The claimant was employed by the respondent for the purposes of providing care services.  This was done through being on-call in a particular location, as well as having to drive to different jobs.  The claimant in this case faced disciplinary proceedings from his employer, which he felt was unfair. The disciplinary proceedings were started on the basis that the claimant had lied about his whereabouts and time away from work when he was driving the company car.  As a result of the disciplinary proceedings and how they were handled, he resigned from his employment, taking a claim to the ET for constructive unfair dismissal.

This claim was successful in the ET on the basis that there was a mishandling of the misconduct disciplinary proceedings. That being said, the ET found that the claimant had contributed to his dismissal to the sum of 5% of his award.  Another issue that arose at the ET was whether the claimant was entitled to the hourly rate of pay when he was on-call and sleeping in the particular institution he was on-call for.  The ET found that he was not entitled to the normal hourly rate, after looking at the contractual documents.

The respondent appealed the decision of the ET, contending that there was no unfair dismissal but, even if there was, the figure of 5% was too low, considering the conduct of the claimant, and that sleeping in should not give rise to the hourly rate being paid.  The EAT rejected the appeal in relation to there being no unfair dismissal on the basis that they were satisfied that the primary reason for the dismissal was the unfairness in the disciplinary proceedings.  On the issue of the contributory fault, it was held that the figure of 5% was ‘perversely low’ considering that the evidence demonstrated that the claimant was using the company vehicle for some ‘clandestine’ purposes.  For this reason and the fact that the ET found that the claimant had lied to his employers, the figure should be adjusted. This was then adjusted to 25% contributory fault.  The EAT held that the use of contributory fault is the proverbial ‘broad axe’ but there is the possibility of the EAT having oversight of the decision of the ET.

On the issue of ‘sleeping in’, it was held that the term ‘allowance’ used in the contract of employment was seen to cover the situation when the carer was sleeping in the particular residence.  Indeed, it was argued that there was an advantage to both the employee and the employer of having this service and that there should be adequate pay for this service.  For this reason, the claimant was entitled to his normal hourly rate when sleeping in.

Practical Lessons

This case demonstrates the extent to which there is a wide discretion in making a determination regarding contributory fault.  It was clear that there was an element of mischief or connivance from the claimant as his particular whereabouts when using the company car are still unknown.  That being said, the contributory fault was only awarded at 5% initially and this was upped but only because it was ‘perversely low’.

The EAT acknowledged that there is a degree of latitude that should be afforded in making such determinations.  That must be borne in mind in deciding whether to appeal a decision on the contributory fault that has been awarded.  Furthermore, on the issue of sleeping-in the EAT acknowledged that the law was not clear-cut on the payment that had to be afforded in this scenario but outlined that the Supreme Court were likely to make a decision on it in the future (see cases of Shannon v Rampersad and Royal Mencap Society v Tomlinson-Blake - both cases to be heard by UKSC on 12th and 13th Feb).  This is something that employers should be mindful of, especially if they have individuals who operate on call for part of their work.
https://assets.publishing.service.gov.uk/media/5e0dcf7940f0b6280d55cfbb/Parkview_Care_Ltd_v_Mr_D_Fenn_UKEAT_0112_19_BA.pdf