Mrs R M Buckingham v Graham Gibbs Associates, 1800065/2014

Heard at Hull Employment Tribunals, 20-22 October 2014

 

Summary of Claim

The Claimant, Mrs Rhona Buckingham, was dismissed on grounds of ill-health (capability), following an assessment of the case by Steve Sellers of Sellers Legal & Training Services, and Mrs Buckingham appealed against this, claiming the dismissal was unfair. There had been other issues & grievances in the case, and these had helped contribute to work-related stress, which was behind the ill-health, the ultimate grounds for the capability findings.

The claim included a claim for a public interest disclosure (“whistle-blowing”), discrimination on grounds of sex, age, and disability, breach of contract, and holiday pay.

 

The Claimant was seeking £29,762, plus Personal Injury, plus Future Loss of Earnings (at a rate of £152 per week). Successful in only a few minimal-value claims, the Claimant was awarded £614.30 for notice pay, and £479.70 for holiday pay – a total award of £1094.20, less than 3.7% of her claim (excluding the claims that didn’t have a financial value placed on them by the Claimant).

 

Summary of Result

The Claimant was represented by Gosschalks Solicitors during the claim process, and Ms Angharad Davies (a Legal 500 barrister with particular experience in discrimination cases) at the hearing. The Respondent was represented by Sellers Legal during the claim process, and Karl Limpert, Consultant/Advocate from Employment Law Clinic Ltd for the hearing

 

Unfair Dismissal

It was claimed that the reason for dismissal was due to a protected disclosure, but the tribunal did not accept this argument, finding that this had no force in the decision, and had long been spent. Ms Davies (the Claimant’s barrister) also sought to argue that the real reason for the dismissal was that Mr Gibbs had decided that the Claimant could no longer work for him, following a breach of confidentiality – the Claimant taking company documents home. Again, the tribunal accepted submissions that the real reason for dismissal was the claimant’s long-term sick leave coupled with her being unable to work closely with Mr Gibbs, factors that were “persuasive and powerful reasons for the dismissal”.

As the Claimant was found not to be disabled, this element of the claim also failed.

 

In what could have been a careless oversight, or even a deliberate pretermission that failed to achieve an aim of portraying the Respondent negatively, counsel for the Claimant argued in cross examination of the Respondent & in their skeleton argument that it was “entirely unacceptable” that a grievance was delayed for several months. On behalf of the Respondent, it was acknowledged that the delay was indeed entirely unacceptable, albeit with the otherwise unmentioned reason for the delay highlighted to the tribunal by reference to the complete correspondence: these delays to the holding of a grievance hearing were entirely at the request of the Claimant.

 

Disability

The Claimant did have medical conditions impairing her ability to perform her job, but the tribunal did not accept that this was likely to last for more than 12 months, finding instead that with the resolution of either a disciplinary or capability process the medical conditions (attributed, at least in part to the working environment) would be resolved too.

(The tribunal also noted that the Claimant had been applying for alternative employment, and while not deemed fit enough to attend work or a disciplinary or grievance hearing, she was fit enough to attend interviews with potential employers.)

Harassment

The Claimant complained of a lengthy series of acts from Mr Gibbs. However, the tribunal acknowledged that all of these acts occurred before Mr Gibbs was aware of any impairment, and crucially before Mrs Buckingham became a person with a disability. (Sadly none of these facts discouraged the bringing of this claim.)

 

 

Breach of Contract: Notice Pay

This matter was complicated by various versions of an employment contract that provided differing amounts of notice based on some interpretations. Regrettably, but nonetheless perfectly reasonably, the tribunal accepted a version of the contract that was signed by the Respondent (although not the Claimant) that provided for four weeks’ notice plus one week for each year served; this was despite clear contradictions in its terms and the Claimant herself giving evidence that she did not accept this version as accurate (ergo, no party actually sought to rely on this version of the employment contract, but the tribunal decided to accept its terms as those of the employment – potentially a perverse finding, but not one worthy of testing in the Employment Appeals Tribunal), rather than alternative versions that provided for a minimum four weeks’ notice, otherwise following the statutory minimum notice.

 

Holiday Pay

An argument advanced here – that as the Claimant did have an opportunity to take all of her leave at the start of her leave year, and therefore was not deprived of it and therefore could not rely upon Larner v NHS Leeds – was not accepted by the tribunal. While it was felt by the tribunal that Mr Limpert argued “ingeniously” that the tribunal should have distinguished the Claimant’s position, it was deemed to be a strained interpretation of Hair Division v Macmillan, and was therefore rejected (regrettably, and arguably a misinterpretation of the law, but again not one worthy of testing).

 

Given the complications with these two issues, it was always a reasonable expectation that these two claims would succeed – although every effort was made to ensure even these failed.

 

 

 

Full Judgment

The full judgment is available here.

 

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