuine redundancy situations and/or under the terms of settlement agreements. Their cases were therefore not comparable. 42. After a discussion during the grievance meeting, which lasted for approximately 50 minutes, there was a short break. The meeting then reconvened and at this point, the notes record the Claimant as saying: 42.1 “I think it's best to hand in notice with immediate effect. ACAS have said I have a case for constructive dismissal. I was forced into a position I didn't want [to] run other area”. 43. LF tried to persuade the Claimant to resolve the situation via the grievance process but the Claimant refused. 44. Her resignation was confirmed by way of a short note at the conclusion of the grievance meeting which states as follows: Case number: 1806682/2021 7 44.1 “I Katie Lister would like to resign with immediate effect due to the way I have been treated. I feel I have no option but to resign. I will be contacting my solicitor and ACAS”. 45. During cross examination, the Claimant explained that she resigned at that point because she had gathered her thoughts and was unable to cope with the stress of the situation any further. She accepted that she did not know at that stage what conclusion LF would come to regarding her grievance. She was unable to explain anything that LF had done or said which prompted her to resign there and then. Relevant law Contractual Terms 46. Terms of an employment contract comprise those which are written but also implied by custom and practice1 and/or law. Contractual Flexibility Clauses 47. A contractual term regarding an employee's workplace may be subject to a specific or general flexibility clause, giving the employer a right to change this place of work without the consent of the employee. 48. Such clauses can be relied upon although certain case-law principles have developed to restrict the manner in which they are applied by employers. The leading case of United Bank v Akhtar [1989] confirmed that an employer should act reasonably in the way it seeks to rely on flexibility clauses by, for example, explaining to employees the reasons for the change in workplace and giving them reasonable notice of when the change will take effect. Constructive and Unfair Dismissal 49. Section 94 of the Employment Rights Act 1996 (ERA) confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. 50. Section 95(1)(c) ERA states that an employee is dismissed if (s)he: "terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct". 51. The above statutory test has, over the decades, been clarified and refined by cases such as Western Excavating (ECC) Ltd v Sharp [1978] from which this well-known judgment extract is taken: 51.1 "If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further 1 Bond v CAV Ltd [1983] IRLR 360