← Back to searchEmployment Tribunal
- Case Number
- 2201510/2021 and others
- Claimant
- Ms M Herve
- Respondent
- Mr A Goldstein and Mr V Sareen
- Venue
- England and Wales
- Hearing Date
- 12 November 2022
- Judge
- Employment Judge Joffe
- Claimant Representative
- Ms M Herve
- Respondent Representative
- Mr M Salter, counsel
- Compensation
- £9,429,151
- Jurisdiction
- Breach of ContractHealth & SafetyPublic Interest DisclosureUnfair DismissalUnlawful Deduction from WagesandWorking Time Regulations
Judgment
1. The claimant was employed by both the first and second respondents. 2. The first respondent subjected the claimant to detriments because she made a protected disclosure, contrary to section 47B ERA 1996, by: a. Demanding that the claimant also resign from her post with the second respondent as set out in his email of 13 November 2020 and encouraging the second respondent to terminate the claimant’s employment; b. Accusing the claimant of unprofessional conduct; malingering with respect to her sickness absence and threatening her in relation to Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021 2 causing potential damage and loss to the business in his email of 19 November 2020; c. Failing to pay the claimant wages, notice pay and holiday pay until shortly before the full merits hearing. 3. The claimant’s remaining claims that the first respondent subjected the claimant to a detriment because she made protected disclosures are not upheld and are dismissed. 4. The claims that the second respondent subjected the claimant to detriments because she made protected disclosures are not upheld and are dismissed. 5. The first respondent subjected the claimant to a detriment, contrary to section 44(1)(d) ERA 1996, because she refused to return to her place of work in circumstances of danger which she reasonably believed to be serious and imminent and which she could not reasonably have been expected to avert by: a. Being critical of the claimant’s work by referring to the quality of work being “lower” than usual; that they were
648 words remaining
Reasons
Claims and issue
1.
The issues were agreed between the parties and were as set out in the list
below. They had in some respects to be tweaked to reflect the relevant legal
tests when we came to consider our Conclusions. In addition to the liability
issues, we were asked to consider any Polkey reduction at this stage.
STATUS
Employment Status (pursuant to s. 230 Employment Rights Act 1996 – “ERA
1996”)
(First Respondent)
1. Was the Claimant engaged as an employee or worker pursuant to section
230 ERA 1996?
2. Was the Claimant so engaged by the First Respondent or by the Second
Respondent only?
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CLAIMS
Whistleblowing – s47B and/or s103A ERA 1996 (Both Respondents)
Detriment and/or Automatic Unfair Dismissal
3. The Claimant relies on protected disclosures against the First Respondent:
(a) The email dated 29 September 2020 to the First Respondent wherein the
Claimant raises health and safety concerns for her, her family and the public
at large relating to Covid-19, and not wanting to breach government
guidelines;
(b) The email dated 04 November 2020 to the First Respondent where the
Claimant once again raises the same concern;
(c) The letter of resignation to the First Respondent dated 12 November 2020
where all the above issues are raised.
4. The Claimant relies on protected disclosures against the Second
Respondent:
a) the letter of resignation dated 12 November 2020 that the Claimant sent to
the First Respondent and copied to the Second Respondent where she raised
health and safety concerns for her, her family and the public at large relating
to Covid-19, and not wanting to breach government guidelines.
5. Did the Claimant make disclosures of information, as alleged above, which
in her reasonable belief, tended to show that:
(a) a criminal offence has been committed, was being committed or was likely
to be committed to contrary to s.43B(1)(a). The Claimant considered any
breach of the government’s guidelines to be a criminal offence;
(b) a person had failed, was failing or was likely to fail to comply with any legal
obligation to which they were subject to contrary to s.43B(1)(b). The
Respondent had legal obligations and duty of care towards staff in
safeguarding their health, safety and wellbeing, of their families and by
extension members of the public by not exposing them to unnecessary risk of
harm. [The claimant did not pursue this limb]
(c) the health or safety of any individual has been, was being or was likely to
be endangered contrary to s.43B(1)(d). As stated, the Claimant considered
that her health, safety and wellbeing as well as that of her family, and public at
large was potentially being endangered. that they had failed, were failing, and
was likely to continue to fail to comply with a legal obligation to which it was
subject such as their duty of care towards staff, safeguarding employees’
health and not acting irresponsibly by subjecting them to bullying and
harassment in accordance with their obligations under the Health and Safety
at Work Act 1974 and/or the Management of Health and Safety at Work
Regulations 1999, and/or discriminating against them contrary to the Equality
Act 2010 (s.43B(1)(b)).
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6. Were these disclosures made in the public interest?
7. Were the Claimant’s disclosure made in accordance with s. 43C ERA?
8. Was the Claimant subjected to the following detriments by the First
Respondent as a result of the protected disclosures?
(a) Being pressured to attend the workplace and put herself, her family and
others at risk in September, October and November 2020 (relevant protected
disclosure is Para 3(a) above);
(b) Being critical of the Claimant’s work by referring to the quality of work
being “lower” than usual; that they were not getting the “level of support”
expected and a veiled threat in the event that she did not comply, as set out in
the email of 5 November 2020 (relevant protected disclosures are Para 3(a)
and (b) above);
(c) The actions of the First Claimant resulted in the decision to dismiss on 12
November 2020 (resignation) which constitutes a detriment relevant protected
disclosures are Para 3(a) and (b) above);
(d) Being accused of mischaracterising reality and making untrue statements
by letter dated 12 November 2020 (relevant protected disclosures are Para
3(a),
(b) and (c) above);
(e) Demanding that the Claimant also resigns from her post with the Second
Respondent as set out in his email of 13 November 2020 (relevant protected
disclosures are Para 3(a), (b) and (c) above) and/or encouraging, pressurising
and inducing the Second Respondent to terminate the Claimant’s
employment;
(f) Being accused of unprofessional conduct; malingering with respect to her
sickness absence and threatened with causing potential damage and loss to
the business in his email of 19 November 2020 (relevant protected
disclosures are Para 3(a), (b) and (c) above);
(g) Being subjected to stress and anxiety (relevant protected disclosures are
Para 3(a), (b) and (c) above); [Withdrawn by claimant as a separate head
of claim]
(h) Failing to pay her wages, notice pay and holiday pay (relevant protected
disclosures are Para 3(a), (b) and (c) above);
(i) (i) Failing to issue her with a P45 (relevant protected disclosures are Para
3(a), (b) and (c) above), prior to 17 January 2022. [Not pursued by
claimant]
9. Was the Claimant subjected to the following detriments by the Second
Respondent as a result of the protected disclosure at Para 3(a) above?
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(a) Being subjected to stress and anxiety; [Withdrawn by claimant as a
separate head of claim]
(b) Failing to pay her wages, notice pay and holiday pay;
(c) Failing to issue her with a P45. [Not pursued by claimant]
10. Are there acts of detriments committed by the First and Second
Respondents a series of continuing acts?
11. In determining whether the Claimant was automatically unfairly dismissed
by the First and Second Respondents contrary to s103A, was the reason or
principal reason for her dismissal that she had made the alleged protected
disclosure(s)?
Health & Safety - s.44 and/or s.100 ERA 1996 (Both Respondents)
Detriment and/or Automatic Unfair Dismissal
12.Did the Claimant bring to the Respondents’ attention, by reasonable
means, circumstances connected with her work which she reasonably
believed were harmful or potentially harmful to health or safety (s.44(c) and/or
s.100(c) ERA 1996)?
13. Did the Claimant ever refuse to return to her place of work? If so, was the
Claimant’s refusal to return to her place of work undertaken in circumstances
of danger which she reasonably believed to be serious and imminent and
which she could not reasonably have been expected to avert, in accordance
with s44(1A)(a) / s100(1)(d)?
14. If the Claimant did refuse to return to her place of work, was her refusal
to return to her place of work an appropriate step undertaken in
circumstances of danger which she reasonably believed to be serious and
imminent to protect herself, her family and the public from the danger in
accordance with s44(1A)(b) / s100(1)(e)?
15. Did the Claimant suffer detriments as result of carrying out the above
activities – the detriments relied on are the same as those for the
whistleblowing claims set out at Para 5 (a) – (i) above for the First
Respondent, and Para 6 (a) (c) above for the Second Respondent?
16. Was the Claimant automatically unfairly dismissed by the First and
Second Respondents as a result of the above actives (s.100 ERA 1996)?
Constructive Unfair Dismissal - ss95 - 96 Employment Rights Act 1996) -
(First Respondent only)
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
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17. Did the First Respondent act without reasonable and proper cause, act in
a manner calculated or likely to destroy or seriously damage the mutual trust
and confidence between employer and employee, in the following respects:
(a) Being pressured to attend the workplace during a lockdown, if this period
was a time of national lockdown, and/or to break the law;
(b) Being forced to attend work despite it not being essential for her to do so;
(c) Requiring her to put herself and family at risk by travelling to / from work;
(d) Being dismissive of her concerns and being treated with hostility;
(e) Feeling disrespected despite dedicated service of more than 11 years;
(f) The dismissive email of 05 November 2020.
18. Did the First Respondent’s conduct, as determined by the Tribunal,
amount to fundamental and repudiatory breach of the implied contractual term
of trust and confidence?
19. If so, did the Claimant resign in response to the alleged fundamental and
repudiatory breach/es of contract?
20. If so, did the Claimant delay too long before resigning such that she had
waived any such breach?
21. If the Claimant was constructively dismissed, was such dismissal unfair?
Unfair Dismissal – s94 Employment Right Act 1996 – (Second Respondent
only)
22. Was the Claimant’s employment terminated by the Second Respondent?
23. If so, what was the reason for the dismissal and which date did the
dismissal take effect?
24. Did the Second Respondent consider and/or offer suitable alternative
employment for the Claimant?
25. Was the Claimant’s dismissal procedurally unfair?
Findings of fact
The hearing
2.
We were provided with an electronic bundle and supplementary bundle
running to something over 800 pages.
3.
We heard evidence from the claimant on her own behalf and we also heard
from her partner, Mr R Ahmed. For the first respondent, we heard from the
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first respondent and his wife, Mrs S Goldstein. The second respondent gave
evidence on his own behalf.
The parties
4.
The first and second residents were co-founders of a financial services
company called I V Capital Limited. They were later joined in this venture by a
Mr Lipman and a Mr Mana.
5.
The claimant is a woman aged at the time of these events in her very late
forties. Her partner with whom she lives is of Bangladeshi descent and
asthmatic. Both the claimant and her partner were conscious of the risks to
the claimant’s partner due to the pandemic and Mr Ahmed lost a number of
family members and friends to covid.
6.
In May 2009, the claimant commenced work as a personal assistant to the
two respondents and Mr Mana. She worked two days a week for each of the
respondents at their homes and one day a week for Mr Mana at the I V
Capital Limited office. Her work for each of these individuals was entirely
separate although she had an employment contract with I V Capital Limited
for all of the work she was doing for the three individuals.
7.
In terms of her duties, there appear to have been changes over time, but they
included personal administration and management relating to the
respondents’ properties, household management, diary management, dealing
with bills and travel arrangements and household staff. Because the claimant
is a native French speaker and the first respondent is not, she also provided
translations of documents in French. The first respondent has a property in St
Tropez. The claimant was cross-examined at length about her description of
her duties and it may be that what she described in some instances as
‘management’ might more aptly be described as managing administration. We
did not consider anything turned on this. We did not consider that the
claimant had deliberately exaggerated the importance of her duties.
