employment tribunals...reserved judgment case no. 2405175/2016 1 employment tribunals claimant: miss...

RESERVED JUDGMENT Case No. 2405175/2016

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EMPLOYMENT TRIBUNALS

Claimant: Miss S Irving

Respondent:

Cumbria Partnership NHS Foundation Trust

Heard at:

Carlisle On: 19-21 February 2018 16-18 July 2018

10 October 2018 (in Chambers)

Before: Employment Judge Langridge

(sitting alone)

REPRESENTATION: Claimant: Respondent:

In person Mr S Craig, Solicitor

JUDGMENT

The judgment of the Tribunal is that:

1. The claimant was fairly dismissed by reason of redundancy.

2. The claimant is not entitled to a statutory redundancy payment pursuant to the Employment Rights Act 1996 because she unreasonably refused an offer of suitable alternative employment.

3. The claimant is not entitled to a contractual redundancy payment under the respondent’s Agenda for Change terms because she unreasonably refused an offer of suitable alternative employment.

4. The claimant received payment of her full entitlement to accrued holiday pay and has no further entitlement. Her claim for unlawful deductions from pay contrary to Part II Employment Rights Act 1996 therefore fails.

5. The claimant has not proved that she was entitled to receive payment of mileage expenses and accordingly her breach of contract claim fails.

6. All claims are dismissed.


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REASONS Introduction

1. The claimant was employed by the respondent Trust as a nurse, but as a result of changes to the service in which she worked, her employment came to an end on 5 July 2016. She brought a number of claims, alleging that her dismissal was unfair, that it amounted to unlawful disability discrimination and that she was entitled to both a statutory and a contractual redundancy payment. The latter was presented as a breach of contract claim. An additional breach of contract claim was made in respect of non-payment of expenses incurred in connection with the claimant’s attendance at a university course sponsored by the respondent. A further claim for unpaid holiday pay was pursued as an unlawful deduction from wages contrary to Part II Employment Rights Act 1996.

2. The respondent asserted that it dismissed the claimant on the grounds of redundancy, and that the dismissal was fair and reasonable in all the circumstances of the case. The respondent asserted that it offered the claimant a new role which, if accepted, would have enabled her employment to continue, and this was a suitable alternative to redundancy. The respondent therefore disputed the claimant's entitlement to a redundancy payment, whether on a statutory basis or under her contract pursuant to the Agenda for Change terms.

3. In its response, the respondent took issue with the claimant’s right to recover expenses on the grounds that the disputed payments had not been authorised. It disputed that the journeys made by the claimant were necessary or authorised. The claim for holiday pay was also disputed.

4. At a case management hearing on 18 September 2017 Employment Judge Franey clarified the issues in discussion with the parties, as set out in Annex B to his Order of that date. At that time the claimant was pursuing disability discrimination claims under the Equality Act 2010, though these were dismissed on 27 November 2017 in the absence of information about her medical condition being provided.

5. At the beginning of this hearing on 19 February 2018 the issues were again clarified and agreed with the parties. It was apparent from the outset that the hearing would be part-heard. As the claimant had an important medical appointment scheduled for the afternoon of Wednesday 21 February, which she was unable to change, by agreement the hearing adjourned early on 21 February to enable her to attend.

6. The claimant initially felt unable to begin the hearing on 19 February due to the late exchange of witness statements only one week earlier. She also had some ongoing health issues which meant she only recently became aware of omissions in the joint bundle. The claimant did not feel ready to begin cross-examining the respondent’s witnesses, and raised issues about her health which she felt would make it difficult for her to proceed with the hearing that week. In effect, the claimant was asking for a postponement. This was opposed by the respondent on the grounds that the dismissal had already taken place some time ago, in July 2016, there was no medical evidence to support what the claimant was saying, and there


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was no guarantee that she would feel any better if we resumed in June or July 2018 (the earliest date the claimant could return due to intervening surgery). The Tribunal refused to postpone the hearing, having regard to the benefit for both parties of proceeding to deal with the case, and in accordance with the overriding objective and in particular proportionality. The Tribunal adjourned for the rest of the first day to read the papers, and the claimant was content that this would assist her greatly in preparing to cross-examine the respondent’s witnesses.

7. The hearing then proceeded on 20-21 February 2018 with evidence from most of the respondent’s witnesses. The Tribunal heard from Ms Deborah Hope who was at the relevant time the claimant's line manager and a team leader within the CAMHS team. Samantha Eggleston and Angela Jeffries, HR advisers who had supported the Mental Health Care Group, also gave evidence.

8. To allow time for the claimant to recuperate from surgery, the hearing resumed on 16-18 July when Helen Johnstone, a Clinical Services Manager working in the respondent’s CAMHS service, gave evidence. Following this the claimant gave evidence on her own behalf and she submitted a witness statement from Ms Gina McQuade-Manley. This statement was admitted on the understanding that it would carry less weight than if the witness had been present to be cross-examined.

9. In the interval between the two hearings both parties were asked by the Tribunal to assist it by producing better evidence in relation to both the mileage expenses claim and the holiday pay claim. It was far from clear in respect of both claims what the claimant felt she was entitled to and the basis upon which the respondent disputed payment. Although an updated Schedule of Loss was later provided by the claimant, this simply identified “unpaid mileage expenses” totalling £1,289.98, without any breakdown of the dates or purposes of the journeys made. As for holiday pay, the Schedule simply reiterated that four days were due for 2015/2016 plus an additional nine days for the most recent holiday year. The respondent produced no additional evidence to assist the Tribunal on the question of holiday pay, such as a record showing the amount of leave accrued and taken. Issues & relevant law

10. The issues relevant to this case can be summarised as follows:

10.1 Was the claimant dismissed by reason of redundancy as defined by section 139 Employment Rights Act 1996 (‘the Act’)? At the hearing the claimant conceded that this was the case.

