“Seldom, very seldom, does complete truth belong to any human disclosure; seldom can it happen that something is not a little disguised or a little mistaken” (Jane Austen).
“If you tell the truth, you don’t have to remember anything” (Mark Twain).
Elizabeth Hodgetts, instructed by Anthony Collins Solicitors, acted on behalf of the successful respondent in Spencer v Unison Leicestershire Healthcare Branch (2603287/2020, Reserved Judgment & Reasons 16 May 2023), successfully defending claims of detriments on the ground of protected disclosures and constructive unfair dismissal.
The claimant, who was employed in a split role as trade union convenor – advising Unison Branch members about employment issues – and office administrator, resigned 3 months after being instructed to return to the office following working from home during the first Covid lockdown in 2020. The claimant’s case was that she was able to do her split role effectively at home, or could with some further adjustments; that a return to the office could put her, or her husband who had a health condition and was confining himself to home, at increased risk of contracting the virus; that the instruction to return conflicted with the relevant Coronavirus Regulations and/or Government Guidance and/or put health and safety at risk; that she became ill with stress and was then denied contractual sick pay; that she made protected disclosures about these issues; that her subsequent grievance was not investigated or concluded reasonably; and that she resigned in response to these matters. The claimant’s husband and adult son also gave evidence in support of her case.
Among many other similar findings on the claimant’s factual assertions, the Tribunal held:
(a) Relevantly both to the claimant’s assertions as to the work done at home, and asserted reasonable belief in a breach of the Regulations and/or Guidance:
She told us … that she was carrying out research into the guidance on a daily basis … During cross-examination she was taken to the regulations and guidance and demonstrably was unfamiliar with the wording and unable to understand the regulations. She confirmed in fact that she had not read the legislation at the time and did not understand it. … [The claimant] eventually conceded that her source of information was those briefings, and not the guidance or regulations themselves …
(b) Relevantly to the claimant’s later assertion that it was unreasonable to instruct her to return to the office:
Cross-examination on this point illustrated another example of [the claimant’s] unreliability. The simple question was asked: whether she had suggested to [the employer] that the Branch should close. She repeatedly said she could not recall whether she had said that or not, before eventually conceding that she had not made the suggestion.
(c ) Relevantly to the claimant’s asserted belief in a risk to health and safety:
She never asked for a copy of the risk assessment … She did not ask for a copy because, as she accepted in cross-examination, the risk assessment, and … the layout and space in the office were not issues.
(d) Relevantly to the employer’s suggested alternative:
[The claimant] described in her evidence in chief that the letter was … to advise she would be placed on furlough. This is objectively and plainly untrue. She conceded that characterisation was unfair in cross-examination, as she was bound to do so.
(e) Relevantly to the date of the decision to resign, and in turn, to the asserted last straw:
… she suffered what we believe is inexplicable amnesia over when she instructed her solicitors …When she was asked questions about instructing solicitors, she could not give any details at all. Given the significant length of her statement and apparent recollection of other matters, and general lack of credibility for reasons given elsewhere, we consider this forgetfulness is simply not genuine …
Similarly, in relation to the claimant’s son’s credibility:
He told us in evidence in chief that: “[The Branch] shrugged off responsibility the moment the words ‘whistleblowing’were first uttered, with a swiftness and callousness I have never witnessed in all my years of work”. This is a stark and strong statement. It gives the impression of an event that would stick in the mind. More stark was the contrast between that statement and the answers to the questions in cross-examination seeking detail. He was asked when the words were first uttered. We appreciate that a precise date or time is unlikely to be forthcoming. However we would expect some event, occurrence or precision the assertion could be linked to. Instead he told us only that they were said “Through conversations, we talk quite a lot.” When asked when, he replied “[I] can’t pin down a date, when she was first asked to return to the office.” When asked who said them, he replied “I wouldn’t recall.”
The Tribunal’s overarching conclusion was:
[The claimant] is an unreliable witness. We were very much left with the view that she wanted to work from home, would say what it took to secure that objective and, when she did not get her way, she would present things in as favourable light to her as possible to secure compensation. … we are quite satisfied that she has exaggerated matters or presented things in a misleading light …
The Tribunal found against the claimant on all the factual disputes. For the purpose of the PD claim, the Tribunal found that the pleaded disclosures were not made out on the facts, the claimant lacked relevant reasonable belief in the asserted grounds, and in any event she had not been subjected to detriments on the asserted grounds. For the purpose of the UD claim, the Tribunal rejected the claimant’s case as to the asserted last straw and found that there had been no fundamental breach of contract. The Judgment illustrates the simple point that while individuals are capable of creating powerful narratives in the documents and in their own minds, the Employment Tribunal will examine such narratives critically – and will make robust adverse findings where appropriate.
Written by Elizabeth Hodgetts