8.
In February 2012, the claimant left her employment and took up another role.
She did not like her new job and returned to work for the respondents, having
worked elsewhere for a month. There was a difference between the
respondents and the claimant as to who suggested she return. We did not
consider this to be a material dispute. Everyone involved seemed happy that
the claimant returned to work with the respondents. At this point, Mr Mana
dropped out of the arrangement and the fifth day was rotated between the two
respondents and an additional day of leave. The employer remained I V
Capital Limited and there was a written contract dated 26 March 2012.
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9.
The first respondent in his witness statement suggested that it was essentially
an arrangement between the second respondent and the claimant and that he
was to have such of the claimant’s time as the second respondent did not
require, but the contemporaneous documentation showed that the claimant
was evenly split between the two roles.
10.
In October 2014, I V Capital Limited ceased doing business. The claimant
continued to work for the respondents, although not under any written
contract. There was no evidence that the parties discussed who was the
claimant’s employer at this point or that there was a meeting of any sort about
the matter.
11.
It appeared that the respondents had the claimant arrange for her payslips to
be provided by the second respondent through a payroll company he already
used called Stafftax. Each respondent was to pay half of her salary directly.
There was no expectation either would cover the other’s salary payment if the
other was late.
12.
Neither respondent had any involvement with or control over the tasks the
claimant performed for the other respondent. They each provided her with
equipment to do their work and she performed the work at each respondent’s
home. She owed each respondent a duty of confidentiality in relation to the
work she carried out for that respondent. If she wished to take holiday, she
would arrange that with whichever respondent was affected by the leave and
if she was sick, she would inform the respondent affected.
13.
The claimant said that after many emails and conversations, she finally got a
written contract some 14 months later in December 2015.
14.
On 1 December 2015, the claimant and the second respondent signed an
employment contract which named the second respondent as the claimant’s
employer. There was no evidence from any witness of a discussion about the
contract; it appeared it was just given to the claimant and she signed it. The
first respondent cut and pasted it from the contract the claimant had had with I
V Capital Limited.
15.
The second respondent said that naming him as the employer was a matter of
administrative convenience as he already had a payroll company. Cross
examined about this matter, the first respondent said ‘somebody had to be the
employer and it was him’ and that ‘it was certainly administratively convenient’
for the second respondent to be the employer.
16.
The first respondent in his statement sought to give the impression that the
intention was for the second respondent to have the bulk of the claimant’s
time and that is why he was named as the employer but it was clear from
evidence and contemporaneous documents that this was not the intention nor
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
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what happened. We accepted that the second respondent was named as the
claimant’s employer because it was administratively convenient.
17.
The first respondent suggested that there were yearly reviews of the
claimant’s pay held at the second respondent’s flat but we saw an email from
May 2018 where the claimant was asking for a pay review as she had not had
one since 2015 so we accepted her evidence that there were no regular pay
reviews.
18.
During the first national lockdown in March 2020, the claimant worked
remotely for each respondent. She said that approximately 10% of the work
she carried out for the first respondent required her to be physically present at
his premises. The first respondent said that it was more like 15 – 20% of her
work. The work which required a physical presence was dealing with post
and filing. Some payments were made by cheque through the post and the
claimant was responsible for this task. The first respondent said there were
some 100 – 150 items of post per month and the claimant said it was more
like 100. This did not seem to us to be a material dispute. The filing was filing
of documents concerned with financial affairs such as invoices and receipts.
19.
It appeared to us that if we assumed that 15% of the claimant’s work required
a physical presence, that was in any event only approximately a couple of
hours of her two (sometimes three) day working week for the first respondent.
20.
We saw correspondence between the second respondent and the claimant in
April 2020. He told her that he was unable to pay her salary at that point. The
claimant was agreeable about waiting for her salary. She told the second
respondent that she was only leaving her house rarely.
21.
The second respondent was living in Paris and there was not a great deal of
work for the claimant to do for him. She monitored emails on the days she
worked for the second respondent and did some sporadic work, The
impression the Tribunal got was that both were content with a holding position
on her work pending developments.
22.
On 19 May 2020, the claimant wrote to the second respondent:
I am still unable to go to Shawfield Street due to the lockdown but we can
discuss when it is lifted.
I am not comfortable to take public transport but I am hoping to find a way as
soon as I can.
23.
The second respondent replied:
Thanks. I am ok with you not going to Shawfield Street at the moment. Let’s
see how things develop. I have asked Linda to go in twice a week on Monday
and Friday for 4 hrs each.
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Given the border controls, I think it is unlikely that we will be back before
September but depends on what France does in relation to border controls.
We will get the next announcement by 15th June.
I have not spoken with Ramy and Smadar recently but are they fine with you
working remotely?
24.
The claimant write to the second respondent:
Thank you, I am glad Linda goes to the house to check it.
The rules are very unclear in the UK, the message is stay at home but if you
can go to work go to work!
I cannot walk or cycle and I am concerned to take public transport because
not many travelers are taking precautions.
A lot of passengers arrive at Heathrow Airport every day but it does not seem
to be anything in place right now to test or check them.
Ramy and Smadar are fine, I have been working remotely for them. But they
want me to go to Eaton Square from this week and we are looking of how I
could reach their place because the underground is not a safe solution for me
or them.
25.
It was put to the first respondent and Mrs Goldstein that there were
discussions about the claimant coming to work by Uber at around this time. It
was put that Mrs Goldstein had been prepared to pay for the Uber but when
she learned the claimant now lived in Walthamstow said that she would pay
half the costs. The claimant gave no evidence on this point.
26.
Mrs Goldstein accepted that there was some sort of discussion about the
claimant taking Ubers but not that she knew the claimant was living in
Walthamstow or that there was a discussion about splitting the cost of the
Uber. She said there must have been another reason why the Uber plan was
not pursued.
27.
The claimant began to attend the first respondent’s house again in about late
May 2020 on an ad hoc basis. The first respondent and family were in France
during this period.
28.
We saw a diagram of the office where the claimant worked drawn by the first
respondent. There was a separate entrance to the office area. The first
respondent and his wife had desks and undertook their own work in an area
sectioned off with a glass partition. The first respondent spent more time
working there than his wife. When they entered the office they would pass
within two metres of the claimant.
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29.
The first respondent told us that the air conditioning controlled ventilation and
that the claimant knew how to use it and adjusted it to her liking. He said that
there was a Post it note with her preferred settings on the controls. The
claimant said she was not told how to adjust the air conditioning and the Post
it note belonged to the butler. We considered that the first respondent was
mistaken about this matter and had an incorrect recollection of who had left
the Post it note on the air conditioning controls.
30.
When the Goldstein family was away, the only other person who would
regularly be in that area would be the cleaner. The Goldsteins introduced
more regular cleaning as a response to the pandemic.
31.
There was some traffic in the corridor outside the office where the claimant
worked of contractors and, possibly on occasions when the Goldsteins
returned from France in the autumn, yoga and fitness instructors.
32.
Down the corridor there was a lavatory primarily for the claimant’s use but on
occasion used by Mr Goldstein.
33.
The Goldsteins accepted that they were not diligent about wearing masks
when working in proximity to the claimant: ‘It’s our home’.
34.
In June 2020, the extended Goldstein family went to their home in France.
35.
We saw an email dated 22 June 2020 in which the claimant asked the second
respondent if he wanted her to check his house as she would be in Belgravia.
He replied that he should start paying her first and hoped to get that sorted
very soon.
36.
On 4 September 2020, the second respondent wrote to the claimant:
I hope you are well and had a good holiday.
I have not come back to you regarding payment of your salary because I have
been struggling to complete my Eaton Square transaction. We were very
close earlier in the month of August but unfortunately it did not happen. I am
hopeful that it will be done next week.
In the meantime I have one request. Rebecca needs to set up a standing
order or direct debit with CESU for Lily’s social security payments. I
understand that you have dealt with it in the past. Can I ask if you can set this
up for Rebecca?
37.
That seemed to us to give some flavour of how sporadic the work for the
second respondent was.
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38.
The Goldsteins returned to London in September. The claimant said that they
had gone via Paris and Zurich.
39.
The first respondent said that there was a lot of post piled up when they
returned and that the cleaner said the claimant had only attended the property
twice whilst they were away. The claimant said that was not the case; she
attended regularly although not every working day and there was no post left
on her desk. She attended on 1 September but it appeared not later in
September and it seemed to the Tribunal that a fair amount of post could
have piled up by the time the Goldsteins returned from abroad if there tended
to be 100 plus items per month.
40.
On 28 September 2020, the first respondent emailed the claimant:
I would like to have a call tomorrow to discuss restarting being in [address] for
some of your days. Please give it some thought so we can discuss this
tomorrow.
41.
The claimant replied:
I hope you are both well.
In advance of our conversation later today, I write to detail the following with
regards to my working location going forwards in the current Covid-19
landscape since I suggest that we continue the current arrangement of me
working from home but attending the office on a once a month basis to action
each month's end. My reasons are as follows.
I have successfully been working from home since March 2020 with no sick or
missed days to date so it is therefore a safe and proven avenue to continue
with.
The current government guidance is for those, like myself, who can work from
home to go back to working from home.
However, since month end is best carried out with me in the office, I therefore
suggest (as clearly proven as being possible during recent months) that I still
attend the office at the end of each month to file papers and pay bills. Indeed,
I planned to attend the office, for this month's end, this Thursday 1st October
2020, as I presumed you are outside the quarantine period after your recent
return from France.
We are all living and working in difficult Covid-19 changed times, and I am
sure that you appreciate as much as I do that the most important is to keep
each of our households safe, healthy and virus-free especially since I shall be
commuting on the London Underground every time I attend your home.
This can of course be revisited as further governmental Covid-19 guidance is
issued and the Covid-19 landscape is better under control.
I look forward to discussing the above further when we speak later.
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42.
The first respondent responded:
Thank you for your email. As you will be here on Thursday we feel it
would be better to have this discussion in person.
We are very conscious of the risks the virus poses and we are at a
much higher risk group than yourself. We certainly will not want to
create undue risks for any of us. Having said this, we would need to
find the best way forward that works for both sides.
43.
The first respondent then sent a further email:
I forgot to include in my e mail confirmation that both Smadar and I are no
longer in quarantine, as of today.
Separately, the only other person here when you will be is Maricar [the
cleaner] who has no need to be in close proximity to you.
For the purpose of working with you when you are here adherence to social
distancing can be maintained.
44.
On 1 October 2022, there was an in person discussion between the first
respondent, Mrs Goldstein and the claimant. The first respondent and Mr
Goldstein stood at the claimant’s desk during the discussion. They were not
wearing face masks. Their position appeared to be that they were more
vulnerable than the claimant. They are several decades older than the
claimant. They said that they were not aware that the claimant had a partner.
They made no enquiries as to the claimant’s vulnerability or that of anyone in
her household nor did the claimant explain her particular concerns.
45.
The Goldsteins said that they could not accept an arrangement where the
claimant only came in once a month and proposed that she come in every
other week. The claimant agreed to that arrangement.
46.
The first respondent says the arrangement became more flexible and the
claimant could come in every week to ten days as the work required and she
could choose the time of day. The claimant said that they did discuss varying
her hours so she could avoid travelling on congested tubes but that was not
what happened in fact.
47.