10.2 Was the claimant’s dismissal fair or unfair under section 98(4) of the Act, and in accordance with the well-established guidelines in Polkey v AE Dayton Services Ltd 1988 ICR 142 and Williams v Compair Maxam 1982 ICR 156? Factors affecting fairness in redundancy cases include giving the employee advance warning of the risk of redundancy, carrying out meaningful consultation before a final decision is made, and exploring steps to avoid the redundancy, including making suitable alternative employment available to the employee where this exists.

10.3 If the dismissal was unfair (whether substantively or procedurally), was the respondent entitled to rely on Polkey to argue that any remedy


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should take into account the likelihood of the claimant's employment ending in any event on the grounds of her continuing absence on long-term sick leave?

10.4 Was the claimant entitled to a redundancy payment pursuant to section 135 of the Act? This confers such a right to employees dismissed for redundancy, but subject to the provisions of section 141.

10.5 Did the respondent make an offer to re-engage the claimant under a new contract of employment satisfying section 141(1) of the Act? The relevant parts of that section provide as follows:

(1) This section applies where an offer (whether in writing or not) is made to an employee before the end of his employment—

(b) to re-engage him under a new contract of employment,

with … re-engagement to take effect either immediately on, or after an interval of not more than four weeks after, the end of his employment.

(2) Where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer.

(3) This subsection is satisfied where—

(a) the provisions of … the new contract, as to—

(i) the capacity and place in which the employee would be employed, and

(ii) the other terms and conditions of his employment,

would not differ from the corresponding provisions of the previous contract, or

(b) those provisions of … the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee.

10.6 The factual basis of this issue related to an offer of the position of Senior Mental Health Nurse Practitioner within the respondent’s Children and Adolescent Mental Health Services (CAMHS) Team, made on 23 June 2016.

10.7 If the offer complied with section 141(1) of the Act, did the claimant lose the right to a statutory redundancy payment because she unreasonably refused it? This required consideration of the suitability of the post offered, viewed objectively, and of the reasonableness of the claimant’s refusal of the offer taking into account her subjective reasons for that decision.


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10.8 Were the respondent’s national terms and conditions known as Agenda for Change incorporated into the claimant's contract of employment? At the hearing the respondent conceded that this was the case.

10.9 In order to succeed in her claim for a contractual redundancy payment, could the claimant show that she satisfied the requirements of part 16 of Agenda for Change in relation to her entitlement, and in particular paragraph 16.23?

10.10 Was the claimant excluded from any right to a contractual redundancy payment under paragraphs 16.17, 16.19 and 16.20 of Agenda for Change?

10.11 In relation to expenses, was the respondent in breach of contract by failing to reimburse the claimant some of her mileage claims incurred in connection with attendance at a university course?

10.12 In relation to holiday pay, was there an occasion on which the respondent paid the claimant less than the amount properly payable to her in respect of the following:

• Four days’ annual leave accrued but not taken in the leave year 2015-2016, based on the claimant having achieved ten years’ service;

• Nine days’ annual leave which the claimant had to take in order to complete her university course in the leave year 2016-2017.

10.13 This was presented as acclaim under section 13 of the Act, which prohibits deductions from wages (except in certain circumstances not relevant here). ‘Wages’ are defined under section 13(3):

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

10.14 The Tribunal therefore had to decide what sum or sums were properly payable to the claimant in respect of her holiday pay in determining this question.

10.15 Finally, there were two further issues relating to remedy which would fall to be considered depending on the outcome of the liability hearing. Those were:

• Whether there should be an award under section 38 Employment Act 1980 on the grounds of the respondent’s failure to provide an updated written statement of the main terms of employment; and


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• Whether any award in respect of holiday pay should be uplifted because the respondent unreasonably failed to follow the ACAS Code of Practice on Discipline and Grievance Procedures when the claimant submitted a grievance about that.

Findings of fact

11. The claimant is a qualified mental health nurse. She was employed by the respondent Trust from April 2005, initially on a casual basis and later with a permanent position. On 6 April 2005 she registered for casual work, but her continuous employment did not begin until 5 November 2007. Latterly the claimant worked as a as a Substance Misuse Nurse. On 1 March 2010 she was sent a copy of her statement of particulars of employment which at that time was as a Crisis Practitioner. The claimant’s terms and conditions incorporated the respondent’s nationally agreed terms and conditions known as Agenda for Change. The relevant sections are set out below.

12. Part 16 of Agenda for Change deals with redundancy pay, its provisions broadly mirroring the statutory position under the Employment Rights Act 1996 but with some modifications, including enhanced redundancy payments calculated according to paragraph 16.8:

“The redundancy payment will take the form of a lump sum, dependent on the employee’s reckonable service at the date of termination of employment. The lump sum will be calculated on the basis of one month’s pay for each complete year of reckonable service, subject to a minimum of two years (104 weeks) continuous service and a maximum of 24 years reckonable service being counted.”

13. The provisions on exclusion from eligibility are set out in paragraph 16.20:

“Employees shall not be entitled to redundancy payments … if [they]:

• unreasonably refuse to accept or apply for suitable alternative employment with the same or another NHS employer.”

14. The respondent has certain obligations under paragraph 16.21:

“Employers have a responsibility, before making a member of staff redundant … to seek suitable alternative employment for that person …”

15. “Suitable alternative employment” is defined in accordance with paragraph 16.22, which provides that this:

“… should be determined by reference to sections 138 and 141 of the Employment Rights Act 1996. In considering whether a post is suitable alternative employment, regard should be had to the personal circumstances of the employee. Employees will, however, be expected to show some flexibility”.

16. These provisions mirror the statutory position but with the addition of an explicit requirement for flexibility.


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17. Under paragraph 16.23:

“… any suitable alternative employment must be brought to the employee’s notice in writing or by electronic means agreed with the employee, before the date of termination of contract and with reasonable time for the employee to consider it”; and

“The employment should be available not later than four weeks from that date. Where this is done, but the employee fails to make any necessary application, the employee shall be deemed to have refused suitable alternative employment. Where an employee accepts suitable alternative employment the ‘trial period’ provisions in Section 138(3) of the Employment Rights Act 1996will apply.”

