Tribunal rejects claim care assistant was not told of her own dismissal

Monday 29 January 2018

The Employment Tribunal has rejected an unfair dismissal claim from a care assistant who alleged she was only made aware of her dismissal nearly 10 months after it had occurred.

Agnieska Swol was dismissed on 29 April 2016 after she failed to reapply for a Criminal Records Bureau (the “CRB”) check, but she told the Tribunal she only discovered this in February 2017.

Ms Swol started working for Barchester Healthcare Limited at Lakeside Village in St. Peter as a care assistant on 24 June 2013. On 6 December 2015, she had an accident and broke her right leg which required an operation. Her surgeon suggested she would need six months leave to recover and she informed her employer. 

On 5 April 2016, at an “absence review meeting” with her employer, Ms Swol was told she would need to reapply for a Criminal Records Bureau (CRB) check as her existing disclosure was about to expire. She was also asked to consider changing to a zero-hours contract which would give her more flexibility on her return to work. Her employer told the Employment Tribunal that Ms Swol would prefer such an arrangement.

Ms Swol did not apply for a CRB disclosure as she did not believe that it needed to be in place, until she resumed work. A zero-hours contract was sent to her on 11 April 2016. Ten days later, Barchester Healthcare sent her another letter stating that, as she had failed to deliver the CRB disclosure, they had no option but to terminate her employment on 29 April 2016. Ms Swol did not reply to this letter or to the one sent on 11 April 2016, and Barchester Healthcare proceeded as though her employment had come to an end.

Ms Swol said she did not remember receiving any letters from her employer “...except a letter containing a zero-hours contract which has been delivered in February 2016 for consideration.” As the only letter that had been sent to her enclosing a contract was the one sent on 11 April, the Deputy Chair of the Tribunal, Advocate Mike Preston, found that she had received that letter and the one informing her of her dismissal.

Pictured: Mike Preston, the Employment Tribunal Deputy Chairman.

After attending a Medical Board at the Social Security Department on 1 December 2016, Ms Swol was advised to seek some light duties from her employer to supplement her benefits. She stated at this time she still believed that she was employed. It was argued that her husband continued to deliver medical certificates to her employer and that she continued to receive sickness pay from them throughout 2016. However she was unable to produce evidence of such payments and her employer showed that the last payment it had made to her was on 21 December 2015.

She went to Lakeside Village on 17 February 2017 and was told she had not been employed since 29 April the previous year. She subsequently issued a form claiming that she had been unfairly dismissed. 

The Employment Tribunal Deputy Chair found that she had received the letter containing the zero hours contract as well as the one advising her of her impending dismissal. He noted: "It may be that she misunderstood that letter and proceeded under a misapprehension for almost a year that she remained employed but that does not alter the fact that the letter was delivered. Further, in all the circumstances, the Deputy Chair finds that the Claimant’s mistaken belief that she was still employed was not reasonably held."

The Deputy Chairman also noted that the employer's decision to treat Ms Swol's failure to produce the CRB disclosure as a reason to dismiss was reasonable. He therefore dismissed Ms Swol's claim for unfair dismissal.