On 6 October 2020, the first respondent emailed the claimant:
There is some confusion as to when you will work at [address].
My understanding is that you will be here once per week on Tuesday or
Thursday (or Friday) at your choice. Smadar asked you to let her know which
day you selected. I was under the impression - obviously not correctly - that
you would come on Tuesday.
Please confirm what day you will be here this week.
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Unless you decide to fix the same day for all weeks, please let us know in
advance (on Fridays) what days you intend to be here in the following week
so we can plan accordingly.
As we discussed, you can set your time of arrival and departure to see which
times result in lower congestion on the tube.
48.
The claimant replied:
My apology for the confusion. Our last conversation before you left the office
for your party last week, you said that you will call me on Tuesday to confirm
which date to come based on your schedules.
I will be coming on Thursdays outside congestion hours, as suggested with
Smadar I will be at yours around 11am to avoid the busy underground and will
be leaving at 4pm. Please be mindful if another lockdown happens I won't be
able to travel.
49.
The claimant said that at this point she would be given work late in the day by
the Goldsteins when at their premises and end up having to stay late, She
was conscious they were socialising, including having extended family for
Friday night dinner. This was part of the context in which the failure to wear
masks in her presence caused her concern.
50.
On 4 November 2020, the claimant wrote to the Goldsteins:
I hope you are both well today.
With regards to the new Covid-19 lockdown that is due to start at midnight on
Thursday 5th November 2020, having now considered the issue and taken
advice (just like the first lockdown that we were all required to observe in
order to keep ourselves safe) the UK government guidance is clear in relation
to staying at home and working,
(https://www.gov.uk/guidance/new-national-restrictions-from-5-
november):
“1. Stay at home
You must not leave or be outside of your home except for specific purposes.
These include:
Work and volunteering
You can leave home for work purposes......where you cannot do this from
home.”
Respectfully, I do not wish to act outside these new lockdown rules and break
the law and I am confident that you would not wish to encourage to do so.
In addition to having attended on Tuesday this week, I will also attend again
tomorrow in order to do any pressing matters before lockdown starts and then
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will continue to work from home as during the much longer original previous
lockdown period.
We are all living and working in difficult Covid-19 changed times, and I am
sure that you appreciate as much as I do that the paramount consideration is
to keep each of our households safe, healthy and virus-free
51.
The claimant had taken some legal advice. It appeared that the claimant was
at the Goldsteins’ premises on 5 November 2020 but we heard no evidence
as to what if any discussion there was about the claimant’s email and the
impending lockdown. The first respondent said that they probably did not
discuss a risk assessment and in his subsequent email there is no mention of
any discussion, which suggested to us that the topic was not raised.
52.
On 5 November 2020, the first respondent wrote to the claimant:
The government guidance link you were kind enough to send us in the e mail
below are the general guidelines for the lock down.
There are more specific guidelines that deal with working in other people’s
homes. You can find these here - https://www.gov.uk/quidance/ workinq-
safely-durinq- coronavirus-covid-1 9/homes
The guidelines on working in other people’s homes clearly envisage people
working in other people’s homes and discuss the details for doing so.
We are very attuned to the Covid-19 situation. As far as I know, we are in a
higher risk group than you simply due to our age. So we take the matter of
Covid risk extremely seriously.
We consider your work environment in our home (essentially the office and
nearby toilet with an occasional journey to the entrances of 98) Covid-safe
and compliant. In particular we note the fact the social distancing can be
maintained to a very high degree and that there is almost no traffic at all in the
house.
I will carry a formal Covid risk assessment of the house over the weekend,
following the Government’s guideline.
We certainly do not wish you to be exposed or for us to be exposed to any
unnecessary risk. At the same time, life and work must go on as best it can
and with compliance with the guidelines set by the government. We are very
confident that working in our home does not expose you to such risk.
In addition to our home environment, we appreciate the issue of heightened
risk of travelling on the underground during rush hour. This can be mitigated
by arriving here (as you have been doing as of late) at 10:30 instead of 8:30
and leaving either earlier than you normally did (at 18:00) if work tasks permit,
or much later if the completion of tasks require it.
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Our view, based on the last few months is that while it is possible for you to
perform some of the work tasks from your home, the quality of the support we
get when you work remotely is lower than when you are on site. Our view is
that we should divide the work so that some tasks can be done by working
remotely but some tasks need to be done on site. To this end I propose that
we continue with what we agreed earlier, namely alternate between on site
and remote work. As you have indicated the Thursday is a better day for on
site, so we can go with that. In terms of the third Friday, we propose we keep
that on site. Having proposed that, we can be flexible in the sense that we can
maintain a log of tasks and agree what tasks can be handled remotely and
what tasks need to be performed on site.
In the event that the tasks immediately ahead of an on site day are tasks that
can be done remotely as effectively,we will not need you to come in just for
the sake of coming in.
Please consider this and we can have the discussion tomorrow or on Monday
if you need more time to think about it.
Marie, these times are quite difficult for everyone and no one is spares [sic]
some financial or other hardship. We have protected your position and pay
with no discussion since the beginning of the epidemic. But it is unfair on us to
pay the full amount and feel we are not getting the level of support upon which
the conditions of employment were agreed. We feel we have compromised a
lot and that further compromise in term of no on site work at all is not
something that is fair on us or that we wish to engage in.
Please consider the situation carefully and we can then discussed [sic] the
plans going forwards.
53. The first respondent said that he did a risk assessment but was not required
by the governmnet guidance to do a written risk assessment. That was correct
but we noted that the guidance did suggest that employees should be
consulted with, which did not happen in a formal way. The first respondent
said that they had discussed risk throughout; we had some sympathy with that
position but considered that it is nonetheless incumbent on an employer to
raise the matter clearly so an employee has an opportunity to bring up any
concerns. In the claimant’s case she would for example have had a forum in
which to raise the concern about the Goldsteins not wearing masks had the
matter been raised clearly with her in the context of a risk assessment.
54.
It is relevant at this stage to say a bit more about the government guidance
about workers in other people’s homes which the first respondent was relying
on. The document included a non exhaustive description of workers who
work in other people’s homes such as repair services and childcare providers
as well as delivery drivers. The purpose of the document was to assist
employers and employees to understand how to work safely, not to define the
circumstances in which an employer is entitled to expect a home worker to
attend during a lockdown. The document maintains the basic principle extant
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at the time that people should stay at home where possible and should only
travel to work if they cannot work from home. Those who need to visit other
people’s homes for their work could continue to do so. The test in general was
one of necessity.
55.
The November 2020 lockdown was expected at the time to last for a month.
56.
On 10 November 2020, the claimant wrote to the first respondent:
I am emailing to inform you that I cannot come to work today, Tuesday 10th
November 2020, because I have been feeling unwell and stressed since the
end of last week.
I will update you later in the week after I have spoken to my GP.
57.
There was no email from the first respondent in response to this email. His
evidence about that was that he was probably expecting an update.
58.
In 11 November 20220, the claimant sent the first respondent her sick
certificate. The claimant’s doctor had not included the stamp for the practice
or his GMC number. The claimant later sent an updated version with the
missing elements included.
59.
12 November 2020, the claimant sent her resignation letter to the first
respondent. She had taken some legal advice:
Re: My Formal Resignation from Working for You and the Goldstein
Household
I write to officially resign, with notice, my position as Personal Assistant to
yourself and the Goldstein residence under my implied employment contract
with you. My notice period is 8 weeks. For the sake of clarity, this resignation
letter has no bearing to my employment with Mr Sareen.
I am resigning from you for the following reasons albeit this is not an
exhaustive list:
• Due to the stress and anxiety caused by working for your household, I can
simply no longer work for you.
• I feel pressured to attend your workplace during the current November 2020
UK Covid-19 national lockdown when I can adequately work remotely during
this time as proven, having successfully done so, during the previous and
longer March 2020 national lockdown.
• I do not want to break the law in respect of current national lockdown
guidance especially since it is not essential that I attend your workplace. My
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attendance in person feels required simply to placate your and Smadar' s
wishes for me to be there.
• With your own comings and goings and me having to travel on public
transport to and from your workplace, I do not feel that it is a safe environment
and to date no risk assessment has been provided to me.
• I felt contempt, hostility and disrespect from Smadar and yourself for even
airing my concerns above which have fuelled my loss of trust and confidence
in yourselves.
• I have been in your employment for over 11 years and I feel that I have no
choice now other than to resign. Indeed, I have felt disrespected and
unappreciated for so long now and the prospect of returning to your
workplace quite frankly fills me with dread. I always had the choice whether to
offer my services and work for you both and now I choose to resign.
Treating people with humanity, respect and compassion is all important to me.
The final straw for me was your email dated 5 th November 2020. I felt very
hurt, disappointed and disrespected after so many years of dedicated service
to you both to receive such a critical email about my work and my pay when
all I requested was that I did not wish to go against UK governmental national
Covid-19 lockdown guidance and law to attend your residence to work. And
for the sake of clarity even though I always received pay review praise for the
work I did for you, I have not had a pay rise since 2015. Since you felt the
need to impress your feelings/dismay in your email, allow me to say the
following:
• To date, I have always made myself available to you, Smadar and the rest of
your family and I did my level best to deal with all your requests and tasks
whether here or abroad.
In all my 11 years of employment I have never been late for work and my sick
days until now have been minimal.
• Smadar never gave me any positive feedback regardless of how well and
hard I worked. I will only have memories of her criticism, bullying and
indiscreet manner.
• As for being paid, every month was the same demeaning experience of
having to remind or chase you to pay my wages. You may never have had to
chase a party to pay you but having had to do so every month felt like having
to beg you just to receive pay that I had rightfully earned. This always felt at
its highest as a statement of power and position; at its lowest, simply
disrespectful and uncaring.
• I felt that my work was never good enough for both of you regardless of how
many times I worked early or late or through my lunchtimes and breaks
especially once Philip resigned and when the workload and your demands
increased.
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All the above has directly caused and resulted in me now suffering and being
medically diagnosed with work related anxiety and stress indeed, I have been
signed off for the next month as sick by my doctor with work related stress -
see his attached GP Sick Note dated 11 th November 2020. For the sake of
clarity, while I am signed off sick, I am not allowed to deal with any of your
emails, messages nor work so please respect this for any such
enquiries/requests will go unanswered.
Finally, since I have formally been signed off work and have now resigned
and I do not know when I will be well enough to return during my notice
period, I shall today return you, via guaranteed recorded delivery, all work
related materials, namely, my memory stick containing your work files as well
as the set of your house keys that I hold. I request in return that you send me,
via the same manner, my desk lamp to my home address of 67 Falmer Road,
London, E17 3BH. Thank you.
60. On 12 November 2020, the first respondent wrote to the claimant:
I am in receipt of your letter dated 12/11/2020 in which you informed me you
no longer wish to work here.
First, I am sorry to hear that you are unwell and wish you a speedy recovery.
As you know, the employment contract that covers your work here is the
contract between Vipin and you. That contract envisages you working some of
the time in my house, which reflects the reality exactly.
In your letter you refer to an “implied contract” with me. I do not know whether
or not an implied exists. My view would be that to the extent there an implied
contract exists, the provisions of such a contract are exactly the same as
those stated in your contact with Vipin. If you are in agreement with that,
kindly confirm this to me and we may then proceed on that basis.