18. Those contractual terms became relevant towards the end of the claimant’s employment on the grounds of redundancy in 2016. A number of developments took place before then, which led eventually to the dismissal. From 2010 the claimant had been working within the respondent’s Drug, Alcohol and Sexual Health Service, known as DASH. She was based in Carlisle. The respondent also provided services in Carlisle through its Children and Adolescent Mental Health Services team, known as CAMHS.

19. The event which led ultimately to the claimant’s employment ending began with a decision made by Cumbria County Council in late 2014 to withdraw its funding for the DASH service. The Council gave notice on 1 December 2014 of its intention to cease the funding with effect from 31 March 2015. Immediately the qualified mental health staff working in DASH, including the claimant, were made aware of the situation and given the opportunity, as an alternative to redundancy, to undertake additional training on Cognitive Behavioural Therapy (CBT) on the understanding that a job in CAMHS would be made available to them at the end of the training. This agreement was conditional upon the training being completed successfully. Funding was available for the claimant and her colleagues to undertake the CBT course at Manchester University from January 2015, with an expected completion date of December 2015. The claimant attended the university for two days a week at the respondent’s expense. The respondent paid her to attend on working days, and agreed to reimburse her mileage and other reasonable expenses incurred in attending at the university. These payments were made throughout 2015 and no dispute about them was raised with the Tribunal, the disputed mileage relating to March 2016 after the end of formal teaching sessions.

20. In March 2015, before the cessation of the DASH service at the end of that month, the respondent issued a consultation paper outlining the timescale for the redundancy consultation with the staff. This was to begin on 16 March and end on 15 April. A meeting with the claimant took place on 14 April when the arrangements already in place were formally confirmed, now that the funding for DASH had come to an end. The respondent reiterated that it was unable to continue employing the claimant in DASH from 1 April 2015 and it was treating the period from then until the end of 2015 as a redeployment period to allow her to complete CBT training. The claimant was told that in the meantime she could continue to attend Manchester University two days a week and report to work within CAMHS while her studies were ongoing. Her terms and conditions of employment remained otherwise unchanged. A further meeting took place on 28 May 2015 in the absence of the claimant on sick


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leave, but with her representative in attendance. This resulted in a letter of 29 May confirming the arrangements that would be in place while she undertook the additional training. The letter stated that:

“In December 2015 when the redeployment ends and subject to you successfully achieving your qualification you will be appointed to the position of CAMHS Practitioner (Band 6).”

21. In November 2015 the claimant began another period of sickness absence due to stress and fatigue. This was the beginning of an extended period of long-term sickness absence, from which the claimant never fully recovered during the remainder of her employment. A referral to Occupational Health on 8 December identified a number of symptoms which amounted to an impairment of the claimant's mental health capacity and function. Due to her ongoing ill health the claimant remained on sick leave and was unable to complete her CBT training course in December as anticipated. The respondent allowed the arrangement to continue for the time being.

22. By January 2016 Deborah Hope was a team manager in CAMHS and the claimant’s line manager. She emailed the claimant on 7 January suggesting a meeting to enable her to provide support on her return from sick leave. The claimant replied the same day saying that in order to complete her studies she had to hand in a case report, a literature review and a portfolio plus a video.

23. In accordance with its sickness absence policy, the respondent arranged a Stage One sickness absence meeting with Ms Hope on 13 January 2016. Prior to the meeting the claimant emailed Ms Hope to explain that she did not have enough energy to attend. She identified some support that would help her to return to work, partly relating to physical adjustments at work and also requesting some “understanding re current condition (insomnia, chronic fatigue, poor concentration and memory, muscle weakness and pain, dizziness, headaches, overheating)”. The meeting went ahead in the claimant’s absence but she was represented by her union. There was a discussion about the claimant's concerns regarding the time and support needed to finish her course, and it was agreed that the detail of this would be followed up after the meeting. A formal Stage One outcome was recorded on the claimant's file.

24. On 28 January the claimant emailed Ms Hope saying that she planned to return to work on 5 February even though she was “still a long way from ok”. She added, “I have spoke to my GP to say that I have to return to get my uni stuff finished or I am out of a job” and the GP had supported a phased return with that in mind. Ms Hope offered to meet beforehand, though in the event the claimant was unable to do that. In an email dated 3 February Ms Hope told the claimant that the next four weeks (the duration of the phased return) would be crucial and she could concentrate on her studies during that time. Her email added, “After the four weeks you would have to use any outstanding annual leave or you would be expected to be in work full-time”.

25. On 5 February the claimant started her phased return to work and was able to focus only on completing her CBT coursework, being given no other duties during that time.


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26. On 19 February Ms Hope emailed to find out how the claimant was progressing, to which she replied that she was still trying to complete her course but was not sure she would have everything done in time. She requested that the two days of study leave each week should continue when she returned to work full-time. Further email exchanges on 29 February showed that the claimant was making very slow progress, was feeling exhausted from travelling to Manchester and was about halfway through her case report as at that date.

27. On 7 March a meeting took place with Ms Hope to review the outstanding coursework. The claimant attended with her union representative, and Angela Jeffries from the HR department was also present. The claimant advised her manager that she still had a “considerable amount of coursework to complete”, and that she had deadlines in late March to ensure that the work was submitted and marked in time. As the phased return to work had ended and the claimant should have returned to normal working hours and duties, an agreement was reached at this meeting that the claimant would use the remaining nine days of her annual leave to extend the phased return. Those nine days together with eight further working days in March were agreed to be used entirely as study leave.

28. By a letter dated 8 March the respondent confirmed that the claimant had been at work on a phased return since 5 February and able to use the entirety of her working time to complete her university work. The letter notified the claimant that if she did not complete her coursework or pass the course in accordance with the agreement reached on 29 May 2015, then formal consultation about her employment would recommence.

