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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Reid-Blair v London Borough Of Haringey [2003] UKEAT 1134_02_1803 (18 March 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/1134_02_1803.html Cite as: [2003] UKEAT 1134_02_1803, [2003] UKEAT 1134_2_1803

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APPEARANCES

 

For the Appellant	MR A CHOUDHARY (of Counsel) Instructed by: Messrs Phoenix Nova Solicitors Ranan House 456 Kingsland Road London E8 4AE
For the Respondent	MS I A SIMLER (of Counsel) Instructed by: London Borough of Haringey Corporate Legal Services Alexandra House 10 Station Road Wood Green London N22 7TR


 


HIS HONOUR JUDGE PETER CLARK

1. We have before us for ex parte Preliminary Hearing both an appeal by the Applicant, Sandra Reid-Blair and a cross-appeal by the Respondent, the London Borough of Haringey, against a decision of the London (Central) Employment Tribunal, chaired by Mr P R K Menon, promulgated with Extended Reasons on 15 August 2002.
2. The Tribunal resolved the Applicant's various complaints in the following way:

(1) her complaint of constructive unfair dismissal by the Respondent was upheld; but

(2) she was awarded nil compensation;

(3) her complaint of race discrimination was dismissed on its merits;

(4) her complaint of sex discrimination was found to be time-barred and dismissed accordingly;

(5) her complaint of unlawful deductions from wages was upheld, as was;

(6) her complaint that holiday pay was unlawfully withheld by the Respondent.

3. Against the second and third of those findings the Applicant appeals; against the fifth and sixth findings the Respondent cross-appeals.

Factual Background

4. The Applicant commenced employment with the Respondent as an Administrative Assistant at Scale 5 on 4 June 1990. Between October 1995 and April 1997 she worked part-time for the Respondent for 17½ hours per week. On 7 August 1996 she took up part-time work as a Carer for the Elderly with an agency known as Helping Hands. As part of her duties she was assigned to provide care for an elderly 95 year old female referred to as ES, who was also a client of the Respondent's Elderly and Special Needs Department.
5. On 1 April 1997 the Applicant was redeployed to the Elderly and Special Needs Department under the line management of Peter Mason, the Respondent's Business Service Manager, and was paid the top point of Scale 5.
6. On 8 June 1998 her employment with Helping Hands was terminated. However, she continued to maintain close contact with ES.
7. In August 1998 Mr Mason was required to identify financial cuts which could be made. He identified the Applicant's post as suitable for deletion. His proposal to this effect was accepted and implemented so that in due course the Applicant became a redeployee and was sent details of vacancies within the Respondent.
8. On 1 November 1998 ES moved into the Applicant's home and remained living with her from then until she was placed in a residential home by the Respondent in May 1999.
9. Earlier, in November 1998 Helping Hands wrote to Haringey expressing concern about the Applicant's involvement in the financial affairs of ES, ES having granted the Applicant Power of Attorney.
10. On 22 March 1999 the Applicant had an accident and was absent from work from that date. She ceased to receive pay because the Respondents took the view that she had failed to comply with their sickness reporting procedures.
11. On 13 May 1999, whilst still absent through sickness, she was suspended in connection with the allegations relating to her conduct of ES's financial affairs.
12. On 1 April 1999 her post was deleted. An offer of alternative employment was made. That offer was contained in a letter which provided for signature by the Applicant to confirm her acceptance. The Applicant never signed that letter.
13. An investigation ensued into the question of the Applicant's relationship with ES in about May 1999. There was also a police investigation which resulted in no criminal action. The police inquiry ended in late March 2000.
14. On 13 April 2000 the Respondent asked the Applicant to attend an investigatory interview on 15 May. On 27 April the Applicant wrote saying she would not be able to attend due to ill health. On 22 May the Respondent asked her to attend a meeting on 8 June but on the previous day the Applicant telephoned to say that she would not attend. On 24 July the Applicant was asked to attend a meeting on 2 August – again cancelled due to ill health. Finally, on 19 August 2000, the Applicant resigned by letter in which she contended that she had been constructively dismissed.

The Appeal

Race Discrimination

15. The Tribunal expressed their conclusions as to this part of the claim at paragraph 52 of their reasons. There were three allegations said to amount to direct racial discrimination by the Respondent. The first related to the length of her suspension without pay, secondly, the Applicant's treatment at the hands of her superior Ms Lee, and, thirdly, a suggestion that she had been replaced by a white employee, Annette Scott.
16. Mr Choudhary, in advancing this part of the Applicant's appeal, submits that at paragraph 52 the Tribunal have failed to give what Sedley LJ has recently described in Tran as 'Meek compliant' reasons, in accordance with the guidance which His Lordship gave in Anya v University of Oxford.
17. We have considered that submission in relation to each of the three discreet complaints raised under this head of the Applicant's claim. We are not persuaded that this ground of appeal raises any arguable point of law. It seems to us that the Tribunal were entitled to find as a fact that the Applicant was not replaced by Ms Scott.
18. In relation to the suspension without pay, the Tribunal found that a number of white employees were suspended for long periods, albeit on full pay. The Applicant also would have been suspended pending the investigation into the ES affair with pay had it not been for her failure to comply with the Respondent's sickness reporting procedures.
19. Finally, the question of Ms Lee. The Tribunal characterised her behaviour towards the Applicant as unprofessional; but they were unable to read into what they regarded as a personality clash, less favourable treatment on the grounds of the Applicant's race. That seems to us to be a permissible finding by the Tribunal and one with which this Employment Appeal Tribunal will not interfere.
20. In these circumstances we shall dismiss the Applicant's appeal against the Tribunal's dismissal of the complaint of race discrimination.