For the avoidance of doubt, what I am saying is that if you can confirm that
you agree that if there is an implied contract, the provisions of the implied
contract are the same as the provisions of your contract with Vipin, that may
allow for a basis to proceed.
Kindly let me know regarding this point.
In your letter you make statements that are either completely subjective,
mischaraterise [sic] reality or are simply untrue. Such statements cannot be
accepted as factual or correct. Fortunately, there is no requirement to state or
agree any of these statements and there is no reason for me to respond other
than to say that I do not accept these statements as correct.
Regarding any property you may have left in the office here, I will search the
space you used and any property belonging to you will be return to your home
address as you request.
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61.
The first respondent’s evidence was that he felt he was being ‘set up’ by the
claimant and that seemed to the Tribunal to account for the tone of this email;
he thought that the claimant was going to pursue him legally and reacted to
that.
62.
On 13 November 2020, the first respondent wrote to the claimant:
I have spoken with Vipin this afternoon and he reported that he had spoken
with you earlier today and you agreed to his suggestion that the cleanest and
easiest way to execute formally your decision to stop working here is for you
to resign under the contract, thereby terminating the contract now and
following the relevant clauses without any additional complexity. Vipin and you
can then enter into new agreement should both of you wish to do so.
In order to implement this we need to receive from a signed resignation
addressed to Vipin, informing him of your wish to terminate your employment
pursuant to clause 3.2 of the employment contract, with effect from
12/11/2020.
The letter can be a single sentence letter. The contract does not require you
to give any reason for the termination, nor does it require you to give no
reason.
Once we receive this letter we will be able to follow the correct formal
process.
All items of property belonging to you which I found in the office after a
thorough check of your area have been posted to you today. The Tracking
Number is FWGD1 392396GB.
63.
Both respondents gave evidence that what was reported in this email
reflected the telephone conversation they had had. The claimant’s evidence
was that what the first respondent wrote did not accurately reflect the
conversation she and the second respondent had. She said she never agreed
to resign from the second respondent’s employment but only from the first
respondent’s. She had no reason to resign from the second respondent and
liked her job; this was of course the middle of the pandemic and the claimant
had had legal advice. We accepted her account which accorded with what
she had said in her resignation letter. It is possible that the second respondent
genuinely came away from their phone call believing the claimant had agreed
to what was being suggested; he may have suggested it and the claimant did
not rebuff the notion in entirely clear terms. We note the two had an amicable
relationship and the claimant would not have wanted to fall out with him.
64. On 18 November 2020, the claimant wrote to the first respondent:
I write to reclarify my position having again spoken to my employment lawyer,
especially since, as you are fully aware, I am currently suffering from work
related stress and anxiety.
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For the sake of clarity, I maintain and re-iterate my original position, as noted
in my 12.11.20 resignation letter to you, that I am resigning from you and the
Goldstein employment only and not from Vipin and his employment, which I
am entitled to do.
If I were to resign from both employers at this time, I would be in effect making
myself unemployed and would lose all my employment rights that I have
accrued over many years. Voluntary unemployment may also hinder me for
various reasons including any eligibility and receipt of unemployment state
aid.
Finally, since I am only resigning from your employment, please let me know
whether you prefer to pay my 8 week notice period in lieu, as well as any
owed days of holiday, in order to immediately terminate my employment with
you and the Goldsteins. Thank you
65.
The first respondent then wrote to the second respondent:
Marie’s response is not at all what you thought she agreed to.
I am happy to continue pursuing this matter with her on my own which may
turn confrontational. I just want to touch base with you before I begin anything
in case you have other ideas.
Please call at your convenience so we can have the discussion.
66.
He wrote further, attaching the claimant’s contract:
I think this is the same as the unsigned version I have. (I did not verify word
for word.)
Please consider what it would mean to terminate her contract. Potentially for
cause, as she is refusing to fulfil the employment condition of working in my
house. There is no such thing as resigning from 1/2 a job and keeping the
other.
I think if I were to become unfriendly to her and the contract remain
unterminated she (=her lawyer) will drag you in.
67.
The claimant wrote to the second respondent:
Following our earlier conversation and my continued employment with you
only (and no longer for the Goldsteins), we can simply agree to amend the
following details of our existing employment contract (dated 01.10.14 but
signed 01.12.15 - see attached) since this method causes no change to either
of us and can be dealt with easily:
1. I am your employee and my sole employer is yourself and your household.
[The Goldsteins are no longer my employer and all references to them are to
be removed];
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2. My revised pay is £27,500 (Twenty Seven Thousand Five Hundred
Pounds);
3. Place of work is 20, Shawfield Street London SW3 4BD, if not working
remotely;
4. The above changes are a revision of my existing employment contract
(dated 01.10.14 but signed 01.12.15 - see attached) and therefore my
employment rights flow and continue unbroken from it.
Any future revisions can be agreed amongst ourselves in due course or on
your return to the UK.
If you do not wish to accept the above revised contract terms, then our current
employment contract will simply continue to stand as is.
As for the outstanding wages that you still owe me, from March 2020 to date,
as agreed and out of loyalty and courtesy to you and your household, I shall
continue to be patient for their payment, and for the delay compensation you
spoke of, as long as I reasonably am able to.
Thank you and I look forward to receiving your reply
68. On 19 November 2020, the first respondent wrote to the claimant:
You walked off the job with no forewarning, no discussion and without any
form of handover that is necessary for us to maintain business continuity.
Such conduct is unacceptable, unprofessional and contradicts norms of
normal and reasonable business behaviour.
You sent us a note purporting to be a doctor's note but one not containing the
name of the doctor or his contact information. You claimed sickness due to
"stress" as the reason for both not being able to work indefinitely as well as
not communicating with us about work. {Although you seem perfectly capable
of communicating normally when it comes to dealing your own interests.)
Marie, I request and expect you to engage in a proper handover of your
responsibilities so that we will not suffer any damage as a result of business
discontinuity caused by your abrupt departure.
Kindly find attached a list of items that we require you to supply in order to
provide for a proper handover. The list may not be exhaustive and I reserve
the right to amend it. It may also require your physical attendance in Eaton
Square.
I expect you to cooperate fully and in good faith in an orderly handover
process. This includes providing all information requested which is required
for someone else to take over your work streams.
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It would also include making yourself available by telephone for a certain
period of time to answer questions that might arise and to which only you
might know the answers.
Kindly advise when you will comply with this request. A proper response may
also require you to come to show us the precise locations of certain items.
Until you advise me about the handover, I will reserve my position on all
matters going forward.
69.
On 20 November 2020, the second respondent wrote to the claimant:
Following on our conversation yesterday and my objective to resolve the
matter of your resignation in a smooth and amicable manner, I outline below
my views and questions and ask you to comment on them.
1) Your current contract has two functions and these are working for me and
working for the Goldstein family. You have now decided that you want to stop
carrying out one of the two functions and want to continue with the rest ofthe
contract. I do not believe that this works. You can't as a matter of principle
decide unilaterally to disregard one part of the contract and expect to continue
with the rest. As a matter of contract law, I just don’t think that can be valid. I
understand that you have taken advice on this but I do not believe that the
advice is correct. It is after all one single employment contract. I think the only
way to deal with this would be to resign thus terminating the whole contract
and separately entering into another contract with me which obviously need to
have different terms as my requirements have changed significantly.
2) You have said that you are trying to protect your rights under the
employment contract and hence you have resigned the way you have. What
rights are you trying to protect? I also cannot see how those obligations in
their entirety can fall upon me even if the the way you propose the contract to
continue was valid.
3) I think it is important to recognise that the part of your current employment
function as it pertains to me and documented in the employment contract as
such, does not really exist anymore and have not done so for some time.
4) Lastly, just for your information, the Goldstein family feels that there needs
to be a proper handover of your tasks to them and that they will write to you
separately on that.
70.
The second respondent forwarded this email to the first respondent who
suggested that they wait and see what response came back and: ‘My view
would be, if nothing comes back or Marie persists in her position, is that the
contract should be terminated for cause.’ He said that he had not checked but
believed that their exposure would be the claimant’s eight week notice period
and that it would be illogical for the claimant to litigate for that sum. He said
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that the second respondent ‘will need to follow the process prescribed by law
which as I recall required a meeting or two etc.’
71.
The second respondent did not take the action proposed by the first
respondent. He told the Tribunal that he was unwell with bronchitis and
asthma for four to six weeks from December 2020 and that is why he did not
write further. In fact he did not write further on the issue even when he was
well but sent the claimant some work to do sporadically.
72.
The claimant was signed off work sick until January 2021 but after that she
contacted the second respondent to start work again and to ask for her unpaid
wages. She continued to do a very limited amount of work for the second
respondent, as before. The second respondent did not write further to say she
was no longer employed and the two corresponded in January and February
2021 about her pay and payslips. The claimant asked for her outstanding pay
up to February 2021 and also for her payslips. The second respondent said
he would update her on her pay and assisted her in accessing payslips. He
did not suggest she no longer worked for him or was not entitled to pay for
these periods.
73.
On 11 May 2021 the claimant discovered from speaking with HMRC that a
P45 had been issued in respect of her employment with the second
respondent indicating a termination date of 30 November 2021. She received
official confirmation of that on 8 June 2021. We saw records from Stafftax
which showed that the second respondent had requested the P45 on 24
March 2021. On 31 March 2021, the claimant carried out some work for the
second respondent.
74.
On 8 June 2021, the claimant wrote to the second respondent saying she was
confused and hurt by what she had found out about the P45 and indicating
that she would be presenting a claim against him in the Employment Tribunal.
75.
We heard some evidence from the first respondent about whether he had an
ongoing need for the claimant’s services in any event. He told the Tribunal
that he had found out that various tasks the claimant had done in relation to
his French property using paper forms and cheques could be done digitally.
He had less need for her translation skills as he could use Google translate
for example. He was now able to do himself many or all of the written tasks
the claimant had carried out in French. He had not replaced the claimant and
had no intention to do so. He had not found a solution to physically filing hard
copy documents.
Law
Employment status: who is the employer?
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76.
In Clark V Harney Westwood and Riegels and ors, the EAT gave guidance as
to how to assess who an employee’s employer is in cases where there is a
dispute:
52. In my judgment, the following principles, relevant to the issue of
identifying whether a person, A, is employed by B or C, emerge from those
authorities:
a. Where the only relevant material to be considered is documentary, the
question as to whether A is employed by B or C is a question of law: Clifford
at [7].
b. However, where (as is likely to be the case in most disputes) there is a
mixture of documents and facts to consider, the question is a mixed question
of law and fact. This will require a consideration of all the relevant evidence:
Clifford at [7].
c. Any written agreement drawn up at the inception of the relationship will be
the starting point of any analysis of the question. The Tribunal will need to
inquire whether that agreement truly reflects the intentions of the parties:
Bearman at [22], Autoclenz at [35].
d. If the written agreement reflecting the true intentions of the parties points to
B as the employer, then any assertion that C was the employer will require
consideration of whether there was a change from B to C at any point, and if
so how: Bearman at [22]. Was there, for example, a novation of the
agreement resulting in C (or C and B) becoming the employer?
e. In determining whether B or C was the employer, it may be relevant to
consider whether the parties seamlessly and consistently acted throughout
the relationship as if the employer was B and not C, as this could amount to
evidence of what was initially agreed: Dynasystems at [35].