29. Deborah Hope maintained regular email contact with the claimant during this period. On 17 March she emailed to ask how about progress. On 20 March the claimant replied to say she had completed some but not all of her course work, but was hoping to meet all the deadlines. One of these was the following day, 21 March. According to the respondent’s internal expense records, the claimant submitted a mileage claim for attending the university on this date. She also stated an intention to hand in some work she had completed on 24 March, and a mileage claim was submitted for this date as well. Each mileage claim was for £132.56. However, the claimant’s emails indicated she had not in fact met these deadlines. On 22 March the claimant emailed to say she had been struggling and had not met the deadline of 21 March to hand in some of her work. She was also unable to hand in the case report without the literature review, as they went hand in hand. In this email the claimant added, “I look forward to hearing how we move forward with the consultation process”. She understood there was an underlying risk of redundancy depending on her successful completion of the course.

30. The internal expenses log showed a total of nine mileage claims for travelling to “external training” during March 2016. The entries did not for the most part identify the date of travel but only the date the claim was entered. Assuming the dates were in fact the same, the log suggested that the claimant travelled to Manchester on 3, 10, 14, 17, 21, 22, 24 and 29 March 2016. The ninth claim is accounted for by the fact that two entries both appear to relate to 14 March.

31. On 30 March the claimant began a further period of sickness absence, and from this date never returned to work.


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32. On 1 April Ms Jeffries emailed the claimant to initiate the next steps in relation to redundancy consultation. The claimant replied the same day asking to put this back by two weeks due to her sickness absence.

33. Before the consultation recommenced, the claimant emailed Ms Hope on 4 April in response to a request for receipts for various expenses incurred for travelling to Manchester University. The claimant said she would try to obtain copies of receipts for lunches but was unable to obtain receipts for parking, which she had been claiming successfully since starting the course. Ms Hope replied by return to say she needed receipts for parking and lunches in order to authorise the expenses. The claimant replied saying she had removed lunches from her claim and would add them the following month if she could sort out receipts, but that she was unable (and had always been unable) to obtain receipts for parking. She offered to provide statements from people who had accompanied her on the trips to Manchester and said the university would confirm the dates when she had appointments there. The claimant expressed her frustration about the issue and said it was “bordering on bullying and harassment”. The respondent’s concern was that the claimant was attending the university in person, rather than working on her course work at home, during a period when teaching had ended and it was not felt necessary for the claimant to be in Manchester.

34. In a lengthy email dated 4 April the claimant set out her concerns to Helen Johnstone, CAMHS Clinical Services Manager, complaining partly about the expenses issue and also about the lack of support during her time at CAMHS. About Ms Hope the claimant said, “Deborah has made it clear that she does not want me as part of her team and the last meeting I had with her and HR I felt her to be very hostile”. She complained that she was “forced” to take nine days’ annual leave to finish her studies and was not allowed to carry forward annual leave to the following year despite being on long-term sick leave. She asked for an explanation for why her expenses were not being authorised, if that was the case. Ms Johnstone acknowledged receipt of the email promptly and said she would revert once she had spoken to HR and to Ms Hope.

35. In the meantime, on 11 April, the respondent wrote to the claimant confirming a meeting on 19 April to restart the redundancy consultation process. This meeting took place and the claimant was accompanied by her union representative. It led to a letter dated 21 April giving the claimant formal notice to terminate her employment on the grounds of redundancy. She was given 11 weeks’ notice ending on 5 July 2016. For the purposes of the notice entitlement and redundancy pay calculation, the respondent erroneously took the continuous service to have begun with the casual work from April 2005. Information was provided about the claimant's financial entitlements, with an estimate of the redundancy payment which would apply under the Agenda for Change terms. It was calculated on the basis of 11 years’ service at the claimant's monthly pay of £2,796.67, and amounted to £30,763.37. The letter noted that the claimant was still signed off on sick leave, and made her aware that she had a right to appeal against the decision to terminate her employment on the grounds of redundancy. The claimant did not exercise that right.

36. The respondent provided a redeployment application form for completion by the claimant. She returned this on 21 April, though it was not fully completed. Ms Jeffries followed this up on 6 May to say they needed more information, in particular about the type of roles she wished to be considered for. By that time the claimant


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was being made aware of other vacancies within the respondent Trust. She was advised that she needed to apply for any which she considered suitable or explain why she did not consider them suitable. The respondent took the view that between early May and the termination date of 5 July, the claimant had plenty of time to recover and to be well enough to attend job interviews.

37. On 9 May the respondent provided the claimant with details of two posts as a qualified Mental Health Nurse based in Carlisle, neither of which the claimant applied for. Following a further Occupational Health referral on 13 May the claimant was assessed by telephone and the resulting report identified little if any improvement in her condition. She advised Occupational Health that she was bedbound most of the time, was struggling with concentration and had developed a back problem requiring her to use crutches. At that stage the prognosis for recovery was felt to be unclear. Occupational Health assessed the claimant as being unfit to attend interviews.

38. On 25 May the claimant advised the respondent that she was interested in the two jobs forwarded to her but was unable to attend interviews due to her health. She did not know when she would be fit to do so and she could not give a date as to when she would finish the CBT training course.

39. On the same date the claimant emailed Helen Johnstone again saying she was still waiting to hear about her expenses claim. On 8 June Ms Johnstone sought to clarify the claimant's status in relation to her course by an email to her tutors, requesting a copy of a register showing the claimant's attendance. Reference was also made to the impending redundancy process which was linked to the claimant passing the course.

40. On 10 June the claimant and Ms Johnstone spoke on the phone and discussed the claimant’s difficulties in finishing the course. Ms Hope had by then said there was no funding to continue paying the claimant’s salary for a proposed six week extension period to enable her to complete the work. The claimant fully appreciated that this would impact upon the proposed job in CAMHS, and expressed her view that she did not feel wanted in that team. Later that day the claimant emailed Ms Jeffries to ask about her redundancy entitlements, seeking calculations and a breakdown of the payments she would receive, and reconciling herself to the impending redundancy.