Compensation

21. The second matter raised by Mr Choudhary relates to the Tribunal's finding at paragraph 50 (6) of their reasons, that the Applicant was not entitled to any compensation, whether by way of a basic or a compensatory award for the constructive dismissal which they found had occurred.
22. We think there are a number of arguable points which ought to go forward to a full hearing. First, it is not entirely clear to us whether the Tribunal were finding that the Applicant had contributed to the extent of 100% to her dismissal, or whether they were finding that it was not just and equitable to award any compensation under section 123 (1) of the Employment Rights Act 1996, or both. If the former, we would expect there to be clear findings of fact indicating the conduct on the part of the Applicant which was said to be blameworthy and which contributed wholly to the constructive dismissal.
23. In the course of her written submissions Ms Simler has asserted, without there being any express finding of fact by the Tribunal, that the Applicant spent about £120,000 of ES's money on herself and this was admitted. As to precisely how it is said the Applicant was guilty of blameworthy conduct in relation to ES's financial affairs, has not, it seems to us, been spelt out to any degree in the Tribunal's reasons.
24. Mr Choudhary raises additional arguments on the quantum of contribution, if that is what the Tribunal found. He submits that on any view this was not a case for a 100% contribution finding. Again, that is a matter which we think ought to be considered at a full hearing.
25. Accordingly, we shall permit that ground of appeal to proceed.

The Cross-Appeal

26. Turning then to the cross-appeal, Ms Simler raises two matters.

Holiday Pay

27. First, the Tribunal's finding in relation to holiday pay which appears at paragraph 51 (2) of the Tribunal's Reasons. The short point taken is that the Tribunal appear to have confused a possible contractual right for the Applicant to carry forward holiday entitlement into the new holiday year with the provisions of the Working Time Regulations 1998, under which this part of the claim is brought, which Ms Simler submits, arguably correctly, make no provision for the carrying forward of holiday entitlement from one holiday year to another.
28. That point, it seems to us, must go forward to a full hearing.

Unlawful Deductions

29. Secondly, she challenges the Tribunal's finding that the Respondent made unlawful deductions from the Applicant's wages, in that they paid her on Scale 4 between 1 May 1999 and 19 August 2000, in circumstances where there was no agreement between the parties that the Applicant would accept the new job offered on a lower pay scale than that which she had formerly enjoyed.
30. We have considered this submission carefully and as a result of the clear way in which the matter has been put in argument by Ms Simler we are persuaded that there is a point to go forward to a full hearing.
31. At paragraph 50 (4) of their Reasons it is arguable that, in finding the question as to whether the Applicant orally agreed on the telephone to accept the lesser paid post on 22 April 1999 was an irrelevant consideration, the Tribunal confused the requirement for written consent by an employee to a deduction from wages for the purposes of section 13 of the Employment Rights Act 1996, with the simple proposition at common law that a contract can be varied orally as well as in writing.
32. One consideration at the full hearing will be whether the Tribunal has failed to make a material finding of fact, namely whether or not the Applicant orally accepted the lesser paid post on 22 April 1999.
33. Ms Simler has also referred us to a letter written by the Applicant to a manager, Mr Austin and dated 16 February 2000, in which, on the face of it, she clearly and unequivocally accepted the lower grade Service Administration Officer post and that acceptance was in writing, insofar as the Tribunal may be right in saying that writing was necessary.
34. We can see it is arguable that the Tribunal's finding at paragraph 50 (4) (b), that those words in the letter of 16 February cannot be viewed in isolation, is a curious finding when it appears to be an unequivocal acceptance.
35. These are all matters for debate at the full hearing and we say no more about it other than that the point is arguable.
36. It follows that three of the four grounds of appeal and cross-appeal will go forward to a full hearing and we shall hear Counsel on the question of directions for that hearing.
37. Category C. There is an application by Ms Simler on behalf of the Respondent for Chairman's notes of evidence. Mr Choudhary does not accept that Chairman's notes are necessary. We think that they are necessary but to this limited extent. We shall direct that the Chairman be asked to provide his notes of the Applicant's evidence in relation to her admitted conduct in relation to ES's financial affairs, which amounted to a breach of the Respondent's code of conduct. Secondly, we shall direct that evidence to the same effect given by John Austin be transcribed for use at the full appeal hearing.
38. Otherwise, directions will be in the now standard form.