53. To that list, I would add this: documents created separately from the
written agreement without A's knowledge and which purport to show that B
rather than C is the employer, should be viewed with caution. The primacy of
the written agreement, entered into by the parties, would be seriously
undermined if hidden or undisclosed material could readily be regarded as
evidence of a different intention than that reflected in the agreement. It would
be a rare case where a document about which a party has no knowledge
could contain persuasive evidence of the intention of that party. Attaching
weight to a document drawn up solely by one party without the other's
knowledge or agreement could risk concentrating too much weight on the
private intentions of that party at the expense of discerning what was actually
agreed.
[Per Choudhury P]
Health and safety dismissals
77.
An employee is automatically unfairly dismissed if the reason or principal
reason for dismissal is one of the health and safety reasons set out in section
100 Employment Rights Act 1996.
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78.
Tribunals should take a two stage approach under section.100(1)(e). Firstly:
- Were there circumstances of danger that the employee reasonably believed
to be serious or imminent?
- Did he or she take or propose to take appropriate steps to protect him or
herself or other persons from the danger?
The second stage is to consider whether the employer’s sole or principal
reason for dismissal was that the employee took or proposed to take
appropriate steps. If so the dismissal would be automatically unfair: Oudahar
v Esporta Group Ltd [2011] ICR 1406, EAT.
79.
The ‘circumstances of danger’ are not limited to dangers in the workplace
itself: Harvest Press Ltd v Mr T J McCaffrey [1999] IRLR 778, EAT.
80.
Subsection 100(1)(e) is to be read with words inserted as follows: ‘in
circumstances of danger which the employee reasonably believed to be
serious and imminent, he took (or proposed to take) appropriate steps to
protect himself or other persons from the danger or to communicate these
circumstances by any appropriate means to the employer’ in order to comply
with EU Directive No.89/391: Balfour Kilpatrick Ltd v Acheson and ors [2003]
IRLR 683.
81.
Subsection 2 of section 100 provides: ‘For the purposes of subsection (1)(e)
whether steps which an employee took (or proposed to take) were appropriate
is to be judged by reference to all the circumstances including, in particular,
his knowledge and the facilities and advice available to him at the time.
82.
Subsection (1)(c) provides that an employee will be automatically unfairly
dismissed where the sole or principal reason for the dismissal is that, in
circumstances where there is no safety representative or safety committee,
the employee brought to the employer’s attention by reasonable means
circumstances connected with her work which she reasonably believed were
harmful or potentially harmful to health and safety.
83.
Subsection (1)(d) provides that an employee will be automatically unfairly
dismissed where the sole or principal reason for the dismissal is that in
circumstances of danger which the employee reasonably believed to e
serious and imminent and which she could not reasonably have been
expected to avert, the employee took one of a number of types of action
including refusing to return to her place of work.
84.
The respondent referred us to the case of Rodgers v Leeds Laser Cutting Ltd
2022 EAT 69 in which the EAT decided that the tribunal had permissibly
concluded that the claimant did not believe his workplace presented any
greater risk than the risks at large in the pandemic and that he did not
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reasonably believe there were circumstances of danger which were serious
and imminent.
Health and safety detriment
85.
An employee has a right not to be subjected to a detriment by any act or
deliberate failure to act by his or her employer done on the ground that the
employee has taken one of a number of types of action relating to health and
safety. These include at s 44(1)(c) bringing to an employer’s attention by
reasonable means circumstances connected with the employee’s employment
which the employee reasonably believed were harmful or potentially harmful
to health and safety. Under this limb of s 44(1), the employer must either not
have a safety representative or committee or it must not be reasonably
practicable for the employee to raise the matter in question by way of the
safety representative or committee.
86.
Under section 44(1)(e) Employment Rights Act 1996, it is unlawful for an
employer to subject an employee to detriment because in circumstances of
danger which the employee reasonably believed to be serious and imminent,
he or she took (or proposed to take) appropriate steps to protect himself or
other persons from the danger .Section 44(1)(d) makes it unlawful to subject
an employee to detriment on the ground that in circumstances of danger
which the employee reasonably believed to be serious and imminent and
which she could not reasonably have been expected to avert, the employee
took one of a number of types of action including refusing to return to her
place of work
Protected disclosures
87. Section 43B(1) ERA 1996 defines a qualifying disclosure as a disclosure of
information which in the reasonable belief of the worker making the disclosure
is in the public interest and tends to show one of a number of types of
wrongdoing. These include ‘(b)that a person has failed, is failing or is likely to
fail to comply with any legal obligation to which he is subject’ and ‘(d) that the
health and safety of any individual has been, is being or is likely to be
endangered.’
88. To be a protected disclosure, a qualifying disclosure must take place in
circumstances prescribed by other sections of the ERA, including, under
section 43C, to the worker’s employer.
89.
Guidelines as to the approach that employment tribunals should take in
whistleblowing detriment cases were set out by the EAT in Blackbay Ventures
(trading as Chemistree) v Gahir (UKEAT/0449/12/JOJ):
89.1 each disclosure should be identified by reference to date and content
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89.2 the basis upon which the disclosure is said to be protected and
qualifying should be addressed
89.3 if a breach of a legal obligation is asserted:
each alleged failure or likely failure to comply with that obligation
should be separately identified; and
the source of each obligation should be identified and capable of
verification by reference for example to statute or regulation
89.4 the detriment and the date of the act or deliberate failure to act resulting
in that detriment relied upon by the claimant should be identified
89.5 it should then be determined whether or not the claimant reasonably
believed that the disclosure tended to show the alleged wrongdoing
and, if the disclosure was made on or after 25 June 2013, the claimant
reasonably believed that it was made in the public interest.
90.
There is a number of authorities on what a disclosure of ‘information’ is. It
must be something more than an allegation; some facts must be conveyed:
Cavendish Munro Professional Risks Management Ltd v Geduld [2010] ICR
325. There is no rigid dichotomy between allegations and facts. A statement
must have sufficient factual content and specificity such as is capable of
showing one of the matters listed at s 43B(1): Kilraine v Wandsworth LBC
[2018] ICR 1850.
91.
There is little authority on the issue of what ‘likely’ means in the various limbs
under s 43B(1). In Kraus v Penna plc [2004] IRLR 260, the EAT interpreted
‘likely’ as meaning ‘probable or more probable than not’ and said that there
must be more than a possibility or risk that an employer might fail to comply
with the relevant legal obligation. We note that more recent authorities on the
meaning of the word ‘likely’ in other employment law contexts such as in the
context of the definition of disability under the Equality Act 2010 have adopted
a lower test for likelihood; in respect of the definition of disability, ‘likely’
means ‘could well happen’ but accept that for these purposes we must apply
the guidance in Kraus v Penna.
92.
The burden of proof is on the worker to show that he or she held the requisite
reasonable belief. The tribunal must look at whether the claimant subjectively
held the belief in question and objectively at whether that belief could
reasonably be held. The allegation need not be true: Babula v Waltham
Forest College [2007] IRLR.
93.
The reasonableness of the worker’s belief is determined on the basis of
information known to the worker at the time the decision to disclose is made:
Darnton v University of Surrey [2003] IRLR 133.
94.
Factors relevant to the issue of whether a worker reasonably believed that a
disclosure was in the public interest include:
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94.1 the number in the group whose interests the disclosure served (the
larger the number, the more likely the disclosure is to be in the public interest)
94.2 the nature of the interests affected (the more important they are, the
more likely the disclosure is to be in the public interest)
94.3 the extent to which those interests are affected by the wrongdoing
disclosed (the more serious the effect, the more likely the disclosure is to be
in the public interest)
94.4 the nature of the wrongdoing disclosed (the disclosure of deliberate
wrongdoing is more likely to be in the public interest than the disclosure of
inadvertent wrongdoing)
94.5 the identity of the alleged wrongdoer (the larger and more prominent the
alleged wrongdoer, the more likely the disclosure is to be in the public
interest)
(1) Chesterton Global (2) Verman v Nurmohamed [2017] IRLR 837.
95.
A worker has a right not to be subjected to a detriment by any act or
deliberate failure to act on the part of his or her employer done on the ground
that the worker has made a protected disclosure under s 47B ERA 1996.
96.
Under section 103A ERA 1996, if the sole or principal reason for a dismissal
is that the employee made a protected disclosure, the dismissal will be
automatically unfair.
Causation of detriment / burden of proof
97.
Where the employee complains of detriment under various provisions of the
ERA 1996, including and s 47B and s 44, the tribunal will consider the
complaint under s 48. S 48(2) provides that it is for the employer to show the
ground on which any act or deliberate failure to act was done.
98.
The worker must show:
92.1 that he or she made a protected disclosure / act falling within s 44 and
92.2 that he or she suffered less favourable treatment amounting to a
detriment caused by an act, or deliberate failure to act, of the employer
92.3 a prima facie case that the disclosure / s 44 act was the cause of the act
or deliberate failure to act which led to the detriment.
(International Petroleum Ltd v Osipov & others 2017 WL 03049094, EAT and
Serco Ltd v Dahou 2017 1RLR 81, CA)
99.
Once the worker has done that, the employer must show:
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99.1 the ground on which the act, or deliberate failure to act, which caused
the detriment was done
99.2 that the protected disclosure played no more than a trivial part in the
application of the detriment (Fecitt v NHS Manchester [2012] ICR 372, CA).
Constructive dismissal
100. Section 95(1)(c) of the Employment Rights Act 1996 provides that an
employee is taken to be dismissed by his employer if “the employee
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”.
101. It is established law that (i) conduct giving rise to a constructive dismissal
must involve a fundamental breach (or breaches) of contract by the employer;
(ii) the breach(es) must be an effective cause of the employee’s resignation;
and (ii) the employee must not, by his or her conduct, have affirmed the
contract before resigning.
102. If a fundamental breach is established the next issue is whether the breach
was an effective cause of the resignation, or to put it another was, whether the
breach played a part in the dismissal. In United First Partners Research v
Carreras 2008 EWCA Civ 1493 the Court of Appeal said that where an
employee has mixed reasons for resigning, the resignation would constitute a
constructive dismissal if the repudiatory breach relied on was at least a
substantial part of those reasons.
103. In this case the claimant claims breach of the implied term that the employer
should not, without reasonable and proper cause, conduct itself in a way that
is calculated or likely to destroy or seriously damage the relationship of
mutual trust and confidence that exists between an employee and her
employer. Both limbs of that test are important. Conduct which destroys trust
and confidence is not in breach of contract if there is reasonable and proper
cause.
104. It is irrelevant that the employer does not intend to damage this relationship,
provided that the effect of the employer’s conduct, judged sensibly and
reasonably, is such that the employee cannot be expected to put up with it:
Woods v Car Services (Peterborough) Limited [1981] ICR 666. It is the
impact of the employer’s behaviour (assessed objectively) on the employee
that is significant - not the intention of the employer (Malik v BCCI [1997] IRLR
462. It is not however enough to show that the employer has behaved
unreasonably although “reasonableness is one of the tools in the employment
tribunal’s factual analysis kit for deciding whether there has been a
fundamental breach”: Buckland v Bournemouth University Higher Education
Corporation [2010] IRLR 445.
105. The breach of this implied obligation of trust and confidence may consist of a
series of actions on the part of the employer which cumulatively amount to a
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breach of the term, though each individual incident may not do so. In Omilaju
v Waltham Forest LBC [2005] ICR the Court of Appeal said that the final straw
may be relatively insignificant but must not be utterly trivial: “The test of
whether the employee's trust and confidence has been undermined is
objective.”