41. On 13 June the claimant's course tutor emailed Ms Johnstone to say that she had passed most of the components of the course, though some elements had yet to be submitted, including a case report (with literature review) and a portfolio. The tutor expressed the view that it would not take the claimant long to complete those elements once she was back at work, when support would be provided.

42. In light of this further information Ms Jeffries emailed the claimant on 14 June saying, “we will be withdrawing the notification of redundancy”. The respondent’s previous understanding from April was that significant work was still outstanding, but relying on the information from the university, this was no longer felt to be the case. The email stated an intention to write formally “confirming the withdrawal of your notice of redundancy”.


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43. On 16 June the respondent confirmed the outcome of a Stage Two sickness absence meeting which her union representative had attended on her behalf on 13 June. The prognosis for the claimant’s return to fitness was still unknown.

44. The expenses claim was revisited on 22 June when Ms Johnstone emailed her response. She said that after seeking advice from the HR department and another manager, they were unable to make any payment without proof of expenditure. The claimant was invited to provide that information. She replied the same day querying how she could obtain receipts for travel and parking, though noting that she could get written confirmation from the university about the days she had been present. A further email from Ms Johnstone on 23 June confirmed the respondent’s stance. Ms Johnstone felt that the claimant should submit receipts from the car parking pay station. Having contacted the tutors at the university, the respondent reported that they had been unable to confirm attendance on the dates in question because they had not related to taught sessions.

45. In the interim the respondent was continuing to identify potential job opportunities to avoid the claimant’s redundancy. By a letter emailed and posted on 23 June Angela Jeffries made the claimant an offer of what was felt to be suitable alternative employment, as a Senior Mental Health Nurse Practitioner. The offer letter enclosed a detailed job description for the post, which was to take effect from 5 July. The claimant was asked to confirm her acceptance by 4 July. Under the terms of the offer the option to complete the CBT course remained in place, subject to certain restrictions to be agreed.

46. The job description and person specification for the new post were not materially different from the requirements of her previous position in DASH. In particular:

46.1 The DASH job description summarised the main duties of the post as providing services to young people, parents and carers in relation to complex drug and alcohol use. The claimant was tasked with providing comprehensive assessments, care planning and treatment interventions.

46.2 The job description for the Senior Mental Health Practitioner post was not aimed specifically at substance abuse, but otherwise the content was broadly similar. It was considerably more detailed than the DASH document. The summary of main duties included providing specialised assessment and treatment to children, young people and their families experiencing acute and chronic mental health and psychological or behavioural distress.

46.3 The person specification for the new post was similarly more detailed than the one relating to the DASH job, though the two were broadly similar. In both cases the post-holder was required to be qualified as a level 1 mental health nurse, which the claimant was. The experience and knowledge necessary for both posts were equivalent and the skills and aptitudes were not materially different, being mostly generic in nature.


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47. Both posts were graded at the same level (Band 6) and in both cases the work was located in Carlisle.

48. A second letter from Ms Jeffries dated 23 June 2016 set out the respondent’s overall position in more detail. Firstly, the respondent felt that the information received from the university about the amount of work to complete the CBT course differed quite dramatically from the information received from the claimant. The university felt that the course was nearing completion but the claimant felt that significant further work was needed. The letter stated, “Whilst we seek further clarification your notice of redundancy will remain in place”. The respondent’s position therefore changed since Ms Jeffries wrote about withdrawing the notice in her email of 14 June.

49. The letter went on to refer to the Agenda for Change provisions which would exclude the claimant from receiving a redundancy payment if she unreasonably refused suitable alternative employment. The respondent felt that the posts notified to the claimant in early May constituted suitable alternative employment, as did the new post of Senior Mental Health Nurse Practitioner in CAMHS. The risk of forgoing the redundancy payment was spelled out in clear terms:

“To be clear Phyllis, it’s important to highlight that if you do not have a substantial reason as to why any of the posts offered are not suitable alternatives … then you risk forgoing your redundancy payment, and as such when we reach the end of your notice period your employment will come to an end with no payment.”

50. The claimant acknowledged this letter immediately, thanking Ms Jeffries for explaining the situation and expressing her gratitude because this was the first time she felt she had received information outlining exactly what was happening.

51. On 26 June the claimant emailed Ms Johnstone saying that she did not wish now to claim for parking or food, only mileage. She said she had attended eight days at university to try and complete the course due to the pressure she was under. The following day the claimant emailed again saying she was trying to find proof of her journeys to Manchester. She forwarded an email dated 20 March 2016 indicating that she was intending to attend the university in person the following day, to hand in a case report and video.

52. The claimant was given time to consider whether to accept the post of Senior Mental Health Practitioner. This was extended until close of business on 5 July, the intended termination date. The claimant was reminded that if she did not have a substantial reason as to why any of the posts offered were not suitable then she risked losing her entitlement to a redundancy payment. She was told explicitly that “when we reach the end of your notice period (tomorrow) your employment will come to an end with no payment”.

53. At 16:56 on 5 July the claimant sent a lengthy five page email to Angela Jeffries rejecting the offer of the role as a Senior Mental Health nurse Practitioner and set out her detailed reasons. In summary, the claimant refused the offer on a number of grounds:


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53.1 She enjoyed the DASH role and wished to continue in that particular field. She did not wish to lose those skills and training.

53.2 She had no inclination to work with young children with broader mental health issues, and did not feel equipped to work with highly complex children and their families.

53.3 She felt she did not have the experience or training to carry out some specific duties such as leading group therapy or delivering training.

53.4 She felt that her health issues presented difficulties such as covering out of hours services, or enabling her to gain the training to become a qualified and confident practitioner.

54. The bulk of the email set out a detailed chronology of reasons why the claimant felt she had been badly treated in the last year or so, alleging that she had been bullied and unsupported while working in the CAMHS building. She referred to the pressure of being required to complete her CBT course while experiencing health problems, and having to use annual leave as study leave. She complained about the non-payment of her expenses, and the way the correspondence relating to her redundancy had been handled. She was unhappy at the way the respondent’s position on redundancy had changed at times, with talk of withdrawing notice which then did not happen.

