Employment Tribunal Allows Claim Despite Tactics of Employer to Prevent Claim Progressing (Ms N Roberts v Cardiff County Council)

In the case of Ms N Roberts v Cardiff County Council, an Employment Tribunal rejects attempts by an employer to prevent a claim for unfair dismissal from progressing to a full hearing.

The Facts in Ms N Roberts v Cardiff County Council

Ms N Roberts (the “Claimant”) commenced work with Cardiff County Council (the “Respondent”) in February 2007 as a social worker.

The Claimant argued that during the course of her employment she:

  • was treated unfairly compared to another colleague in the way the employer’s policy was applied;

In December 2020, the Claimant raised concerns about a colleague. She argued the colleague had been allowed to return to work, in spite of his conviction for a drunk driving offence while on duty. A meeting to discuss her concerns took place on 15 December 2020, with two of the Respondent’s Mental Health Team managers. Shortly after the Claimant went off on sick leave from 17 December 2020 to 27 July 2021.

On 5 March 2021, the Claimant submitted a grievance where she raised her concerns about the treatment of the employee, who was allowed to return, in comparison with her treatment.  She argued that adjustments had been made in their case, but not hers when she requested them.

While parts of the grievance were upheld, she still appealed the outcome. Her appeal was heard by Jean Thomas, Director of Adults, Housing and Communities for the Respondent. This was also partly upheld in its outcome on 19 August 2021. The Claimant’s preferable outcome from the appeal was to move to a different team.  Ms Thomas explained to the Claimant the two possible options under the Respondent’s procedures. These were:

  • Temporary redeployment for up to three months as part of a return to work following her sickness absence. The Claimant could apply for posts during that period, in this case, a likely move to the Mental Health Service and Older People team (MHSOP);
  • Permanent redeployment that would require dismissal from her existing role in order to be eligible for deployment into another post (depending on vacant posts available).

On 27 August 2021, the Claimant met with Ms Thomas and discussed her options. The Claimant was not happy to proceed with the redeployment option as this would involve a dismissal. Instead, she preferred the option for a move to MHSOP as a temporary adjustment under the Respondent’s sickness policy.

Ms Thomas wrote to the Claimant, on 1 September 2021, sympathising with her concerns over having to be dismissed in order to be redeployed. As a compromise, she offered to arrange for her to undergo a trial period in the new post, before having to go through redeployment.

On 6 September 2021, the Claimant started a phased return to work in the new post in which she gradually increased from 25% up to 100% of her contracted hours over 13 weeks.  Subsequently, on 1 October 2021, the Claimant went off sick from work and did not return.

On 4 November 2021, the Claimant resigned citing amongst other things unfair treatment, anxiety, and stress caused by the Respondent. She submitted her Claim Form on 30 March 2022, ticking only the box relating to a claim of unfair dismissal, which she pursued on a constructive unfair dismissal basis.

In this case, the issues for consideration at the Employment Tribunal were –

  • Limitation period
  • Strike out
  • Deposit order

The Decision of the Employment Tribunal  

Limitation period

The Employment Tribunal found in this case that the misunderstanding by the Claimant of the conciliation process and settlement, along with mental ill-health meant that although the claim commenced after the limitation period, it was still submitted within a reasonable period, and it was not appropriate to strike it out 

Strike Out 

The Respondent’s application to strike out the Claimant’s unfair dismissal claim, because it was argued as having no reasonable prospects of success, was dismissed on the basis that there was a dispute on the facts.

Deposit order

The Employment Tribunal refused the Respondent’s application for a deposit order regarding the claimant’s constructive unfair dismissal claim, believing there was a ‘core factual conflict between the parties” to be adjudicated.  The evidence deserved to be tested at the tribunal, instead of forcing the Claimant to pay a deposit as a condition of continuing her claim. This was not an appropriate way to consider and test the evidence in a fair way.

Our Lawyers View

Steve Norton, lawyer at Redmans, says – Attempts by employers to prevent a case from being heard to avoid claims going forward, are common practice. But tribunals will often treat these with caution and be flexible to enable cases to be heard where there are arguable and have some reasonable prospects of success, which is in the interests of justice.

The decision of the Employment Tribunal can be found here