106. A breach of the implied term of trust and confidence is necessarily a
repudiatory breach of contract: Ahmed v Amnesty International [2009] ICR
1450.
107. In Kaur v Leeds Teaching Hospitals NHS Trust 2018 EWCA Civ 978 the Court
of Appeal listed five questions that it should be sufficient ask in order to
determine whether an employee has been constructively dismissed;
a.
What was the most recent act (or omission) on the part of the employer
which the employee says cause, or triggered, his or her resignation?
b.
Has he or she affirmed the contract since that act?
c.
If not, was that act (or omission) by itself a repudiatory breach of
contract?
d.
If not, was it nevertheless a part of a course of conduct comprising
several acts and omissions which viewed together amounted to a
(repudiatory) breach of the implied term of trust and confidence? (If it
was, there is no need for any separate consideration of the previous
possible affirmation).
e.
Did the employee resign in response (or partly in response) to that
breach?
108. It is of course somewhat artificial to require an employer who denies having
dismissed an employee to show a reason for the dismissal. The Court of
Appeal addressed this problem in Berriman v Delabole Slate Limited [1985]
ICR 546 where the Court said that, in the case of a constructive dismissal, the
reason for the dismissal is the reason for the employer’s breach of contract
that caused the employee to resign. This is determined by analysis of the
employer’s reasons for so acting, not the employee’s perception (Wyeth v
Salisbury NHS Foundation Trust UK EAT/061/15).
Polkey reduction
109. Section 123(1) ERA provides that
‘…the amount of the compensatory award shall be such amount as the
tribunal considers just and equitable in the all the circumstances having
regard to the loss sustained by the complainant in consequence of the
dismissal in so far as that loss is attributable to action taken by the employer.’
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110. A tribunal will be expected to consider making a reduction of any
compensatory award under section 123(1) ERA where there is evidence that
the employee might have been dismissed if the employer had acted fairly (see
Polkey v AE Dayton Services 1988 ICR 142; King and ors v Eaton (No.2)
1998 IRLR 686).
111. The authorities were summarised by Elias J in Software 2000 Ltd v Andrews
and ors [2007] ICR 825, EAT. The principles include:
in assessing compensation for unfair dismissal, the employment tribunal must
assess the loss flowing from that dismissal, which will normally involve an
assessment of how long the employee would have been employed but for the
dismissal;
if the employer contends that the employee would or might have ceased to
have been employed in any event had fair procedures been adopted, the
tribunal must have regard to all relevant evidence, including any evidence
from the employee (for example, to the effect that he or she intended to retire
in the near future);
there will be circumstances where the nature of the evidence for this purpose
is so unreliable that the tribunal may reasonably take the view that the
exercise of seeking to reconstruct what might have been is so riddled with
uncertainty that no sensible prediction based on the evidence can properly be
made. Whether that is the position is a matter of impression and judgement
for the tribunal;
however, the tribunal must recognise that it should have regard to any
material and reliable evidence that might assist it in fixing just and equitable
compensation, even if there are limits to the extent to which it can confidently
predict what might have been; and it must appreciate that a degree of
uncertainty is an inevitable feature of the exercise. The mere fact that an
element of speculation is involved is not a reason for refusing to have regard
to the evidence;
a finding that an employee would have continued in employment indefinitely
on the same terms should only be made where the evidence to the contrary
(i.e. that employment might have been terminated earlier) is so scant that it
can effectively be ignored.
112. As Elias J said in Software 2000:
‘The question is not whether the tribunal can predict with confidence all that
would have occurred; rather it is whether it can make any assessment with
sufficient confidence about what is likely to have happened, using its common
sense, experience and sense of justice. It may not be able to complete the
jigsaw but may have sufficient pieces for some conclusions to be drawn as to
how the picture would have developed. For example, there may be insufficient
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evidence, or it may be too unreliable, to enable a tribunal to say with any
precision whether an employee would, on the balance of probabilities, have
been dismissed, and yet sufficient evidence for the tribunal to conclude that
on any view there must have been some realistic chance that he would have
been. Some assessment must be made of that risk when calculating the
compensation even though it will be a difficult and to some extent speculative
exercise.’
Submissions
113. We received written and oral submissions from the parties and considered
these carefully in reaching our conclusions.
Conclusions
STATUS
Employment Status (pursuant to s. 230 Employment Rights Act 1996 – “ERA 1996”)
(First Respondent)
Issue 1. Was the Claimant engaged as an employee or worker pursuant to section
230 ERA 1996?
2. Was the Claimant so engaged by the First Respondent or by the Second
Respondent only?
114. It was agreed between the parties that the claimant was employed by the
second respondent. The only issue for the Tribunal was as to whether she
was employed also by the first respondent.
115. We considered the principles in Clark. At the inception of the changed
relationship in October 2014 (when the relationship with IV Capital ceased),
there was no written contract. The arrangements were entirely consistent with
the claimant being employed individually by each respondent to do the work
she did for that respondent and for which she was separately paid by that
respondent. As a matter of administrative convenience the second respondent
issued payslips in his name but it seemed to us, looking at the whole factual
matrix, that it was clear that the claimant had a separate employment
relationship with each respondent.
116. We asked ourselves whether that situation changed when the written contract
was produced in December 2015 and concluded it did not. The contract was
drafted to reflect what was on the payslips but it was a ‘sham’ in the sense
that it did not reflect the underlying agreement between the parties which is
that the claimant had entirely separate obligations to each respondent to
perform entirely separate work in return for payment obligations which resided
solely with each respondent separately in relation to the work they required
the claimant to do. The contract as drafted and signed reflected the
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administratively convenient arrangement which had been made in relation to
the claimant’s payslips without affecting the underlying employment
relationships.
CLAIMS
Whistleblowing – s47B and/or s103A ERA 1996 (Both Respondents)
Detriment and/or Automatic Unfair Dismissal
3. The Claimant relies on protected disclosures against the First Respondent:
(a) The email dated 29 September 2020 to the First Respondent wherein the
Claimant raises health and safety concerns for her, her family and the public at large
relating to Covid-19, and not wanting to breach government guidelines;
(b) The email dated 04 November 2020 to the First Respondent where the Claimant
once again raises the same concern;
(c) The letter of resignation to the First Respondent dated 12 November 2020 where
all the above issues are raised.
4. The Claimant relies on protected disclosures against the Second Respondent:
a) the letter of resignation dated 12 November 2020 that the Claimant sent to the
First Respondent and copied to the Second Respondent where she raised health
and safety concerns for her, her family and the public at large relating to
Covid-19, and not wanting to breach government guidelines.
Issue: Did the Claimant make disclosures of information, as alleged above, which in
her reasonable belief, tended to show that:
(a) a criminal offence has been committed, was being committed or was likely to be
committed to contrary to s.43B(1)(a). The Claimant considered any breach of the
government’s guidelines to be a criminal offence;
…
(c) the health or safety of any individual has been, was being or was likely to be
endangered contrary to s.43B(1)(d). As stated, the Claimant considered that her
health, safety and wellbeing as well as that of her family, and public at large was
potentially being endangered. that they had failed, were failing, and was likely to
continue to fail to comply with a legal obligation to which it was subject such as their
duty of care towards staff, safeguarding employees’ health and not acting
irresponsibly by subjecting them to bullying and harassment in accordance with their
obligations under the Health and Safety at Work Act 1974 and/or the Management of
Health and Safety at Work Regulations 1999, and/or discriminating against them
contrary to the Equality Act 2010 (s.43B(1)(b)).
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117. The first and second disclosures clearly contained information but, whether
the communications were viewed separately or together, it was not
information which tended to show any of the relevant types of wrongdoing.
The first communication is a proposal to carry on with an existing
arrangement and the second communication is a request to comply with the
law, not information which tends to show that there was an existing or
prospective breach of the law, criminal offence or endangerment of health and
safety.
118. The third disclosure contained information and an assertion that there would
be a breach of the law at a time when it was well known that breaches of
lockdown rules could give rise to criminal offences.
119. The first respondent argued that the claimant could have had no reasonable
belief that a criminal offence would be committed if she attended work. The
claimant had not conducted research into the matter and she did not make
reference to a criminal offence in her emails.
120. The claimant told the Tribunal that she believed it would be a criminal offence
for her to attend work during the lockdown. We considered that this was in
accordance with general knowledge and advice available at this point during
the pandemic – that it could be a criminal offence to leave home during
lockdown if an individual did not have a legitimate reason for doing so.
121. Even with the guidance which the first respondent referred her to, we
considered that the claimant could reasonably have believed, given the limited
proportion of her work which required her physical presence, that the test of
necessity was not satisfied. There is clearly a question of degree in cases
where some work can be carried out remotely and some cannot, but it must
be relevant to consider the proportion of work which cannot be carried out
remotely and the importance of the work overall. In circumstances where it
was some 15% of the work which could not be carried out remotely, where the
lockdown was expected to be relatively short, where the work was opening
post and performing filing for the first respondent and where at least some of
that work could have been taken on by the Goldsteins themselves during that
period insofar as they considered there was urgency, we concluded that the
claimant reasonably believed that a criminal offence would be committed.
122. She also, we concluded had a reasonable belief that her health and safety
and that of her partner would be at risk if she travelled to the Goldsteins’
home during a lockdown which had been imposed due to the rise in cases. No
vaccinations were available to the public at this point. Public transport was
perceived by the claimant reasonably to present risks and she reasonably
also received the Goldsteins to present a risk to her given that they did not
always wear masks.
Issue: 6. Were these disclosures made in the public interest?
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123. The question here is in fact whether the claimant reasonably believed the
disclosures were made in the public interest.
124. We considered the Chesterton guidance. It is true to say that the number of
people immediately affected (the claimant and her partner) was small,
however the context was that the rules in question were designed to prevent
exponential spread of a life-threatening virus. The number of people
potentially affected by individual breaches of the rules was in fact very large.
The nature of the interests engaged – the health and safety of the claimant,
her partner and other members of the public - was of the highest importance.
Although we did not conclude that the first respondent was deliberately
endangering the claimant’s safety, we concluded that he could not reasonably
believe it was necessary for her to attend his home during the November
2020 lockdown and that he was prioritising his own convenience over her
more significant concerns. So although the first respondent was not a large or
high profile employer, we concluded that the claimant had a reasonable belief
that her disclosures were in the public interest.
Issue: 7. Were the Claimant’s disclosure made in accordance with s. 43C ERA?
125. We concluded that the first respondent was the claimant’s employer and it
follows that her disclosures were protected disclosures.
Issues 8. Was the Claimant subjected to the following detriments by the First
Respondent as a result of the protected disclosures?
(a) Being pressured to attend the workplace and put herself, her family and others
at risk in September, October and November 2020 (relevant protected disclosure is
Para 3(a) above);
126. We concluded that there was no protected disclosure at this stage so the
claimant could not have been subjected to a detriment as a result of any such
disclosure.
Issue: (b) Being critical of the Claimant’s work by referring to the quality of work
being “lower” than usual; that they were not getting the “level of support” expected
and a veiled threat in the event that she did not comply, as set out in the email of 5
November 2020 (relevant protected disclosures are Para 3(a) and (b) above);
127. This claim fails for the same reason, that there had been no protected
disclosure at that point.