55. On 8 July the claimant forwarded another email from the university to Helen Johnstone which referred to a tutorial she appeared to have attended on 23 March. The expenses log did not include an entry for that date.

56. On 12 July Ms Jeffries emailed the claimant saying that Ms Johnstone would like to meet with her to discuss the contents of her email of 5 July rejecting the offer of employment. The email went on to say, “As a consequence of the above it has been agreed to extend your notice (on full pay) to the end of this month”. Internally, the respondent was acting on the assumption that the notice period would extend to the end of July to explore other possibilities. In reality, however, this arrangement did not reflect any agreement reached with the claimant, who was not happy at the extension of her termination date. The claimant emailed Ms Jeffries on 12 July to say that she had already applied for benefits on the understanding that she was unemployed from 6 July onwards. She referred to the impact on her health and stress levels of the decisions to make her redundant and then change that, and likewise the extension to the termination date. The claimant took advice from ACAS to confirm her understanding that the termination date could not be extended without her agreement and emailed the respondent on 13 July to that effect.

57. On 14 July the respondent replied, explaining why it had requested a meeting to discuss the issues and seeking clarification as to whether she was rejecting the offers of employment, and whether she did not wish her notice period to be extended. Having received no reply from the claimant to this letter, on 22 July Ms Johnstone wrote confirming the termination of the employment with effect from 31 July 2016. The letter acknowledged that the claimant had not accepted the extension to the notice period, resulting in an overpayment to her for which the respondent would not be seeking any repayment. Notwithstanding the contrary statement in the letter, in reality the claimant's employment did terminate on 5 July 2016.


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58. As the claimant had not wished to attend a meeting, the respondent considered the concerns in her 5 July email and responded to them by a detailed letter dated 30 August from Helen Johnstone. The letter expressed the view that the claimant’s skills and experience were transferable to the new role, which she maintained was suitable alternative employment. Ms Johnstone outlined the support she felt the respondent had provided in relation to the claimant’s health and her attempts to complete the university course. She concluded by offering to meet the claimant in person for the purposes of an exit interview.

59. On 30 August the claimant emailed Ms Jeffries and Ms Johnstone asking whether she had any right of appeal against the refusal of the redundancy payment, in response to which Ms Jeffries replied saying that, “all internal processes have now been exhausted”.

60. Following the end of the claimant's employment her email contact with the respondent continued in relation to some of the financial issues. On 28 September 2016 the claimant acknowledged that she had received salary up until 31 July and asked when she could expect to receive her holiday pay. On 29 September Ms Jeffries replied that the accrued annual leave was linked to the termination date, which would affect the calculation. In a reply of the same date the claimant said (in contradiction of her previous position), “I accept that you have terminated my employment on 31 July” and asked that her accrued annual leave of 82.5 hours from April to the end of July 2016 be paid. Ms Jeffries confirmed on 30 September that this payment would be made, with the amount having been recalculated to the end of July. Payment of all annual leave accrued between 1 April and 31 July 2016 was paid to the claimant in full on 27 October 2016.

Conclusions

Unfair dismissal

61. Dealing first with the unfair dismissal claim, the Tribunal accepted that the respondent dismissed the claimant for the potentially fair reason of redundancy, in that her post in the DASH service was deleted. The definition in section 139(1)(b)(i) Employment Rights Act 1996 was therefore satisfied, in that the respondent’s requirement for employees to carry out that particular kind of work ceased from 31 March 2015.

62. The claimant’s employment did not end immediately, however. She was made aware of the loss of funding for the DASH service in December 2014, shortly after the respondent received notice to that effect from Cumbria County Council. Immediately there were discussions about an opportunity within the Trust which would potentially avoid the need to make the claimant redundant. She was offered – and accepted – the chance to undertake CBT training over the course of a year with a view to becoming a CAMHS Practitioner on passing the course. The claimant embarked on those studies in the knowledge that she would be moving into a new broader-based role dealing with children and young people with mental health problems. Her specialist role dealing with substance abuse problems for older children no longer existed.

63. Other steps were taken to make the claimant aware of the potential redundancy, with formal consultation taking place with the claimant and her


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colleagues in the DASH team in March 2015. The respondent’s letter of 28 May 2015 clarified that the period of the CBT training would be treated as redeployment until December 2015 when the course was expected to be completed. Much later in the process, on 7 March 2016 Ms Hope met with the claimant and as part of the discussion about completing her studies the possibility of redundancy was aired. Ms Hope’s letter of the following day included a clear statement to this effect, pointing out that:

63.1 if the course work was completed successfully, the claimant would start work as a Senior CAMHS Practitioner on 4 April 2016; and

63.2 if she did not pass the course, consultation about redundancy would recommence.

64. A redundancy consultation meeting took place with the claimant on 19 April, leading to formal notice to terminate her employment being issued on 21 April. At that time no suitable alternative employment was available, but the notice given to the claimant was to run concurrently with efforts to explore redeployment. The claimant was offered the chance to identify suitable roles via the redeployment register. She was by then experiencing very poor health and understandably this affected her ability to make full use of this opportunity, but the respondent did make reasonable efforts to support her. The jobs sent to her in May 2016 may well have been suitable but it was reasonable for the claimant, given her unfitness to attend any interview, not to pursue those. The offering of the later vacancy as a Senior Mental Health Nurse Practitioner on 23 June 2016 showed that the respondent was maintaining its efforts to redeploy the claimant through to the end of her notice period on 5 July.

65. The tribunal is satisfied that the respondent acted reasonably in its handling of the redundancy. Applying the guidelines in Williams v Compair Maxam, it is clear that the claimant was notified of the risk of redundancy at an early stage, and that she was involved in discussions and consultation about the proposed redundancy. Discussions about avoiding redundancy via the CBT training course were part and parcel of this agenda. The respondent not only made this opportunity available but extended the time given to the claimant to complete her studies, when her poor health made the task difficult for her. The respondent offered suitable alternative work when those vacancies arose. It was the claimant’s decision not to pursue those.

