Miss K Letherby v Abraham Nursing Homes Ltd: 1600728/2021
| Jurisdiction | England & Wales |
| Judgment Date | 16 May 2022 |
| Date | 16 May 2022 |
| Court | Employment Tribunal |
| Published date | 26 May 2022 |
| Subject Matter | Part Time Workers |
Case Number: 1600728/2021
1
EMPLOYMENT TRIBUNALS
Claimant:
Miss K Letherby
Respondent:
Abraham Nursing Homes Ltd
Heard at:
Cardiff
On: 25 -27 April 2022 & 6 May
2022 & 9 May 2022
Before:
Members:
Employment Judge C Sharp
Mr P Charles
Mrs J Beard
Representation:
Claimant:
Ms C Mallin-Martin (Counsel)
Respondent:
Ms Y Barlay (Counsel)
RESERVED JUDGMENT
By unanimous decision:
1. The Claimant’s claim of suffering a detriment due to the making of a
protected public interest disclosure is well founded;
2. The Claimant’s claim of automatic unfair dismissal due to the making of a
protected public interest disclosure is well founded;
3. The Claimant’s claim of ordinary unfair dismissal is well founded;
4. The Respondent is ordered to pay to the Claimant £16,875 for her injury to
feelings (inclusive of 12.5% ACAS uplift);
5. The Respondent is ordered to pay to the Claimant for her automatic and
unfair dismissal claims £2360.60 for the basic award and £3216.15 for the
compensatory award (inclusive of 12.5% ACAS uplift);
6. The recoupment provisions apply (see attached index).
Case Number: 1600728/2021
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REASONS
Background
1. The Claimant, Miss Kayleigh Letherby, was employed as a senior care
assistant at the Llantrisant care home by the Respondent. She was employed
originally as a care assistant on 12 January 2008 and ended her employment
with immediate effect when she resigned on 5 May 2021.
2. The Claimant asserts that she made protected disclosures in a grievance email
to Mr Zahar Sheikh (the owner of the Respondent and the Responsible
Individual “RI” for the care home) on 30 December 2020, which was followed
up by a repetition of those disclosures to “the authorities” in January 2021. She
says as a result of those alleged protected disclosures, she was subjected to a
number of detriments and constructively unfairly dismissed (both on an
automatic and ordinary basis).
3. The Tribunal noted that the Claimant had attempted to raise other claims in her
further and better particulars, but they were not accepted by Employment
Judge S Jenkins. The Claimant’s Counsel, Ms Mallin-Martin, at the outset of
the hearing confirmed that there was no claim relating to the alleged failure to
pay bonus payment before the Tribunal. During the course of reading
documents on day one, the Tribunal of its own volition raised a query about
what had happened to the claim of less favourable treatment due to being a
part-time worker that was within the further and better particulars; at the start
of day 2, Ms Mallin-Martin confirmed that it was withdrawn and it was dismissed
by the Tribunal.
The hearing
4. The case had been listed for a final hearing dealing with liability and remedy
for five non-consecutive days. At the outset of the hearing, the Tribunal noted
that the parties had failed to provide a suitable trial ready bundle (it was
unhelpful that several copies of some documents had been uploaded to the
document upload centre, causing confusion to the administration; the version
of the bundle being used by the Claimant’s representative differed in terms of
page numbers to that sent to the Respondent’s representative). The Tribunal
noted that it had been sent copies of recordings for which permission had not
been sought from the Tribunal to be played (the Respondent’s representative
confirmed that it was the Respondent who wanted the recordings played, but
on questioning by the Tribunal as to why permission had not been sought, Ms
Barlay, who appeared on behalf of the Respondent confirmed that it was
content for the transcripts only to be relied upon). The Tribunal also noted that
there were two annexes to the witness statement of Mr Sheikh; it was confirmed
that neither annex was within the bundle, neither had not been disclosed in the
appropriate manner and there were queries as to how they were relevant in
Case Number: 1600728/2021
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any event to the issues before the Tribunal. Ms Barlay had no objection to the
annexes being excluded.
5. The Tribunal noted that there were 11 witnesses to be heard, but that there
were queries about why the Respondent seemed to be seeking to call a twelfth
witness, Claire Thomas. Ms Barlay accepted that it was not appropriate to call
the extra witness, and the Tribunal adopted a pragmatic approach to the
witness statements provided by the Respondent’s witnesses and allowed those
witnesses to be called as they were not expected to take much time (with the
agreement of the Claimant’s representative). By day 4, three of these witnesses
were either refusing or unable to attend the Tribunal to give evidence (though
permission was given for Ms Gilligan to attend remotely as the Tribunal was
told her father was in end-of-life care, she did not attend). These witnesses
were not critical to the issues that the Tribunal needed to determine, and the
hearing proceeded (no application to adjourn was made).
6. The Tribunal also pointed out that the list of issues was unclear at points,
though it had not yet had the opportunity to check whether the matters asserted
were pleaded properly in the statements of case. Following some discussion of
these points with the representatives, it was ultimately agreed that the Tribunal
spent day 1 reading the documentation, while the parties worked together to
ensure that all the representatives and witnesses had the same version of the
bundle as the Tribunal, and the Claimant’s representative updated the list of
issues and a draft timetable for the Tribunal’s approval.
7. The next morning, day 2 of the hearing, Ms Mallin-Martin emailed the Tribunal
to provide an updated list of issues and confirmed that the parties now agreed
constructive ordinary unfair dismissal was not an issue, having not been
pleaded in the statements of case. After this, there was a further email where
Ms Mallin-Martin said that it was open to the Tribunal to find that the Claimant
had been unfairly dismissed for a reason other than the pleaded automatic
constructive unfair dismissal claim. The Tribunal heard submissions from the
representatives and gave oral reasons why it did not accept a finding of
constructive ordinary unfair dismissal could be upheld in the Claimant’s favour
without such a claim being an issue before it through the statements of case.
The Claimant then applied to amend her claim to include ordinary constructive
unfair dismissal, which was successful (oral reasons again were given).
8. The Tribunal had a hearing bundle consisting of 359 pages. The Tribunal heard
oral evidence from the following witnesses (after an initial delay of about an
hour caused by technical difficulties on the Tribunal’s part):
Kayleigh Letherby, the Claimant.
Kelly Andrews, the union officer representing the Claimant during her
disciplinary proceedings.
Sarah Ogunkoya (nee Merry), the deputy home manager.
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