In a recent case, a charity worker was awarded over £4k after she was unfairly dismissed. Apparently, she had no choice but to resign from her post after being employed by the charity for five years.
What Exactly Happened?
The Claimant, Miss Mutter, started working for the Respondent, Turning Point, as a lead practitioner. Turning Point Scotland is a charity that helps people with legal issues in areas like housing and criminal justice. It is a mid-size organisation with about 1200 employees, multiple departments and all the necessary policies like sickness, grievance, dignity at work etc.
As a lead practitioner, Miss Mutter was working within the criminal justice services and obtained an SVQ in criminal justice. She also had macromastia which meant she would often suffer from physical pain and psychological distress. On speaking to a GP, she was told to get surgery which was then communicated to her line manager, Michelle Wallace, and service manager, Kirsten Abercrombie. Both of them were aware of the nature of the surgery and that it was recommended by a GP because of the issues it caused. The surgery was set for 26th January 2018.
A discussion about pay when an employee is absent after cosmetic surgery was making rounds around the time, which is when the issues occurred. Miss Mutter’s surgery was not cosmetic but rather a medical recommendation. However, she was informed by Ms Abercrombie that she may not be paid the day she takes leave for the operation, or if she is absent after the operation.
This was very upsetting to Miss Mutter as she was aware that the company had policies which cover sick leaves. Moreover, she was later informed that HR was not sure if the surgery was indeed a medical recommendation and questioned its legitimacy. Miss Mutter felt unsupported but she was told she will not need to use her annual leaves. Instead, she was told that she will have to mandatorily meet with occupational health about 2 weeks after the operation.
After her surgery on 26th January, she was medically deemed unfit to work for 4 weeks. On 20th February, she informed Ms Abercrombie that she will return on 26th February and also inquired about the occupational health assessment. The assessment was then set for 28th February, however, it was cancelled by Ms Abercrombie for no real reason. In an email exchange, it was revealed that the OH assessment was to determine whether Miss Mutter needed any adjustments post-surgery but Ms Abercrombie said she was satisfied that no adjustments were needed.
On 14th April 2018, the claimant was asked to attend a meeting to “discuss her absence”. Miss Mutter was shocked as the absence policy stated that the advisory meeting will only be held if there is a reason to believe that the absence is not genuine. Moreover, the employee would have to be absent for four weeks or more, and only then can a meeting be arranged. The policy also stated that in such cases, they will not be given sick pay.
Miss Mutter attended this meeting and was given a formal warning. She then appealed this warning on the grounds that the nature of her surgery was not taken seriously and was seen as cosmetic. She was told by the Director of Operations, Wendy Spencer, that she will look into why she was treated differently in the outcome letter but there was no feedback.
Eventually, Miss Mutter was moved to another role as she was at risk of redundancy due to a lack of funds in the program she was working. She was on a four-week trial period and communicated to the Head of HR, Katherine Wainwright, that she would like to discuss more as she wasn’t sure if this role is suitable. She was told it was alright to discuss after Miss Mutter returned from holiday since Ms Wainwright or Hazel Carey, senior HR business partner, was not available at the time. However, before Miss Mutter came back from holiday, her trial period had ended without a discussion for alternate roles.
Upon discussion with Ms Carey, Miss Mutter was informed that there were only two other jobs she could pursue. One of which was a conflict of interest and the other was too far to travel to. This pushed Miss Mutter to accept redundancy. However, Turning Point did not consider her redundant as there was another role available which meant she was not entitled to redundancy pay. Instead, her email accepting redundancy was seen as her resignation and she had to serve her notice period.
What the Employment Tribunal Said
The Tribunal accepted that the claimant was not treated favourably with regard to the absences she took for her surgery and recovery. It was that treatment as well as her deteriorating relationship with her managers which pushed her to quit.
In addition, the Tribunal also rejected the claim that Miss Mutter had “resigned”. Based on the emails and findings submitted by Miss Mutter, it was clear that she was pushed to accept redundancy and then refused redundancy pay. Her grievances were not addressed appropriately right from the time she took time off after surgery which destroyed the trust and confidence Miss Mutter had in the company and her managers.
The decision of the employment tribunal can be found here