Ordeal by innocence

Posted: 30th November 2018

 

This is a curious case.  We do not recall that we have ever seen a situation before where an employee has been dismissed not for the alleged misconduct which gave rise to the disciplinary proceedings but because of a view that the employee must have lied during the course of the process.”                                                                             Williamsons to Trowers and Hamlins 4 December 2017

 

In a written judgment dated 27 April 2018, following a day’s hearing in Southampton on 14 March, Employment Judge Salter concluded that Joanne Hammond was unfairly dismissed by her former employer, St Jude’s Care Limited of Weymouth, and was entitled to compensation and loss of earnings for the six months following her dismissal in June 2017.

In addition, Judge Salter agreed that Miss Hammond’s suspension prior to dismissal was in breach of contract and that she was entitled to the money that she would have earned during the seven weeks of her suspension pending dismissal.

Car picJo Hammond, an experienced senior care worker, joined St Jude’s Care in September 2013.  On 6 June 2017, she was dismissed summarily.  It was said then that her employer believed her to be the driver of a company car which had been captured by a speed camera travelling at 36 miles an hour in a 30 mph limit on the Weymouth relief road on 24 March 2017.

Miss Hammond denied throughout that she was the driver of the vehicle on that day.  She gave a full account of her movements prior to and at the time that the offence was alleged to have been committed and she offered witnesses to the fact that at the time of the speeding offence she was helping them with their weekly shop in a local supermarket.

St Jude’s Care, which employs nearly a hundred people from its premises at the Granby Industrial Estate in Weymouth, provides care and support to individuals in their own homes.  The company runs a fleet of pool cars that carers may use to visit clients in their homes.  Some carers have their own cars, but will still use pool cars for work and for that purpose drive to Granby Court, park up and collect the keys to a pool car.

On the day of the speeding offence, St Judes said that Car 3 had been allocated to Jo Hammond for the day.  They said that another member of staff had seen Miss Hammond come into the office and return the key to the car, although she did not enter the office and speak to anybody.

St Judes said also that the movements of all other employees were fully accounted for and did not accept the accuracy of Jo Hammond’s account of her movements prior to and during the alleged speeding offence.  They said that the picture taken by the speed camera matched her description.

Jo Hammond gave a meticulous account of her movements during the course of what was a Friday morning.  It was, in theory, her day off but from approximately 7:15 to 10:00 she visited three clients using her own car, since she did not consider the time and distances involved made it worthwhile going to pick up a pool car.

Shortly after 10:00 she went home, got changed and swapped cars for her father’s more accessible vehicle before leaving to pick up the elderly couple that she always took shopping on a Friday morning. She exchanged pleasantries with another carer she saw near to their home.  At the time of the speeding offence she was in Sainsburys and shortly afterwards text messages evidenced the fact that she was helping the elderly couple in the supermarket.  She then took them home.

The fellow carer wrote a letter to say that he had seen Jo outside the elderly couple’s home before she took them to the supermarket.  The elderly couple wrote to confirm that she drove them to Sainsbury’s and took them home. She was with them throughout the time they were there.  They produced their till receipt with the date - timed at 10:59.

St Jude’s Care declined to speak to or contact any of these people. They branded the elderly couples’ statement ‘flimsy’ because it had not mentioned which car Jo Hammond was driving.

No statement was taken or produced from the fellow employee who claimed to have seen Jo returning a key to the office that morning.  .

It’s difficult to see, literally, how anybody could insist that the photograph taken by the speed camera matched Jo Hammond’s or anybody’s, description but St Judes claimed to have received a clearer picture from the police.

That picture was never produced during the dismissal or subsequent appeal.  It had still not been produced when the proceedings finally ended on 26 October 2018, with an order by consent that St Jude’s Care pay a contribution of £12,000 towards the claimant’s costs.

The police did not prosecute Miss Hammond for the alleged offence.

St Jude’s Care also said, and pleaded in their formal response to the claim, that their investigation had included “taking statements from certain clients”.  No such statements were produced at any time, neither during investigation nor at the hearing of the claim.

In the course of the application by the claimant for an order for costs based on the alleged unreasonable conduct of the respondent during the proceedings, came the explanation that there had been “a simple error in the pleadings”.

Unsurprisingly, the tribunal found that the investigation was inadequate noting that St Jude’s Care:-

Failed to follow obvious and logical lines of enquiry (namely the witnesses who had given evidence in support of the claimant); had then presumed them to be lying; had ignored evidence it produced itself that corroborated the claimant’s account and failed to take a statement from [colleague] who appears to have been the key to understanding the timeline”.

In the course of considering whether to increase the compensatory award, Judge Salter remarked on the need for a fair investigation to look for evidence that points not only towards the accused employee but also away from her.

