Saha v Capita Plc, Court of Appeal - United Kingdom Employment Appeal Tribunal, November 29, 2018,  UKEAT 0080_18_2911
|Resolution Date:||November 29, 2018|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Saha v Capita Plc|
Appeal No. UKEAT/0080/18/DM
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 30 July 2018
Judgment handed down on 29 November 2018
THE HONOURABLE MRS JUSTICE SLADE DBE
MISS MOWE SAHA APPELLANT
CAPITA PLC RESPONDENT
Transcript of Proceedings
VICTIMISATION DICRIMINATION - Protected disclosure
The Claimant alleged in her Particulars of Claim that the Respondent subjected her to a detriment because she had alleged in an email of 1 December 2015 that asking her to work certain hours would be a breach of the Working Time Regulations 1998. A list of issues agreed at the outset of the hearing of her claims, categorised the allegation as a working time claim under Employment Rights Act 1996 section 45A(1) and not one under section 48(1A), detriment on the grounds of making a protected disclosure within the meaning of section 43B(1). The Employment Tribunal erred in failing to consider the substance of the claim before them and wrongly categorising it in the list of issues as an allegation of past breach of the Working Time Regulations. Parekh v London Borough of Brent  EWCA 1630 applied. Dismissal of claim of detriment for making a protected disclosure on the only basis considered by the Employment Tribunal, endangering health and safety, set aside. Claim remitted to the same Employment Tribunal for decision on the claim that the email of 1 December 2015, contained a protected disclosure of a likely breach of the Working Time Regulations within the meaning of section 43B(1)(b). Ground 2 of the appeal which alleged an error in holding that another email, that of 7 December 2015, was not a protected disclosure dismissed.
THE HONOURABLE MRS JUSTICE SLADE DBE
Following a Rule 3(10) Hearing of the Employment Appeal Tribunal Rules 1993, the two grounds of appeal in the Amended Grounds of Appeal were to proceed to the Full Hearing of the appeal by Miss Saha (``the Claimant''). The Claimant challenges those parts of the Judgment of the London Central Employment Tribunal, Employment Judge Lewis sitting with members Ms L Chung and Mr I McLaughlin (``the ET''), the Judgment sent to the parties on 15 March 2017 (``the Judgment''). The ET held that two emails sent by the Claimant to the Respondent on 1 and 7 December, were not protected disclosures within the meaning of the Employment Rights Act 1996 (``ERA'') section 43B (1). Those conclusions led to the dismissal of her claims against Capita plc (``the Respondent'') of being subjected to detriments on the ground that she had made such protected disclosures and automatic unfair dismissal for whistleblowing. The ET held that the Claimant had been unfairly dismissed. They dismissed her claims for detriment and unfair dismissal in relation to Health and Safety. As before the ET the Claimant represented herself and the Respondent was represented by counsel Mr David Maxwell.
The Relevant Facts in Outline
The Respondent is a well-known outsourcing company with approximately 82,000 employees worldwide. After transferring from another role from February 2014, the Claimant worked in the Group Management Accounts team as an Assistant Management Accountant. There were 18 employees in that team. Ms Dreyer was her line manager. Ms Dreyer reported to Mr Mayall who was Deputy Group Financial Controller. The Group Financial Controller was Clare Waters who reported to Nick Greatorex, the Group Finance Director.
The material parts of the Claimant's role which may have a bearing on Ground 2 of the appeal were included in paragraph 19 of the Judgment. The ET recorded:
``19. The claimant's work comprised monthly reconciliation of balance sheet accounts and monthly reporting work. PRISM was the largest of the asset purchase reviews...A significant part of the claimant's role was to collect and verify support costs related to this build. She would spend approximately 50% of her time reviewing each item on the balance sheet which related to PRISM. This entailed checking whether there was evidence to support each item of expenditure as a cost against the project....''
The Claimant was concerned about the lack of time off in the work timetable given for her and the team for the year end 2014/15. At paragraph 30 the ET recorded that ``Thursday 1 January 2015 was taken as a day off being the New Year Bank Holiday. The team then worked Friday 2 January 2015... the Claimant came in on Saturday (3 January 2015) [but not the Sunday].'' Whether she worked on Friday 2 January 2015 was in dispute. ``The team worked from Monday 5 January 2015 through to Friday 16 January 2015''. At paragraph 31, the ET found that the Claimant was broadly correct when she said that the ``core hours of the team over this period were 9am-9pm Monday-Friday (5pm on the final Friday) and 10am-6.30pm on Saturday-Sunday with half an hour for lunch and 45 minutes for dinner......'' The ET found that two days off in lieu were offered for working the interim worked weekend.
