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SIC - Free Tyre Check - 22 Nov 2019

Court / Tribunal awards charity manager £20k for unfair dismissal

THE FORMER manager of a Shetland charity has been awarded almost £20,000 in damages and compensation for breach of contract, unfair dismissal and unlawful deduction of wages.

Mary Gifford had been employed as the part-time manager/co-ordinator of Shetland Care Attendant Scheme (formerly known as Crossroads), a Lerwick based charity providing respite for carers, since 2003.

In May 2018 Gifford raised a formal grievance against her employer after a colleague of hers had been promoted without prior consultation to the role of ‘joint co-ordinator’, effectively demoting Gifford from her duties as line manager, and hence amounting to a breach of contract.

An internal grievance hearing, held in June last year, rejected her complaints. Gifford’s appeal was also dismissed by the charity’s board.

In the decision of the employment tribunal, judge Alexander Kemp notes that there had been “no attempt at any stage thereafter by the respondent [Shetland Care Attendant Scheme] to seek agreement with the claimant on sharing of duties and responsibilities, and no such contract of employment was issued to the claimant, and her agreement on duties or responsibilities was never sought”.

Following a two week holiday, the 56-year-old registered nurse from Vidlin went on an extended period of sick leave due to “work stress”.

Since the Shetland Care Attendant Scheme had adopted the sickness and bereavement policy of Shetland Islands Council, which provides full pay for six months followed by half pay for six months absence through ill health, the charity continued to pay her full salary.

Gifford continued to work as a bank nurse occasionally after the period she went on sick leave on 30 July 2018.

The charity meanwhile arranged for Gifford to attend a fit to work assessment but an e-mail informing her of the appointment in early January this year was never received.

On 10 January the charity’s board unanimously decided to put Gifford on statutory sick pay (SSP), backdated to 1 December 2018, following advice that her contract did not specifically provide for sick pay, although on previous occasions of sick leave she and other employees had been paid in accordance with the council’s sickness policy.

Shetland Care Attendant Scheme also found itself in a difficult financial position with a projected deficit of about £10,000 for the 2018/19 financial year.

Gifford then handed in her resignation, alleging that she had been constructively dismissed by the decision to reduce her pay to SSP without notice and backdated, which she said was in itself a breach of contract.

In his decision to award Gifford £7,181.55 in damages for unfair dismal, £10,681.10 in compensation including £2,400 in lost contributions to the council’s pension scheme, plus £1,228.94 for unlawful deduction from wages, the employment judge described her as ‘very moderate, reserved and convincing in her evidence”.

In contrast, the evidence of the charity’s vice-chairman Alec Miller was described as “less convincing” and, in cross examination, even accepted that the decision to reduce Gifford’s pay was unfair.

The judge concluded: “There was a complete absence of consultation, either on the issue of the new job title, and related duties, or the proposal to change pay from full to SSP, and to seek to do so retrospectively.

“Consultation is a fundamental element of fairness. It was simply absent in this case. No explanation was tendered for that, and none was apparent from the evidence led.

“On both procedural and substantive grounds I concluded that the dismissal was clearly unfair.”

Responding to the judgement, Gifford said she felt publicly vindicated. “The last year and a half have been very stressful for myself and my family. I now hope I can put this behind me,” she said.

“It was very important for me to have public vindication and the acknowledgement that the situation I found myself in was not my fault.”

Shetland Care Attendant Scheme meanwhile said that it had a policy of not publicly commenting on staffing issues.

SCAS vice chairman Alec Miller added: “However, on this occasion SCAS wish to state that the above employment tribunal was defended on the basis that our liability insurers felt that we had a reasonable chance of winning the case.”

He confirmed that the charity would not suffer financially and the insurance would pay the settlement.

The employment tribunal’s hearing in Aberdeen was on 24 June this year. The judgement was made at the end of September and was published earlier this month.

SCAS is currently supporting around 60 families throughout Shetland by providing respite to family carers.