Sacked Capita accountant loses blackmail claim fight
A former Capita accountant who rejected a £10,000 offer to leave the firm, only to be sacked after accusing it of blackmail, has had her appeal against a failed employment tribunal case tossed out.
Assistant management accountant Mowe Saha claimed outsourcing firm Capita tried to bribe her into quitting after she attempted to whistleblow on improper working hours.
Saha emailed management accusing them of “blackmail” after receiving the offer of £10,000 to leave and was fired a few days later.
She took Capita to an employment tribunal in February 2017, but the court rejected her twin claims that the offer amounted to blackmail and that she was told she would be fired unless she took the money and quit.
The appeal was entered on July 30, 2018, and a judgment handed down on November 29, 2018, allowed it to move forward. Her appeal, heard last month, was rejected, and the decision was published last week.
“The case presented here is a clear outline of why settlement agreements can be tricky for employers to approach,” said Andrew Willis, head of legal at HR consultancy Croner. “For one thing, employees do not need to agree to the terms of the agreement and employers need to be careful in how they respond to this.
“In such a circumstance, the company will need to follow its usual disciplinary procedure to seek to dismiss the individual,” continued Willis. “As seen in this case, the fact that the employee’s conduct was severe enough to warrant a dismissal was enough to justify her employer’s decision.”
Working time directive
Saha had complained about the firm’s practices after refusing to work a proposed rota of 12 days straight to prepare the company accounts in January 2016, which would have totalled 76 hours.
She said she had worked for 14 days straight over the same period a year before, claiming this was in breach of the working time laws.
The EU Working Time Regulations stipulate that a worker is entitled to either two uninterrupted rest periods each of not less than 24 hours in each 14-day period, or one uninterrupted rest period of not less than 48 hours in each such 14-day period.
“There are occasions when workload demands that additional hours are worked, and this is usually accepted by a majority of staff,” said Bethan Southcombe, partner and head of employment law at Howells Solicitors.
“However, long working hours should not be the norm. If a worker is having to work excess hours each week, there is either an issue with their performance (which needs to be addressed as part of a performance improvement plan) or their workload is too much.”
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After laying out her concerns to management over the 2016 rota, relations between Saha and her seniors broke down as she escalated grievances and began to disrupt the workplace, the tribunal heard.
It was revealed that one of Capita’s managers was put on medication for stress that resulted from having to deal with Saha and her various complaints, as she attempted to circumvent her seniors and take her issues further up the chain of command.
Saha said her refusal to accept the proposed rota in the email was a “protected disclosure” under the Employment Rights Act because she was whistleblowing by alerting senior managers to a breach of the EU Working Time Regulations.
A tribunal has the ability to ‘fine’ an employer up to £10,000 if they blatantly ignore employee rights, said Beverley Sunderland, managing director of Crossland Employment Solicitors. “Here, the tribunal clearly considered that Capita had been pushed to breaking point by a difficult employee and did not fine Capita”.
The tribunal did allow the appeal on the point of whether Saha had made a protected disclosure.
“Employers often get confused and think if they can show that they are not breaking the law or failing to follow their own policies, then it cannot be whistleblowing, but that is not correct,” said Sunderland. “The test is whether Saha reasonably believed that her disclosure tended to show that Capita has failed, is failing or is likely to fail to comply with any legal obligation to which she is subject.”
However, it emerged Saha had worked for 12 days in 2015, not 14, and the tribunal dismissed her claim the rota had been falsified, which undermined her case and caused the appeal to be refused.
Without prejudice offer
A confidential mediation meeting between Saha and deputy group financial controller, Simon Mayall was held in which Mayall made the offer of £10,000 to leave the company.
Saha refused and sent a strongly-worded email to Capita’s then-group finance director Nick Greatorex on 7 December 2015 entitled “whistleblowing and blackmail” in which she laid out her issues.
“The purpose of without prejudice offers are so that the parties can have a private and confidential conversation to try and agree a resolution without this being used against one party or the other at court,” said Karen Holden, founder of A City Law Firm in London. “In this case, this would not be considered blackmail. The tribunal would have to satisfy itself that the employer dismissed her fairly and with due process.”
Employment law specialists said Saha had no case to accuse the outsourcing firm of blackmail, as its offer had been made without prejudice and as a result could not be used against Capita in court.
“Such offers, commonly known as settlement agreements, are a without prejudice and subject to contract offer,” said Deb Tweedy, head of employment and HR law at Gordon Brown Law Firm. “This is a confidential conversation between two parties, which cannot be relied upon at a later stage.”
The tribunal stood by the initial verdict that the offer was carried out appropriately.
“In terms then of the whistleblowing protected disclosure issue, the law is here to protect people from being dismissed because they flagged up a serious issue to their employer such as breach of the working time regulations,” added Holden. “The threshold test to substantiate the claim of this nature is quite high and not easily satisfied.”
Throwing out the appeal, the tribunal noted the “delicate line between dismissing someone because they have made a protected disclosure and dismissing them because of the way they made the disclosure”.
“It undermines the legal protection to accede too readily to a respondents’ argument that it is the way an employee raises the matter which has led to its action,” said employment judge Catrin Lewis. “However, in this case, we find the evidence overwhelming that the reason for dismissal was the breakdown of working relationships and the claimant’s mode of communication over a long period of time.”