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Issue (c) The actions of the First Claimant resulted in the decision to dismiss on 12
November 2020 (resignation) which constitutes a detriment relevant protected
disclosures are Para 3(a) and (b) above);
128. Since we found that the resignation email was the only protected disclosure,
we did not have to consider this claim further.
Issue (d) Being accused of mischaracterising reality and making untrue statements
by letter dated 12 November 2020 (relevant protected disclosures are Para 3(a), (b)
and (c) above);
129. In this letter the first respondent was responding to the account the claimant
had given of events which he disagreed with. The claimant’s email had made
a number of accusations against the first respondent and his wife which the
first respondent understandably took issue with. The first respondent correctly
understood that the claimant was seeking to pursue legal action against him.
He told us he wanted to be on the record as not accepting her allegations.
130. We concluded that this could not properly be regarded as a detriment by the
claimant. The reasonable employee would expect that her employer might
disagree with allegations she was making. The tone of the response did not
seem to us to go beyond what would reasonably be expected in such a
defence so as to make it a detriment. Had the first respondent used more
intemperate language than he did, it might have crossed the line.
131. We did not uphold this claim.
Issue: (e) Demanding that the Claimant also resigns from her post with the Second
Respondent as set out in his email of 13 November 2020 (relevant protected
disclosures are Para 3(a), (b) and (c) above) and/or encouraging, pressurising and
inducing the Second Respondent to terminate the Claimant’s employment;
132. The first respondent did tell the claimant she should resign from her post with
the second respondent and we considered that he was at the very least
encouraging the second respondent to terminate the claimant’s employment.
Both respondents believed at this point that the second respondent was the
sole employer and , it appears from the first respondent’s correspondence,
wanted the claimant to resign in order to limit any liability they might have to
her.
133. This was clearly something which the claimant reasonably considered put her
at a disadvantage since she of course wished to retain her role with the
second respondent at time when a new job was likely to be difficult to find.
134. There seemed to us to be ample facts to establish a prima facie case that the
first respondent behaved in this way because of the protected disclosure. He
told the Tribunal that he felt he had walked into a legal trap which had been
set for him and had been set up. He made efforts as a result to reduce or
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extinguish any liability, including any liability which might arise from the
protected disclosure which the claimant had made.
135. The first respondent did not satisfy us that his behaviour was not materially
influenced by the protected disclosure. In effect his evidence was in terms
that he was seeking to extricate himself from the legal trap represented by the
claimant’s email of resignation.
136. We upheld this claim.
Issue: (f) Being accused of unprofessional conduct; malingering with respect to her
sickness absence and threatened with causing potential damage and loss to the
business in his email of 19 November 2020 (relevant protected disclosures are Para
3(a), (b) and (c) above);
137. We considered that a reasonable employee would consider herself at a
disadvantage in what appeared to be an insinuation that she had produced a
fake medical certificate (essentially an allegation of malingering) and in
respect of the tone of this email. The claimant had not simply walked off the
job as alleged; she was unwell, and to accuse her of unprofessional behaviour
was unfair. It would have been perfectly appropriate for the first respondent to
politely and even firmly ask the claimant to engage in a handover once she
was well but this email went significantly beyond such a reasonable request.
The reference to reserving his position on matters going forward was vague
and intimidating and we considered intended to be so. We concluded that
there was a detriment.
138. We considered that what was going on in this email was much the same as
what was going on in respect of the previous detriment. The first respondent
was angry about the ‘trap’ he felt the claimant was getting and was looking to
scare her off from bringing any claims, including claims connected with her
protected disclosure, which we concluded played a material role in the first
respondent’s decision to send an email in these terms.
139. We upheld this claim.
Issue (h) Failing to pay her wages, notice pay and holiday pay (relevant protected
disclosures are Para 3(a), (b) and (c) above);
140. These sums were not paid to the claimant when they were owed, as the first
respondent accepted. That was clearly a detriment.
141. The first respondent’s explanation for not paying the sums owed at the time
was that he felt the claimant had wronged him by walking off and been hostile
to him. He believed she was not due her notice pay. He did not initially
understand the legal position. Later he said that he tried to settle her claims
and felt he did not get a reasonable response. He was asked why he did not
pay for the claimant’s notice period, given that she had resigned with notice
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(albeit being unwell during that period) and he said that he was not a lawyer
but felt, as a businessman, that she was not entitled to the money. Ultimately
he paid the sums shortly before the hearing he said because it was suggested
that he should reduce the list of issues to be decided.
142. It was clear to the Tribunal that the sums were not paid, as the first
respondent said, because he felt the claimant had wronged him by resigning
and it was clear that he felt the things she had said in her resignation email
were ‘hostile’ to him. That of course included, significantly, the protected
disclosure. We were satisfied that the protected disclosure played a material
role in the first respondent’s decision not to pay these outstanding sums to the
claimant until shortly before the full merits hearing.
143. We upheld this claim.
Issue: 9. Was the Claimant subjected to the following detriments by the Second
Respondent as a result of the protected disclosure at Para 3(a) above?
(b) Failing to pay her wages, notice pay and holiday pay;
144. We note that the second respondent had not paid the claimant’s wages for
some time before the protected disclosure. The disclosure was not a
disclosure relating to anything the second respondent had done and we saw
no evidence at all that suggested he resented the disclosure. The second
respondent throughout was saying he did not have cash to pay the claimant
and we concluded that this was the reason throughout for not paying the
sums owed to the claimant. He either genuinely had difficulties with cash flow
or preferred to spend his money on other things.
145. We did not uphold this claim.
Issue: 11. In determining whether the Claimant was automatically unfairly dismissed
by the First and Second Respondents contrary to s103A, was the reason or principal
reason for her dismissal that she had made the alleged protected disclosure(s)?
Health & Safety - s.44 and/or s.100 ERA 1996 (Both Respondents)
146. The protected disclosure we found occurred occurred in the course of the
claimant’s resignation email and none of the detriments we found predated
the resignation. It therefore follows as a matter of chronology and causation
that the reason or principal reason for the claimant’s constructive dismissal by
the first respondent cannot have been the protected disclosure.
147. We did not uphold this claim.
148. We return to the issue of whether the claimant was automatically dismissed
by the second respondent below.
Detriment and/or Automatic Unfair Dismissal
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Issue: Did the Claimant bring to the Respondents’ attention, by reasonable means,
circumstances connected with her work which she reasonably believed were harmful
or potentially harmful to health or safety (s.44(c) and/or s.100(c) ERA 1996)?
149. We considered the emails of 29 September and 4 November 2020. The
claimant was in essence saying that if she travelled to work the two
households would be exposed to one another’s germs and any that the
claimant picked up travelling by public transport.
150. Being at the first respondent’s home was clearly a circumstance connected
with the claimant’s work.
151. The first respondent argued that the danger was not connected with the
claimant’s work and that she had general concerns about covid which were
restricting her movements. Insofar as the risk related to travel to work, an
employer could not be held liable for dangers presented by travel to the
workplace.
152. We considered that this was a misunderstanding of the statutory protection.
The section is not concerned with ascribing liability to an employer for the
outcome of dangerous conditions; it is simply protecting from repercussions
the employee who raises concerns about dangers. In those circumstances,
we could see no reason why, reading the statute purposively, it would not
cover circumstances of danger connected with travelling to work. Some
examples might be a female nightclub worker who raises a concern about
having to travel home in the small hours of the morning or an employee who
points out a dangerous paving stone outside the employer’s premises. An
employee who reasonably raises concerns about dangers connected with
work in this broader sense is entitled to protection from detriment or dismissal.
153. Given the state of the pandemic in November 2020 and the lack of a vaccine
generally available to the public, we concluded that the claimant reasonably
believed that the circumstances were harmful or potentially harmful to health
and safety.
154. The claimant sent two perfectly polite emails. We had no doubt that she used
reasonable means to bring the matter to the first respondent’s attention.
Issue: 13. Did the Claimant ever refuse to return to her place of work? If so, was the
Claimant’s refusal to return to her place of work undertaken in circumstances of
danger which she reasonably believed to be serious and imminent and which she
could not reasonably have been expected to avert, in accordance with s44(1A)(a) /
s100(1)(d)?
155. In her email of 4 November 2020, the claimant did refuse to return her place
of work after 5 November 2020.
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
42
156. Were there circumstances of danger which the claimant reasonably believed
to be serious and imminent? The facts of the pandemic at that time
undoubtedly presented circumstances of danger.
157. The first respondent suggested that the circumstances were similar to those in
Rodgers and the claimant could not have had a reasonable belief that the
circumstances of danger connected with attendance at her workplace were
serious and imminent. We did not agree with that analysis. Unlike the claimant
in Rodgers, the claimant had concerns that related to the specific
circumstances of her employment: the risks presented by travelling to the
premises in public transport and the risks presented by the lack of social
distancing and mask wearing by the Goldsteins in particular. The danger was
one she could reasonably believe to be serious in circumstances where a
lockdown was commencing and the government was requiring people to stay
at home to avoid exposure to the virus where possible. There were no
vaccines available to the general public and case numbers were rising rapidly.
The danger was imminent because the claimant was being required to attend
work during the lockdown. She could not avert the dangers herself, although
there were some steps she could take to mitigate the risks such as wearing a
mask on public transport.
158. We accept that some people would not have regarded the circumstances as
ones of serious and imminent danger. Responses to the pandemic varied
greatly depending on people’s individual circumstances and personalities and
vulnerabilities. There is a range of reasonable responses to the perception of
danger in these circumstances. Given the circumstances at the time and the
information available to her, we consider that the claimant had an entirely
reasonable belief that the danger was a serious and imminent one.
Issue: 14. If the Claimant did refuse to return to her place of work, was her refusal to
return to her place of work an appropriate step undertaken in circumstances of
danger which she reasonably believed to be serious and imminent to protect herself,
her family and the public from the danger in accordance with s44(1A)(b) /
s100(1)(e)?
159. We considered that the step was a reasonable one. The claimant was
weighing up a danger she reasonably believed was serious against a
requirement by the first respondent to attend work at his home to carry out
tasks which were not of critical importance in terms of timing and which
represented a relatively small part of her overall duties.
Issue: 15. Did the Claimant suffer detriments as result of carrying out the above
activities – the detriments relied on are the same as those for the whistleblowing
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
43
claims set out at Para 5 (a) – (i) above for the First Respondent, and Para 6 (a) (c)
above for the Second Respondent?
(a) Being pressured to attend the workplace and put herself, her family and others at
risk in September, October and November 2020
160. As a matter of causation, it was clear to us that the first respondent pressured
the claimant to come into work because he wanted her to carry out work in his
home for his convenience, not because she raised health and safety
concerns. This complaint is logically backwards. The claimant raised health
and safety concerns and ultimately refused to attend work because the first
respondent was requiring her to attend work.
161. We did not uphold this claim.
Issue: (b) Being critical of the Claimant’s work by referring to the quality of work
being “lower” than usual; that they were not getting the “level of support” expected
and a veiled threat in the event that she did not comply, as set out in the email of 5
November 2020 (relevant protected disclosures are Para 3(a) and (b) above);
162. We concluded that the reason the first respondent complained about the
quality of the claimant’s work was because she was refusing to come into
work. He had not previously raised any issue with her. The whole tone and
import of this email was that the first respondent was dissatisfied with the
claimant saying she would not continue to attend work during the lockdown.
There was a ‘threat’ in the sense that there was a suggestion that the first
respondent had not been obliged to continue to pay the claimant at her
existing rate with the implication that that situation might not continue if the
claimant did not attend work. The whole intention of the email was to
persuade the claimant to change her decision not to attend work.