66. Section 98(4) of the Act requires fairness to be assessed in light of the respondent’s size and resources, which were put to good use during the last 18 months of the claimant’s employment. Taking account of the overall circumstances of the case, it cannot be said that this dismissal was unfair in any substantive or procedural way.

67. Even if the Tribunal were wrong about the fairness of the dismissal, the evidence clearly showed that the claimant’s long-term sick leave would have prevented her from returning to work in the foreseeable future after her dismissal. Excepting her phased return to work in February and March 2016, the claimant was absent on long-term sick leave from November 2015 until her employment ended in July 2016. Had she not been dismissed, the Tribunal concludes that she would have


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remained on sick leave pending a Stage Three meeting, at which point she would have been dismissed on the grounds of incapacity.

Statutory redundancy payment

68. The next issue to be determined was whether the claimant, having been dismissed for redundancy, was entitled to a redundancy payment under section 135 of the Act. The respondent argued that she was not, because she unreasonably refused an offer of suitable alternative employment made in accordance with section 141 of the Act.

69. In offering the claimant the position of Senior Mental Health Nurse Practitioner the respondent complied with the requirements of section 141(1). The offer was made on 23 June 2016, before the employment ended and it was due to take effect immediately on 5 July 2016, the termination date.

70. The offer amounted to employment under a new contract with the respondent, on different terms from the former DASH contract. Both posts were graded at Band 6 and the claimant’s pay and status would remain unchanged. Carlisle would continue to be the claimant’s place of work. The difference between the posts lay in the duties, as the new post related to a broader range of mental health care than the specific DASH role which focussed on drug and alcohol abuse. Accordingly, the first part of section 141(3)(b) is engaged, as the new contract terms differed from the previous ones. For the second part of section 141(3)(b) to apply, the offer would have to constitute suitable employment in relation to the claimant. If so, the claimant would not be entitled to a redundancy payment by virtue of section 141(2).

71. The Tribunal concludes that the post of Senior Mental Health Nurse Practitioner did constitute suitable employment for the claimant. It utilised her background as a mental health nurse and she had the skills and experience to fulfil the duties of the role. While there was a different emphasis in relation to the duties, this did not render the post unsuitable on any objective basis. The job descriptions for the old and the new posts demonstrated that they overlapped considerably and the generic skills and duties were extremely similar. Had the claimant wanted to remain in employment with the Trust, taking this opportunity would have enabled her to do so. She would have suffered no loss of grade or pay, nor been inconvenienced in any way by virtue of the location. She might well have preferred to stay in the field she had enjoyed as a DASH nurse, but mere preference does not in itself make the alternative post unsuitable. It was an alternative to a job which the claimant would have liked to keep, but which no longer existed.

72. It is important to consider all of the claimant’s subjective reasons for refusing the post, not merely by reference to a comparison between the two job descriptions. By the time the offer was made, the claimant had already decided that she preferred to leave her employment. She had her reasons, including a perception that she had been badly treated and was not wanted in the CAMHS service. This perception was not borne out by the evidence presented to the Tribunal. The underlying cause for the claimant’s state of mind in 2016 was her poor health and the undoubted stress she was experiencing because of this, coupled with its effect on her ability to complete the CBT course. While the Tribunal does not underestimate the effect of this pressure, it does not accept that there was a reasonable basis for her to refuse the option of continuing employment. Had the claimant accepted the new job, the


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respondent would have supported her to complete her studies, there being a small amount of work to finalise. It made the job offer explicitly on this understanding.

73. The respondent made the offer in the knowledge that the claimant’s long-term sickness absence was continuing, but this was not a barrier to her accepting the new job. Her sick leave would have continued and been managed in the new role.

74. Examining the reasons set out in the claimant’s email of 5 July 2016, the Tribunal does not agree that the claimant’s decision was a reasonable one for her to take. It is understandable that she preferred the DASH work and wished to retain her skills in that field, but in the face of that job having disappeared, it was reasonable to expect the claimant to take a suitable alternative at least for the time being.

75. The claimant expressed other concerns about working with younger children and dealing with broader and potentially more complex mental health issues, but her evidence about this was not supported by any detail. It appeared to relate to a loss of confidence rather than an absence of skills or experience. The respondent had supported the claimant during the early part of 2016 in an effort to encourage her to complete her studies, and extended the time allowed for this by some months. Even as it offered the new post on June 2016, it showed itself willing to continue that support. It then offered to extend the notice period to allow time for a discussion about the claimant’s concerns but by then the claimant was adamant that she would leave no matter what. This mindset was apparent from the length of the 5 July email, the bulk of which was a complaint about the claimant’s difficulties in the last year or so of her employment. Nevertheless, the respondent made a conscientious effort to address the issues in the 5 July email and when replying on 30 August Mrs Johnstone identified the support available to the claimant in the past, which would have been ongoing had she accepted the new job.

76. The respondent’s efforts to persuade the claimant to stay and engage with them about her concerns, culminating in her refusal to extend the notice period, demonstrated to the Tribunal that the claimant’s decision to turn down the job was not a reasonable one for her to take. Even allowing for the stress she was experiencing, the claimant made a conscious choice to risk losing her redundancy entitlements rather than stay employed any longer. The Tribunal does not criticise her for that, as the choice has to be a personal one, but it cannot agree that the claimant is entitled to walk away from a suitable job and seek a redundancy payment.

Contractual redundancy payment

77. The right to a redundancy payment under the Agenda for Change provisions is a contractual claim. The claimant had to satisfy the Tribunal that the respondent breached the terms identified above in part 16 of the document. While this generally mirrors the statutory language of section 141 of the Act, there are some minor differences.

