Jersey Employment and Discrimination Tribunal Employment (Jersey) Law 2003 NOTIFICATION OF THE TRIBUNAL S JUDGMENT This award, (subject to the right of appeal to the Royal Court, as set out in the Law) is legally binding and is the final decision of the Tribunal. Each party, if applicable, is responsible for establishing their liabilities with regard to Social Security and Income Tax payments. Applicant: Miss Lucy-Anne Carruthers Respondent: Orchid Care Services Limited Date: 13 January 2017 Before: Mrs Hilary Griffin, Deputy Chairman Representation: Applicant: Respondent In person Advocate Blakeley, Blakeley Legal JEDT Judgment 1
THE TRIBUNAL S JUDGMENT THE DECISION The Tribunal finds that the Respondent: 1. constructively and unfairly dismissed the Applicant; 2. in breach of contract failed to pay to the Applicant a payment in lieu of her notice period; 3. failed to provide the Applicant with itemised pay statements; and 4. failed to provide the Applicant with a copy of her employment terms. THE REASONS 1. A Tribunal hearing ( Hearing ) was convened to consider the Applicant's complaints that: a) the Applicant had suffered a constructive unfair dismissal contrary to Article 61 of the Employment (Jersey) Law 2003 ( Law ); b) in breach of contract, the Respondent had failed to pay to the Applicant a sum to reflect the Applicant's contractual notice; c) contrary to Article 3 of the Law, the Respondent had failed to provide the Applicant with a copy of her terms of employment; and d) contrary to article 51 of the Law, the Respondent had failed to provide the Applicant with itemised pay statements. JEDT Judgment 2
2. The Respondent failed to file a JET2 Response to the above complaints and, despite being given the opportunity to do so, failed to engage in the Tribunal process until shortly before the hearing. Having obtained last minute assistance from its insurers, the Respondent was represented at the Hearing. No directors or employees of the Respondent attended the Hearing. 3. The Hearing was convened in accordance with Article 12 of the Employment and Discrimination Tribunal (Procedure) Order 2016 ('Order'). Article 12 states that a Respondent who has not submitted a JET2 Response may only participate in any hearing "to the extent permitted by the Chairman or Deputy Chairman." Advocate Blakely attended only to take notes and did not make any application for the Respondent to participate in the Hearing. 4. The parties provided me with a file of documents, which included: a) the Applicant's contract of employment signed and dated 20 September 2015; b) the Respondent's Employee Handbook; c) the Applicant's letter of resignation dated 23 September 2016; d) email from the Applicant to MR, director of the Respondent dated 26 September 2016; e) employee health questionnaire dated July 2016; and f) various Respondent policies, including its Moving and Handling Policy and its Loan Worker Policy. Evidence 5. The Respondent worked as a Healthcare Assistant between 1 July 2015 and 23 September 2016 when she resigned, citing a repudiatory breach of contract by the Respondent. She had signed her main terms of employment ( Contract ) JEDT Judgment 3
on 20 September 2015 but was not provided with a copy of the Contract until after the termination of her employment. 6. The Respondent s Moving and Handling Policy and Lone Worker Policy set out in detail the Respondent's responsibilities towards its staff in terms of ensuring their safety while carrying out their roles. The Moving and Handling Policy refers to the Health and Safety at Work (Jersey) Law 1989 and to a number of UK Regulations regarding lifting and moving. 7. The Applicant, who is 20 years old, suffers from Scoliosis, a sideways curvature of the spine. The condition causes the Applicant significant pain and excessive lifting can increase that pain. The Applicant notified the Respondent of her condition when she applied for the role of Healthcare Assistant and told the Respondent that it was likely that her condition would deteriorate over the coming year. The Respondent was therefore aware of the Applicant s condition when it offered her the role. 8. The Applicant gave evidence that, until July 2016, her workload was managed by her Line Manager ( ER ). ER ensured that the Applicant worked shorter shifts and had regular breaks. She ensured that the Applicant was not assigned to work alone with patients who required significant moving and handling. However, according to the Applicant, although ER sought to carefully manage the Applicant's workload, there were instances during this period when the Director ( MR ) made it clear that the Applicant should "get on with the job" and stop complaining. 9. In May 2016, the Applicant's condition started to deteriorate and she suffered increased pain. In July 2016, ER asked the Applicant to complete a new health questionnaire. This amounted to a risk assessment ( Risk Assessment ) which ensured that the Respondent was properly informed of the current state of the Applicant s condition. The Risk Assessment noted that the Applicant could not work 12 hour shifts because of the pain which she suffered. ER wrote some manuscript notes on the Risk Assessment: JEDT Judgment 4