He concluded that the “unfairness was pronounced and the result of numerous breaches… series of important failures”.  He considered that the “failings are pronounced and obvious and the explanations given failing to speak to [witnesses] are based on unreasonable assumptions and guesses”.  He awarded an uplift of 15%. 

The most remarkable aspect of the case was that Miss Hammond found herself summarily dismissed, for gross misconduct, as a result of an allegation that she had exceeded a 30 mile an hour speed limit by 6 miles an hour.  She had never faced disciplinary proceedings before for anything, including an admitted offence of speeding on an earlier occasion, along with at least one other employee! 

It made no sense to her that she was dismissed for this, or that she should be suspended without work or pay for seven weeks whilst an inadequate investigation was carried out.

In her letter of 13 June, notifying St Jude’s of her wish to appeal the dismissal a week earlier, she asked them:-

Could you please clarify what actually constitutes gross misconduct under your policy and procedures – is it the speeding offence or my claim to be innocent?”.

This succinct and pivotal question was to be answered in the employer’s letter of 19 July, dismissing the appeal.  They told her:-

The decision to dismiss you was taken because of the culmination of events on and since the 24 March 2017.  A driving offence was committed and following that you sought to cover this up.  It is our belief that you have not been honest about your movements on the day in question and have fraudulently tried to mislead the company as to your whereabouts and the use of a company vehicle.”

Unfair dismissalMichael Williamson who ran the case says, “This was an alarming proposition.  Nobody in their wildest dreams could ever have thought that in these circumstances picking up an SP30 would amount to a sacking offence.

Plainly, the employers thought that they were entitled to conclude that Jo Hammond was lying and on that basis dismiss her dishonesty.  Quite apart from the fact that she was given no warning of this thought process, imagine the dilemma for any employee advancing an honest and sincere denial of an allegation of minor misconduct.  Would they then have to consider putting their hands up to something they hadn’t done rather than take the risk of being fired for, in their employer’s opinion, dishonestly pleading their innocence?!”.

“This is why”, Michael continued, “I made the observation that I did about this being a curious case.  In response to that, I was told by St Jude’s solicitor that “the tribunal will consider this to be splitting hairs”.

It didn’t.  The tribunal’s view was that:-

A speeding ticket for this respondent does not result in disciplinary proceedings, let alone a dismissal, I do not consider there was any chance of the claimant being fairly dismissed”.

St Jude’s Care paid only half of the tribunal’s award within the prescribed period and bailiffs had to be instructed before the balance was paid.  In the meantime, their solicitors mounted a challenge to the 15% uplift and the amount of the loss of earnings awarded to their former employee.

At the same time as dismissing both of those challenges, the tribunal also exercised its power to impose a financial penalty under Section 12 A of the Employment Tribunals Act 1996.  The tribunal had regard to the size of the respondent company, the severity of the breach, the nature of the rights breached, the behaviour of the employer and the submission of the respondent that they had no dedicated HR resource.

The employment judge concluded:-

It seems to me that it would be plain to any reasonable employer that dismissing someone for allegations of dishonesty that were never raised or canvassed with her is fundamentally unfair and is one of the most serious breaches of the principles of fairness there can be.”

He imposed a penalty of 50% of the award to the claimant but in line with the provisions of section 12A that was capped at a maximum of £5,000.

“Little wonder in all these circumstances that we saw fit to make an application for a costs order”, adds Michael Williamson.  This was based on the assertion that St Jude’s Care had pursued a hopeless defence and also had acted unreasonably in various ways during the conduct of the proceedings.

Complaints included the claim by the respondent to have a better photograph, which was never produced, and the “simple error” that they had taken statements from other clients, which they hadn’t.  It was also said on behalf of the claimant that the respondent had repeatedly disregarded the tribunal’s directions in relation to the size of the trial bundle and also deliberately exceeded the limit on the length of the witness statements filed.

Other conduct complained of was that at two specific points, early and late in the proceedings, St Jude’s Care had threatened Miss Hammond with the prospect of an application for costs as well as a separate civil action for breach of contract.

“It’s laughable,” added Michael Williamson.  “Ironic, too, in light of what was an appropriate case for a costs order against the respondent.  Costs orders in employment tribunal proceedings are a rare event, as most people know, although this is the sixth one that I have obtained in the course of approximately nine years.  All told, we reckon this curious case will have cost St Jude’s Care in the region of £45,000 where, with a frank and honest assessment at the outset, it could have been settled for a fraction of that sum.”

Jo Hammond said “it has been a bitter and very stressful experience but I’m delighted to have been vindicated. Williamsons did a fantastic job and we got the right result!”

Williamsons – November 2018