163. We concluded that there was a detriment because a reasonable employee
would feel that she had been subjected to a disadvantage in having
performance concerns raised in this way. It was not the claimant’s fault that
she had been unable to provide certain kinds of support during parts of the
pandemic and so it was unfair to use that fact and a veiled threat to reduce
her pay to pressure her into attending work during a lockdown.
164. We upheld this claim.
Issue (c) The actions of the First Respondent resulted in the decision to dismiss on
12 November 2020 (resignation) which constitutes a detriment relevant protected
disclosures are Para 3(a) and (b) above);
165. Our decision that the first respondent was the claimant’s employer means that
this issue is not appropriately considered as a detriment complaint.
Issue: (d) Being accused of mischaracterising reality and making untrue statements
by letter dated 12 November 2020 (relevant protected disclosures are Para 3(a), (b)
and (c) above);
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
44
166. We found when considering this issue in the connect of the public interest
disclosure claims that this was not a detriment and we do not uphold this
claim.
Issue: (e) Demanding that the Claimant also resigns from her post with the Second
Respondent as set out in his email of 13 November 2020 (relevant protected
disclosures are Para 3(a), (b) and (c) above) and/or encouraging, pressurising and
inducing the Second Respondent to terminate the Claimant’s employment;
167. As we discussed in relation to this issue in the context of the public interest
disclosure claims, the first respondent felt wronged by what the claimant had
done and concerned he was being set up for a legal claim. We concluded that
a material part of the course of events that led to that feeling on the first
respondent’s part (and to the actions he took as a result) was the claimant
raising health and safety concerns and refusing to attend work during the
lockdown period.
168. We upheld this claim.
Issue: (f) Being accused of unprofessional conduct; malingering with respect to her
sickness absence and threatened with causing potential damage and loss to the
business in his email of 19 November 2020 (relevant protected disclosures are Para
3(a), (b) and (c) above);
169. For similar reasons we upheld this claim. This was part of the first
respondent’s response to feeling wronged and set up by the claimant due to
the sequence of events starting with her raising concerns about attending his
premises.
Issue: (h) Failing to pay her wages, notice pay and holiday pay (relevant protected
disclosures are Para 3(a), (b) and (c) above);
170. Again, for similar reasons we upheld this claim. This was part of his response
to feeling wronged and set up by the claimant due to the sequence of events
starting with her raising concerns about attending his premises.
Constructive Unfair Dismissal – ss 95 - 96 Employment Rights Act 1996) - (First
Respondent only)
Issue: 17. Did the First Respondent act without reasonable and proper cause, act in
a manner calculated or likely to destroy or seriously damage the mutual trust and
confidence between employer and employee, in the following respects :
(a) Being pressured to attend the workplace during a lockdown, if this period was a
time of national lockdown, and/or to break the law;
(b) Being forced to attend work despite it not being essential for her to do so;
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
45
(c) Requiring her to put herself and family at risk by travelling to / from work;
(d) Being dismissive of her concerns and being treated with hostility;
(e) Feeling disrespected despite dedicated service of more than 11 years;
(f) The dismissive email of 05 November 2020.
18. Did the First Respondent’s conduct, as determined by the Tribunal, amount to
fundamental and repudiatory breach of the implied contractual term of trust and
confidence?
171. We considered whether the first respondent’s actions were calculated or likely
to destroy the relationship of trust and confidence. We did not consider that
his actions were calculated to have that effect. His interpretation of the
government guidance was, we concluded, wrong. It was not in any real sense
‘necessary’ for the claimant to come into work during the lockdown because
the majority of her work could be done remotely, the lockdown was only
anticipated to be for a limited period and there was no evidence that the work
was time critical. Travelling on the underground at this time clearly exposed
the claimant and her family to a heightened risk; such travel was being
discouraged by the government unless necessary.
172. Was the conduct likely to destroy trust and confidence? We considered that it
was. The claimant was being pressed to attend work during an ongoing public
health emergency because it would be more convenient to the first
respondent for her to do so. Of course it is the part of the role of a personal
assistant to relieve his or her employer of administrative tasks but to insist the
claimant attended work when the first respondent was aware of her
(reasonable) concerns to avoid what seemed to us to be only moderate
inconvenience was likely to make the claimant feel that she was not valued.
The message was that the first respondent valued her health and safety less
than his own convenience. The first respondent had been made aware of her
concerns about public transport but had taken no action to assist her, for
example by offering to fund a taxi.
173. The first respondent’s letter of 5 November 2020 suggested that there was
some flexibility but did not relax the requirement she attend work despite the
changed circumstances of the lockdown. Overall there was a lack of empathy
and flexibility on the first respondent’s part. He unreasonably raised the
concern about the quality of support and suggested that the claimant’s pay
would not be protected unless she continued to attend his premises. Her
concerns were dismissed. The claimant rightly considered that this was a
disrespectful way to treat an employee who had given good service for over a
decade.
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
46
174. Did the first respondent have reasonable and proper cause for what he did?
We concluded that he did not. His interpretation of the guidance was wrong in
our view and was unreasonably wrong, distorted by his desire that the
claimant should attend work and save him from some inconvenience. It was
not reasonable to insist the claimant attend work during the November 2020
lockdown.
Issue: 19. If so, did the Claimant resign in response to the alleged fundamental and
repudiatory breach/es of contract?
175. It was not suggested that there was some alternative reason for the claimant’s
resignation and it was clear from the evidence that she resigned because of
the course of conduct by the first respondent, in particular the insistence that
she attend his premises during the lockdown.
Issue: 20. If so, did the Claimant delay too long before resigning such that he had
waived any such breach?
176. There was no appreciable delay; the claimant resigned within days and there
was no waiver of the breach.
Issue: 21. If the Claimant was constructively dismissed, was such dismissal unfair?
177. No potentially fair reason for the dismissal was put forward by the first
respondent and we could see none on the evidence.
Issue: 16. Was the Claimant automatically unfairly dismissed by the First and
Second Respondents as a result of the above activities (s.100 ERA 1996)?
178. Was the reason or principal reason for the repudiatory breach of contract by
the first respondent the fact that the claimant had brought to his attention the
health and safety concerns and/or the fact that the claimant refused to return
to work? We concluded that it was the latter. It was the claimant’s email
saying that she would not continue to attend work during the lockdown which
provoked the first respondent to send his email wrongly insisting that she
should attend in terms which we found breached the implied term of trust and
confidence.
179. In those circumstances we upheld the claimant’s complaint of both ordinary
unfair dismissal against the first respondent and her complaint of
automatically unfair dismissal under section 100 ERA 1996.
180. We return to the issue of whether the second respondent automatically
unfairly dismissed the claim from her separate employment with him below.
Unfair Dismissal – s94 Employment Right Act 1996 – (Second Respondent only)
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
47
Issue: 32. Was the Claimant’s employment terminated by the Second Respondent?
181. Given our finding that the claimant was separately employed by each
respondent, her resignation from the first respondent’s employment did not
terminate her employment with the second respondent and in fact the second
respondent continued to treat the claimant as an employee. Although the
second respondent applied for the claimant’s P45 in March 2021, he took no
steps to inform the claimant that he was dismissing her and her dismissal was
therefore effective from the date she became aware of it, ie not earlier than 11
May 2021 when she was informed by HMRC of the P45.
Issue: 33. If so, what was the reason for the dismissal and which date did the
dismissal take effect?
182. No potentially fair reason was put forward for the claimant’s dismissal. The
second respondent simply maintained that the claimant had resigned. His
erroneous and unreasonable belief that the claimant had resigned, even if
genuine, would not be a fair reason for dismissal. We considered that the
second respondent may not have had a need for a PA by this point and his
financial affairs probably made it undesirable for him to keep paying a PA he
did not really need but we were unable to find that the dismissal was by
reason of redundancy. The second respondent was adamant that the claimant
had resigned and we accepted that he was genuinely confused as to what the
proper analysis of the situation was.
183. It follows that the dismissal by the second respondent was unfair, there being
no potentially fair reason for it, It was not however automatically unfair as the
second respondent’s reason or principal reason was neither the claimant’s
protected disclosure nor any of the actions taken by the claimant in relation to
health and safety.
Issue: 34. Did the Second Respondent consider and/or offer suitable alternative
employment for the Claimant?
184. We heard no evidence on this point given the second respondent’s position
that the claimant had resigned.
Issue 35. Was the Claimant’s dismissal procedurally unfair?
185. The second respondent followed no procedure at all and the claimant’s
dismissal was therefore procedurally as well as substantively unfair.
Polkey
186. So far as the first respondent was concerned, we carefully considered his
evidence that he was now carrying out the claimant’s work himself. The
submission was made on his behalf that he would have dispensed with the
claimant’s services by early 2021.
Case Numbers: 2201510/2021, 2201511/2021 and 2203754/2021
48
187. We noted however that the claimant had been employed for some 11 years to
carry out the first respondent’s personal admin. He is a wealthy individual who
understandably preferred to delegate a lot of this work. He clearly valued the
convenience and appears to have had no criticism of the claimant’s
performance. His insistence that the claimant attended his premises seemed
to us to demonstrate how little he wished to carry out tasks such as opening
the post.
188. Had the claimant continued to attend and not resigned, the first respondent
would have had no reason to investigate whether he could perform some
tasks himself using online translation tools or perform some transactions in
relation to his French property digitally. It seemed to us that there was a great
difference between not replacing the claimant after she left and actively
dismissing her had she not resigned. In the former case, we could well see
how the first respondent might have hesitated to employ someone new and
unknown during an ongoing pandemic and decided instead to investigate
whether he could undertake the claimant’s tasks himself. In the latter case, we
could see no reason why the first respondent would not have continued to
enjoy the claimant’s services, which relieved him of a substantial admin
burden.
189. We concluded that the claimant would not have been dismissed by the first
respondent during the period for which she has claimed compensation ie up
to April 2023.
190. So far as the second respondent is concerned, we did not hear evidence
specifically directed to this issue and we concluded it would be appropriate to
hear further evidence and submissions at the remedy hearing.
Employment Judge
Joffe
London Central Region
12/11/2022
Sent to the parties on:
14/11/2022
For the Tribunals Office
---
Case Number: 2201510/2021
2201511/2021
2203754/2021
1
EMPLOYMENT TRIBUNALS
Claimant:
Ms M Herve
Respondents:
Mr A Goldstein (1)
Mr V Sareen (2)
Upon application made by the second respondent by email dated 10 April 2022 to
reconsider the judgment dated 28 March 2022 under rule 71 of the Employment
Tribunals Rules of Procedure 2013, and representations being submitted in
response on behalf of the claimant, the original Judgment is varied. A hearing is
not necessary in the interests of justice.
JUDGMENT FOLLOWING A
RECONSIDERATION REQUEST
The second respondent concedes that he owes arrears of wages to the claimant.
It is agreed that the relevant tax has been paid. He is ordered to pay to the claimant
the sum of £13,573.09 in respect of arrears of wages from the period 1 March 2020
to 12 November 2020.
Employment Judge Davidson
Redated 26 April 2022
JUDGMENT SENT TO THE PARTIES ON
26/04/2022.
FOR EMPLOYMENT TRIBUNALS
Notes
- Approved By
- Employment Judge Joffe
- Date
- 26 July 2024