For a variety of reasons, relations between the Claimant and her managers deteriorated.
On 19 November 2015, there was a team meeting to discuss arrangements for the year-end accounting process for 2015/16. The ET noted at paragraph 70 that the Claimant said, the hours were to be the same as the previous year. She considered these to be excessive. The ET held:
``On balance, to the extent there was any precision in the discussion, we find that the proposal was to work from Monday 4 January to Friday 15 January 2016, i.e. 12 days.''
On 1 December 2015, the Claimant sent an email to Mr Mayall copied to Ms Dreyer, Ms Waters and Mr Greatorex. The email, which is the first alleged protected disclosure, reads as follows:
``Please be advised that I will not be working the extended hours at year-end this year.
The reasons behind my decision are that: -
This is detrimental to my health given the fact that we worked approximately 76 hour weeks last year without a day's break (9am - 9pm weekdays, 10 am - 6pm weekends from 1 Jan to 15 Jan, 9am - 5.30 pm on 16 Jan 2014)
This is against the working time regulations which means the right to one day off a week.
It is not unreasonable to expect that we should have been compensated for these excessive working hours - a slice of cake and the chance to go home at 5pm instead of 5.30 pm on one particular Friday afternoon is, in no way, compensation for the effort put in by our team.
I'm sure you are very disappointed with this but I have considered my position on this matter very carefully, and I do not expect to suffer any detriment as a result of my decision.
Four weeks notice should provide ample time for you to address any impact on the year-end process.''
At paragraph 72, the ET observed that the Claimant had read the Working Time Regulations 1998 (``WTR'') before she wrote the email of 1 December 2015.
Following the email Mr Mayall held a meeting with the Claimant on 4 December 2015. In the course of the meeting he said he would like to make a `without prejudice' offer to terminate the Claimant's employment in return for a payment of £10,000. On 7 December 2015, Mr Mayall emailed the Claimant to tell her that the offer was open until close of business on that day.
At 14.55 on 7 December 2015, the Claimant sent an email to Mr Greatorex with the subject `whistleblowing and blackmail'. This is the second alleged protected disclosure. In her email of 7 December 2015 the Claimant wrote:
``I suffered a particularly distressing situation on Friday (4th December 2015, 10am, Room G.03 Rochester Row Office) where Simon Mayall offered me £10k to leave Capita with only a few hours notice. As I had taken Lizzie O'Brien to this ``informal'' meeting, Lizzie was able to speak on my behalf and stated, quite reasonably, that a few hours notice was not acceptable-therefore, the deadline was extended to COB today.
I would like to know whether or not you are aware of this ``without prejudice'' offer?
Are you also aware that without prejudice does not stand in cases such as bribery, blackmail or whistleblowing?
Is the offer made:-
because I exercised my right to not work 76 hour weeks without a break as this would be detrimental to my health and safety? Or,
because I have escalated only two issues to you under the Capita open door policy (Co 05 Property Refurbishments and the PC Refresh Project)?
Simon Mayall stated that he ``couldn't have me escalating issues to you'', and if I didn't take the £10k offer then I would be managed [presumably out] via my sick records.
Is that not bribery to keep my mouth shut and blackmail to take the offer?
I was not aware that my work was in question in any way and I have proven exceptional relationships with all my business contacts with improved business behaviour over the past two years.
If anything, I have gone above and beyond to benefit the company and this is how I am treated.''
The Claimant then summarised work she had done for the Respondent.
The ET found that on 15 December 2015, Mr Mayall told the Claimant that she was dismissed because the relationship between her and the Respondent had broken down and could not be repaired.
The Claimant lodged an ET1 on 22 December 2015. There were three Preliminary Hearings. On 22 January 2016, Employment Judge Goodman (``the EJ'') gave a Case Management Summary. At paragraph 5, the EJ recorded the issues between the parties which were to be determined. Those relating to public interest disclosure were set out in paragraphs 7.1 and 7.2.
A further Case Management Hearing was held...
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