78. The Tribunal has already found that the respondent’s offer dated 23 June 2016 complied with the requirements of section 141(1) of the Act in relation to the manner and timing in which it was made. Under paragraph 16.23 of Agenda for Change, there were added requirements to put the offer in writing (which the


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respondent did), and to make the offer “with reasonable time for the employee to consider it”. In this case the offer was made close to the termination date and therefore the claimant’s time to consider it was limited. That said, she did consider the job requirements in detail and was able to reply by 5 July. The respondent took the reasonable step of seeking to extend the termination date to 31 July to allow more time for discussion. In those circumstances the respondent met its obligation to provide reasonable time for consideration.

79. The respondent relied on paragraph 16.20 in excluding the claimant from eligibility for a redundancy payment. This paragraph adopts the terminology of the Act, and disentitles employees to redundancy payments if they “unreasonably refuse to accept or apply for suitable alternative employment”. The statutory definition of suitable alternative employment in section 141 of the Act is adopted. Paragraph 16.20 goes on to say:

“In considering whether a post is suitable alternative employment, regard should be had to the personal circumstances of the employee. Employees will, however, be expected to show some flexibility”.

80. The reference to personal circumstances reflects the subjective element of the legal test to be applied to statutory claims. The additional requirement for flexibility places an explicit duty on the claimant to attempt to accommodate the respondent’s needs. This is apt in the context of redundancy, which often necessitates adapting to changes. It is in the very nature of offering suitable alternative employment that it may not be an employee’s preference, but a degree of flexibility can be expected if the parties are to avoid bringing the employment to an end.

81. The Tribunal concludes that the respondent acted in accordance with part 16 of the Agenda for Change terms by offering the claimant suitable alternative employment, and did not breach her contractual terms. The respondent was entitled to treat the claimant as excluded from the right to an enhanced redundancy payment under paragraph 16.20 because she unreasonably refused the job offer and did not show the flexibility required of her. The Tribunal adopts its reasoning in relation to the claim for a statutory redundancy payment set out above.

Holiday pay

82. This claim was brought under Part II of the Act, as an unlawful deduction from wages. The definition of a deduction under section 13(3) required the Tribunal to consider what sum or sums were ‘properly payable’ to the claimant at the time when her employment ended. It was not in dispute that any accrued but untaken holiday entitlement would have been payable on the termination of the claimant’s employment.

83. The evidence to support this claim was lacking, and neither the claimant nor the respondent produced written records of the holiday entitlement or the number of days still owing. As the hearing progressed, it became apparent that the claim related to two aspects of the claimant’s leave entitlement, the first being an additional four days for the leave year 2015-2016, to which the claimant felt entitled after achieving ten years’ service. The second was the nine days taken by the claimant


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as study leave in February and March 2016, in order to complete her university course. This accrued in the final holiday year before termination.

84. The first part of this claim was based on a misunderstanding about the date the claimant’s continuous employment began, which was in fact 5 November 2007 and not April 2005 when she started working on a casual basis. By the time of the hearing this was accepted by the parties, and the respondent’s reference to the 2005 date in its redundancy calculations was accepted to be a mistake.

85. Accordingly, the claimant had not achieved ten years’ service before her employment ended and she had no contractual right to be paid for an additional four days.

86. The issue about the nine days’ leave was misguided. They had not accrued by the time the claimant’s employment ended, as she took those days to work on her studies and was paid for them. Her real grievance was that she did not wish to use annual leave for this purpose, but she did agree with Ms Hope at the meeting on 7 March to do this, even if reluctantly. That arrangement having been agreed, it cannot be said that the respondent failed to pay the amount properly due to the claimant for holiday pay on the termination of her employment. Putting aside the nine days in question, on 27 October 2016 the respondent paid the claimant in full for all her accrued holiday pay, and by paying as if the employment ended on 31 not 5 July, it paid more than it was obliged to do.

87. For these reasons, the claim for unpaid holiday pay fails.

Expenses claim

88. The final claim relates to non-payment of mileage expenses. This was presented as a breach of contract claim. The contractual terms were not set out in writing, but it was agreed between the parties that the claimant was entitled to claim reasonable expenses properly incurred in attending at Manchester University for her studies. The point of contention was that, once the formal teaching of the course ended in December 2015, the respondent was not satisfied that any ongoing travel was reasonably incurred.

89. During the early part of the hearing the respondent maintained that this was an issue about failing to provide receipts. However, once it was clarified that the expenses pursued by the claimant were limited to mileage, it became apparent that the question of receipts was not relevant and could not be the obstacle to payment.

90. On the claimant’s part, there was a lack of clear and coherent evidence as to the number of journeys actually made, and their purpose. The expenses log was not clear, as shown by the duplication of entries dated 14 March, and it was unsupported by other evidence. The Tribunal sought during the hearing to reconcile the evidence but was unable to do so. Although the claimant produced a few emails suggesting attendance at the university, some of them appeared to support an intention to go but not necessarily an actual visit. For example, In her email of 20 March the claimant stated an intention to hand in some completed work on 24 March, then two days later she said she had not been able to hand in the case report without the literature review. She stated that she had not met the deadline of 21 March to hand in some of her work, which calls into question whether she attended on that date.


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91. It should be made clear that the Tribunal is in no way suggesting that the claimant submitted claims improperly, nor is it in doubt that she genuinely believed she was entitled to these payments.

92. Although both parties sought to obtain clarification of attendances from the university, no clear evidence was forthcoming. This was said to be partly because by March 2016 all formal teaching had ended. The claimant may have chosen to go to the university in order to do research or access the library, but if she had sought authorisation for such visits it may not have been granted. The difficulty for her claim is that no specific authorisation was given and no clear evidence of attendance on particular days was put forward. It was not therefore possible to determine which payments were properly and reasonably incurred so as to fall within the scope of the agreement reached with the respondent.

93. Bearing in mind that the claimant bears the burden of proving her claim for breach of contract, the Tribunal cannot conclude on the evidence presented that the respondent breached the agreement to reimburse mileage expenses. This claim therefore fails.

_____________________________ Employment Judge Langridge Date 11 January 2019

RESERVED JUDGMENT AND REASONS

SENT TO THE PARTIES ON

14 January 2019

FOR THE TRIBUNAL OFFICE

Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

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