Mrs K Pilgrim v And Jasmine Care (Holdings) Limited — 2018

The claimant worked for Jasmine House Nursing Home from 2004. Her contract was amended in 2015 and 2017 so that her normal hours were up to 55 per week and her hourly rate rose to £15.50. On 19 December 2017 Dr Denning emailed that she was to be restricted to 48 hours a week and that senior carer work beyond 48 hours would be paid at no more than £10 per hour. The tribunal found that this was a unilateral variation of the claimant's contract, made without consultation, and that it breached express terms about hours and pay.

The tribunal found a series of further breaches of contract and of the implied term of trust and confidence in March and April 2018. It held that the claimant was underpaid during suspension because she was paid for 48 rather than 55 hours, that she was asked to repay over £50,000 during the investigation interview, that she was questioned about her passport and immigration status even though those matters were irrelevant to the fraud investigation, and that she was refused information needed to defend herself. It also found that the suspension and disciplinary process concerning alleged annual leave payments and working during annual leave, in the circumstances it accepted at Jasmine House, amounted to a breach of the trust and confidence term.

The tribunal found that these matters, taken together, amounted to fundamental breaches by the respondent. It held that the first breach occurred on 19 December 2017 and the last relevant act was the disciplinary interview on 19 April 2018. The claimant did not affirm the contract and resigned on 20 April 2018 in response to those breaches. The tribunal therefore held that she had been constructively dismissed within s.95(1)(c) ERA 1996, that the dismissal was unfair under s.98(4), and that she was wrongfully dismissed and entitled to notice pay.

The race claims failed. The claimant relied on her Afro-Caribbean origin and said the change in treatment followed her attendance at Mr CH's disciplinary hearing, but the tribunal found no evidence of racial motive. It accepted the respondent's evidence that its workforce was approximately 80% black and concluded that the claimant had not established facts from which discrimination could be inferred under the Equality Act 2010. Direct race discrimination and race-related harassment were dismissed. The complaints of indirect race discrimination and victimisation had been withdrawn. Holiday pay and unauthorised deduction from wages were not finally quantified in this judgment and were left for a remedy hearing; the tribunal recorded that the claimant's leave year ran from 1 April to 31 March and that 8 days had accrued.