Cleaner whose boss told her GP she was lying about sickness was unfairly dismissed, tribunal rules

Judge finds council’s ‘extraordinary’ actions amounted to a breach of implied trust after manager ‘intentionally blocked’ worker’s complaints

A cleaner who resigned after her manager wrote to her doctor and alleged she was out drinking while “on the sick” and abusing company sick pay was unfairly dismissed, a tribunal has ruled.

A remote video link tribunal found that the letter, written by the Machynlleth Town Council town clerk to the GP of Pamela Wynn Newcombe, included information that went “far beyond that which was necessary” to request a medical opinion.

The tribunal also found that the council’s “consistent avoidance” of assisting Newcombe in progressing her grievance appeal or complaint left “no doubt there was an intentional blocking” by senior management.

Newcombe was employed as a cleaner by Machynlleth Town Council, based at a site known as Y Plas, from 7 May 2013 until her resignation on 3 June 2019. The tribunal noted that there were no issues with her performance and no disputes between her and any other person.

On 24 November 2017, Machynlleth Town Council expressed its intention to change Newcombe’s hours, and a consultation process started on 5 December. However, during the process the relationship between Newcombe and the acting town clerk, Miss Lumley, deteriorated to the point where Newcombe filed a grievance.

Newcombe met with the new town clerk, Mr J Griffiths, to discuss the grievance. Following the meeting, Griffiths sent a letter to Newcombe informing her that Lumley had been “spoken to” but that no formal warning had been given. Newcombe appealed through her union representative, Mr Jones, but received no response.

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Jones asked for an update on the appeal on 12 June 2018, upon which Griffiths responded alleging Newcombe had been posting “derogatory” stories on social media. He referred to a Facebook post made on 3 June where Newcombe said she was “not sorry that she left early from the Friday evening out”. He warned that this behaviour was “vexatious in nature” and that Newcombe could “fall foul of a disciplinary herself if not careful”.

Griffiths also alleged that Newcombe had been sick for a week but was “miraculously better on a Friday night and was seen by all out on a bender”. The tribunal found that Newcombe had no sickness absence on the week Griffiths referred to, but had been absent between 29 May and 1 June.

Judge Powell described Griffiths’ response and his assertions against Newcombe as “extraordinary” as it had not been addressed with her directly.

On 21 June, Newcombe noticed a question mark had been placed next to her medical absence on the sign-in sheet for the previous day. She launched a new complaint of bullying and harassment against Griffiths who, when informed of the complaint by Newcombe’s union representative, responded by saying Newcombe was “notorious for throwing a sicky” adding that for her to consider it bullying was “beyond comprehension”.

Powell said the question mark was a reflection of Griffiths’ belief that Newcombe was not being honest about her medical appointment, adding that he found this conduct to be “without reasonable and proper cause”.  

Newcombe began to feel increased anxiety, which the tribunal found “stemmed from her upset” of being accused of “throwing sickies”.

Her sickness absence led to a meeting with Griffiths on 10 October 2018 to discuss her reasons for taking time off. During this meeting Newcombe said her most recent absence was because of work-related stress and the meeting notes reflect that Newcombe said she would be willing to go to her doctors for documentation.

The tribunal heard that Griffiths alleged Newcombe gave him verbal consent to contact her doctor, despite her refusal to sign a permissive note for him to do so. On 7 December, Griffiths contacted Newcombe’s doctor by letter asking for clarification of her sickness and accusing her of being dishonest.

Griffiths wrote: “We have employed her on a contract that pays her full pay during sickness absence and it is becoming well known that she abuses this by constantly being seen out in local pubs when ‘on the sick’.”

He added that “the only stress being generated is by her partner potentially ‘gas lighting’ her”.

The tribunal heard that Newcombe’s sickness absence continued into 2019 and Machynlleth Town Council contacted its occupational health provider, Care Health Services, to conduct a telephone interview on 17 January 2019. 

Following the interview, Care Health Services produced a report that “unambiguously” detailed that Newcombe’s absence was due to workplace stress, panic attacks and palpitations. It said the ongoing stress was because “she feels bullied and harassed by both her line manager and the town clerk”, and recommended a mediation meeting.

Despite this advice, the council invited Newcombe to a medical capability hearing and detailed that the hearing could result in dismissal.

A few days before the intended meeting Newcombe’s GP informed her of Griffiths’ letter, which she told the tribunal was “devastating”. She filed a grievance with the council’s external HR advisor against Griffiths on 7 February. However, on 18 February three councillors met to consider the grievance and concluded that there was no need to use disciplinary action against Griffiths.

Newcombe did not appeal the decision. She received a letter from the council on 13 March inviting her to a meeting to review the “full history of work-related stress”, but Newcombe was unable to attend several meetings throughout April because of ill health and short notice. 

There was a further effort to arrange a meeting with Newcombe on 9 May but she decided that she “no longer wanted to take part in the process”, alleging that “last straw” was in response to a letter from the council on 20 May asking for her consent to a medical report being obtained.

Newcombe submitted her resignation on 3 June.

Powell concluded he had no doubt Machynlleth Town Council’s conduct “amounted to a cumulative repudiatory breach of the implied term of trust and confidence” and said there was an “intentional blocking of [Newcombe’s] complaints by the senior manager and an unwillingness to allow her to express them as a cause of her stress and anxiety”. 

Machynlleth Town Council was ordered to pay Newcombe £11,606 compensation for the loss of statutory rights and net loss of earnings.

Machynlleth Town Council has been contacted for comment. Newcombe could not be reached.