Has only worked with light patients continue to do so. No heavy moving and handling. No lone hoisting. Slide sheets for bed bound clients if staff member need secondary carer. Nb. staff member may require surgery. Close monitoring D/C with Director & Deputy Manager. 10. ER went on annual leave on 29 July 2016 and then left the Respondent's employment. The Applicant gave evidence that immediately upon ER s departure on holiday, MR placed the Applicant at the home of a patient who was heavy and unable to manoeuvre herself without significant assistance ( Patient ). The Applicant gave evidence that she immediately told MR that she would not be able to move the Patient alone. MR told her to "get on with it" as they had no other cover. The Applicant believed herself to have no option but to continue to care for the Patient because to refuse would result in MR reducing or stopping her hours (as had occurred on a previous occasion). 11. The Applicant looked after the Patient from 29 July 2016 until 19 September 2016. The Applicant was firmly of the opinion that, with little difficulty, MR could have allocated the Applicant to other patients who were able to weightbear or who required less moving and handling. 12. The Applicant gave evidence that, despite numerous requests, MR refused to provide the Applicant with the equipment necessary to assist her in moving the Patient. She asked MR for: a) a slide sheet to assist her in sliding the Patient across the bed; b) a fire blanket which would enable her to move the Patient out of bed and down the stairs in the event of a fire; and c) a hoist to help her lift the Patient. JEDT Judgment 5
13. At no point during her period of employment did the Applicant submit a formal grievance but she did raise her anxieties with MR on numerous occasions, requesting equipment, shorter shifts and to be assigned other patients. Her requests were all ignored. 14. On 19 September 2016, the Applicant s condition was causing her significant pain. She was also unwell. She contacted MR to ask her to find alternative cover for her 12 hour shift. MR refused to do so and insisted that MR work the full shift. Four hours before the end of the shift, the Applicant contacted MR by telephone to tell her that she could not continue any longer and to ask MR to arrange cover so that she could go home. MR again refused to do so, stating that there was no cover available. The Applicant herself therefore contacted a colleague, and was quickly able to secure cover and was relieved from her duties. The Applicant gave evidence that MR did not make any attempt to source cover. The Applicant was then signed off sick by her doctor. 15. On 23 September 2016, the Applicant resigned from her position. The emailed resignation letter identified the Respondent s handling of her health and MR s refusal to provide her with the necessary support and equipment as the reason for her resignation. She stated that the final straw was MR s refusal to source cover on 19 September 2016 when the Applicant was suffering a lot of pain from her Scoliosis. This, the Applicant said, demonstrated that the Respondent had no consideration for my health as you hadn t even tried [to contact] anyone else. 16. On 26 September 2016, after her resignation, the Applicant wrote a further email to the Respondent in which she accused the Respondent of failing to pay her Social Security contributions in full. CONCLUSION JEDT Judgment 6
Constructive dismissal 17. As set out in previous Tribunal cases, in order to establish a successful complaint of constructive dismissal, four conditions must be met: a) the employer must be in breach of a contractual term (either an express term or an implied term); b) the breach of contract must be fundamental, amounting to a repudiatory breach of contract; c) the employee must resign in response to the employer's repudiatory breach of contract; and d) the employee must not delay too long in terminating the contract; otherwise the breach may be found to have been waived and the contract affirmed. (See: Robinson v States of Jersey, Department of Education, Sport & Culture (JET 1910-028/05); Oprey v Woolworths plc (JET 2604-085/07); Western Excavating (ECC) v Sharpe [1978] ICR 221; Maclagan v SEB (JET 79/2015). Was there a repudiatory breach of contract? 18. In this case the Applicant submitted that the Respondent was in breach of the implied duty to provide a safe place of work by rostering the Applicant to work with the Patient and refusing to provide the Applicant with the equipment necessary to help her manoeuvre the Patient, 19. It is an implied term of all contracts of employment that an employer will take reasonable steps to ensure the employee s health and safety. This includes providing that employee with a safe system of work (eg. provision of equipment and supervision) and protecting the employee from unnecessary risk of injury. The standard of care depends on what is deemed to be JEDT Judgment 7
reasonable conduct for a person in the employer s position, which will in turn depend upon: a) the nature of the relationship between the parties; b) whether the risk of injury is reasonably foreseeable; c) the significance of the risk of injury; d) the seriousness of the consequences for the employee if that injury should occur; and e) the cost and practicability of preventing the risk (see Walker v Northumberland County Council [1995] IRLR 35). 20. In the Court of Appeal case of Charlton v Forrest Printing Ink Co Ltd [1980] IRLR 331, Lord Denning M.R quoted from the Wagon Mound No. 2 case (1967) and confirmed that where an employer is aware of a specific risk to an employee, the employer has a duty to take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. 21. In line with the Respondent s obligations to provide the Applicant with a safe system of work and to protect her from unnecessary risk of injury, ER conducted risk assessments and took appropriate steps to ensure that: a) the Applicant would not be placed with patients who would require significant moving and handling; and b) where necessary, the Applicant would be provided with appropriate equipment and support. JEDT Judgment 8
22. The evidence shows ER s management of the Applicant to have been commendable. However, upon ER s departure, the Respondent s management of the Applicant became woefully inadequate. Based on the evidence, it was clear that from 29 July 2016 until 19 September 2016, and contrary to the findings of the Risk Assessment, the Respondent: a) continually assigned the Applicant to the Patient who was heavy and required significant moving and handling; b) placed the Applicant on long 12 hour shifts; c) failed to provide support to the Applicant in the form of a second carer; d) failed to provide the necessary equipment to the Applicant to assist her in safely moving the Patient; and e) refused to place the Applicant with other patients whose needs did not require the same level of heavy moving and handling. 23. I have taken into account the test as set out in Walker and the guidance provided in Charlton. I have noted that the Respondent was not only aware of the Applicant s condition but that it had also undertaken the thorough Risk Assessment which it then ignored following the departure of ER on 29 July 2016. I have also noted that MR s refusal to abide by the findings of the Risk Assessment continued over a prolonged period; this was not a one-off occurrence but a sustained strategy which knowingly placed the Applicant at risk of injury on a daily basis. 24. There is no doubt that, in the care sector, there is a heightened risk of injury to employees due to the increased moving and handling of patients by employees. Employers in this sector must therefore ensure that they take reasonable steps to minimise (and if possible) eliminate the risks involved. In this case, the Respondent properly undertook the Risk Assessment, but then JEDT Judgment 9
failed to comply with its own findings. Furthermore, the Respondent had already shown itself to be able to allocate work in accordance with the Risk Assessment but from 29 July 2016, there would appear to have been a deliberate decision to stop that careful allocation of work. 25. Based on the evidence, I was satisfied that the Respondent was in breach of the implied duty to provide the Applicant with a safe system of work and to protect the Applicant from the risk of unnecessary injury. 26. I then considered whether the breach in question was fundamental, thus amounting to a repudiatory breach of contract. The Tribunal has considered what constitutes a repudiatory breach of contract on previous occasions (see Maclagan v States Employment Board JET 79/2015; Western Excavating (ECC) Ltd v Sharp [1978] ICR 221). In short, unless the breach of contract is significant and either goes to the root of the contract or shows that the employer no longer intends to be bound by an essential express or implied term, that breach will usually fall short of being repudiatory. Simply acting in an unreasonable manner is not itself sufficient grounds for a successful complaint of constructive dismissal. 27. In this case, I noted in particular that: a) the nature of the work in the care sector places carers at an increased risk of injury thereby placing a greater responsibility on employers to ensure that proper equipment, training and support is provided; b) the Respondent was aware of a specific risk to the Applicant and chose to ignore its own Risk Assessment, thereby knowingly placing the Applicant at increased risk of injury; and c) it placed the Applicant at risk of injury for a prolonged period and on a daily basis. JEDT Judgment 10
28. The evidence strongly pointed to MR s behaviour as being more than unreasonable. This was a deliberate decision to ignore both the Applicant s scoliosis and the findings of the Risk Assessment. MR took the conscious decision to change ER s careful management of the Applicant s workload. 29. Based on the facts of this case, I concluded that the Respondent s prolonged and deliberate failure to provide the Applicant with a safe system of work was a significant breach in these circumstances and struck at the root of the contract, thereby amounting to a repudiatory breach of contract. Resignation and affirmation of contract 30. The Applicant s resignation letter clearly stated that she had resigned because of the Respondent s failure to look after the Applicant s health. There is no doubt from the evidence that the Applicant resigned in response to the Respondent s repudiatory breach of contract. 31. I then considered whether the Applicant delayed too long in resigning, thereby affirming her contract and waiving the breach. It was clear from the Applicant s evidence that she feared for her job. She unsuccessfully raised her concerns with MR on many occasions. The Respondent s breach was ongoing; every time the Respondent sent the Applicant to the Patient s home without support or appropriate equipment, the Respondent was in breach of the implied duty to provide a safe system of work. 32. Based on the evidence, I am satisfied that the Applicant did not wait too long before resigning and consequently, she did not affirm the contract or waive the Respondent s breach. Fairness of the Dismissal 33. I then considered the fairness or otherwise of the Applicant s dismissal in accordance with Article 64 of the Law. I considered whether, in accordance with Article 64(1)(a) of the Law, the principal reason for the Applicant s JEDT Judgment 11
constructive dismissal fell within any of the five potentially fair reasons for dismissal. 34. The Respondent put forward no argument to suggest that the Applicant's dismissal fell within one of the five potentially fair reasons for dismissal. Having considered Article 64(1) of the Law, I did not consider that the Applicant s constructive dismissal, borne out of the Respondent s breaches, fell within the scope of this Article. 35. The Tribunal therefore concludes that the Applicant's dismissal was unfair in the circumstances. 36. The Applicant is entitled to compensation for her unfair dismissal amounting to 8 weeks pay. The Applicant s JET1 states that her weekly pay was 250 per week. The appropriate calculation of the Applicant s compensation is: 250 x 8 = 2,000 37. In accordance with Article 77F(3) of the Law the Tribunal may reduce the Applicant s award of compensation by such amount as it considers to be just and equitable having regard to certain circumstances as are set out under Articles 77F(4) to 77F(10). The Respondent s failure to engage properly in the Tribunal process does not remove my obligation to consider a reduction. 38. In this case I considered Article 77F(10) of the Law, that the Tribunal may reduce an award in any circumstances in which it considers it just and equitable to do so. In Wolfson v Trident Trust Company Limited [2014] JRC 228, Sir Michael Birt, then Bailiff of Jersey, referred to this provision as a sweep-up provision which enables [the Tribunal] to take into account any other circumstances which would render it just and equitable to reduce the award. JEDT Judgment 12
39. I considered whether it was reasonable in the circumstances for the Applicant not to submit a formal grievance prior to resigning and claiming constructive dismissal. Although not provided to me in evidence, it was clear from the Employee Handbook that the Respondent did have a Grievance Procedure in place. 40. I noted in particular that: a) as a general policy (and as set out in the JACS Disciplinary and Grievance Code of Practice) employees should seek to submit a formal grievance in order to give their employer an opportunity to remedy the situation. Of course, in cases where there has been a one-off repudiatory act, the submitting of a grievance before resignation may not be appropriate. However, in circumstances such as in this case, where the Applicant continued to work for nearly two months, the Tribunal would usually expect an employee to submit a formal grievance; b) the Applicant raised her concerns informally with MR on many occasions; c) the Applicant feared that MR would withhold work from her if she refused to care for the Patient; d) MR expressed dissatisfaction with ER s method of managing the Applicant s Scoliosis at work; and e) the change in the rota occurred abruptly (and apparently deliberately) as soon as ER left the Respondent. JEDT Judgment 13
41. Based on these points, I concluded that, although an unreasonable failure to file a grievance may result in a reduction under Article 77F(10), on the facts of this case: a) the filing of a formal grievance was unlikely to have remedied the situation; and b) the circumstances in which the Applicant found herself militated against the filing of a grievance. 42. In light of all the circumstances, I concluded that this was not a case where it would be appropriate to make a reduction under Article 77F(3) of the Law. 43. The Tribunal HEREBY ORDERS the Respondent to pay to the Applicant the sum of 2,000 by way of compensation for unfair dismissal. Wrongful dismissal 44. I am satisfied that the Respondent failed to pay to the Applicant a payment in lieu of her contractual notice period. This was in breach of contract and the Applicant was wrongfully dismissed. 45. The Applicant is entitled to damages to reflect one week of contractual notice, amounting to 250. 46. The Tribunal HEREBY ORDERS the Respondent to pay to the Applicant the sum of 250 by way of damages for wrongful dismissal. Failure to provide itemised pay statements and statement of terms 47. I note the Applicant s complaints that she received neither pay statements nor a copy of her contract of employment. I urge the Respondent to ensure that it improves its internal processes and provides its employees with copies of their contracts and itemised pay statements in accordance with the provisions set out in the Law. JEDT Judgment 14
SCHEDULE OF AWARD Compensation for unfair dismissal 2,000 Damages for wrongful dismissal 250 TOTAL AWARD 2,250.0 Signed: Mrs Hilary Griffin, Deputy Chairman Dated: 8 February 2017 Judgment and Reasons sent to the parties on 8 February 2017 For the Tribunal Office JEDT Judgment 15