Ms I Janjua v The Marigold Facilities Management Ltd: 1301788/2023
EMPLOYMENT TRIBUNALS
Case No 1301788/2023
Between
Ms Iqra JanjuaClaimantThe Marigold Facilities Management LimitedRespondent
Before
Employment Judge CoddIn person for claimantNot represented for respondentDate 14 August 2024
JUDGMENT
[1]The respondent acted unreasonably in the conduct of the litigation.[2]The respondent shall pay the claimant’s preparation time and costs of £604.80.[3]This payment must be made by 31st of January 2025.
REASONS
Findings
[1]This Judgment deals with the claimant’s application for a costs and time preparation order dated 15th of August 2024.[2]The claimant was employed by the respondent and brought claims in respect of unpaid wages and unfair dismissal. Those proceedings came before me on the 17th of July 2024 where I issued a Judgment in favour of the claimant. These reasons should be read in conjunction with that decision.[3]The respondent requested written reasons for that decision, indicating an intention to appeal. Written reasons for the decision were promulgated on the 14th of August 2024, and the claimant applied on the 15th of August 2024 for a preparation time order. No appeal has been lodged by the respondent in respect of the substantive decision. Preliminary issues
Background
[4]On the 13th of January 2025 the respondent’s representative wrote to the Tribunal as follows: “We will not be participating in any further hearings or providing any further information. It was our understanding that the matter was concluded at the last hearing. Furthermore just as the claimant falsified information before and played the victim, she is doing likewise again. We have not wasted any of her time and simply raised genuine information requests which she delayed in providing. We have a business to run which requires a lot of time and effort and are in very challenging economic times. I hope you understand the demands on us.”[5]When I arrived at the hearing the respondent was not in attendance and I determined that I would continue the hearing without further recourse to the respondent, given their lack of defence to the claim and the fact that they had a stated intention not to attend.
Evidence
[6]I have considered the bundle prepared for the costs hearing and the statement of the claimant, in full. I have also reconsidered my substantive Judgment as part of this hearing. The claimant has provided helpful and concise submissions and she has responded to my questions where required. The Law[7]The Employment Tribunal Rules of Procedure 2024 set out the procedure for a wasted costs and preparation time orders at rules 72 to 82. I have considered those rules in full. The relevant rules for this application are: 74. —(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. The amount of a preparation time order 77. —(1) The Tribunal must decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on the preparation time spent, and (b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £44 and increases on 6 April each year by £1. (3) The amount of a preparation time order must be calculated by multiplying the number of hours assessed under paragraph (1) by the rate under paragraph (2) which is applicable to the year beginning 6 April in which the preparation time was spent.[8]Rule 76 also deals with the costs of legal representation and bundle preparation which the claimant also claims. I have also considered this rule. Rule 78 deals with wasted costs.[9]In the first instance, I must decide whether the circumstances described in Rule 74(2) are established. If so I must go on to consider whether I should make an award and at what value.[10]The standard of proof is the balance of probabilities and the burden rests on the claimant.
Findings
[11]The proceedings were due to be heard on the 29th of February 2024. However, upon application of the claimant this was postponed. The respondent failed to engage with that application. The claimant’s application was dated the 5th of February 2024, which is outside of the rules timeframe described in Rule 74(2) (c), regarding costs orders. However, it is relevant that the reasons for the request was that the claimant had not received the grounds of resistance from the respondent and the respondent did not engage. This is part of the picture of the respondents conduct.[12]The claimant had not received all of the Tribunal’s directions, but in any event the respondent had failed to comply with its own obligations at this point, which was relevant.[13]Employment Judge Meichen set a new timetable for the proceedings and case management, towards the hearing on the 16th of July 2024. The bundle was to be agreed in April 2024 but the parties agreed an extension to the 29th of April 2024, by mutual consent.[14]I can see that in the emails provided that the bundle was not agreed. I accept the claimant’s narrative that the respondent had failed to download all of the material she sent in disclosure. However, there was some back and forth about the quality and ability to download the documents, which I give due latitude and allowance for.[15]However, it is clear from the emails that the respondent had not properly engaged with its disclosure obligations in a timely and appropriate manner. I made findings at paragraph 47 of my original Judgment, that the respondent’s bundle was skewed. “47. Mr Wajid Hussain attempted to portray that the claimant was projecting a victim mentality and that he was bending over backwards as it was never enough. I am sure that the claimant was confrontational at times and demanding, including text messages at night. However, I find the messages selected by the respondent to be skewed and only a selection. The claimant’s bundle shows that they were incomplete to the substantial disadvantage of the claimant, and I take judicial notice of this.”[16]The respondent did not provide a bundle to the claimant until the 4th of July 2024, some 10 days prior to the hearing and upon examination it was missing essential documents (as I commented at paragraph 47 of My Judgment).[17]This resulted in statements arriving within very short order of the hearing and as I noted at paragraph 73 of my Judgment; a substantially expanded list of allegations against the claimant from the original dismissal decision. “73. The claimant was then off sick and during this time settlement discussions ensued. Which ultimately culminated in dismissal. It is noteworthy that the matters in the dismissal letter are then significantly expanded in Mr Hussain’s statement. The expanded matters relied upon, have had little focus in this litigation, and there seems to have been little attempt to evidence the concerns.”[18]Having considered the holistic nature of the emails and disclosure, taking into account my findings detailed above, I am satisfied that the nature in which the litigation has been conducted by the respondent has been unreasonable, from February 2024 onwards. This satisfies the requirements of Rule 74 on my finding.[19]Accordingly I find it is appropriate to make orders for the claimant’s preparation time and costs. I shall go on to consider an assessment of what to award.
Evidence
[20]The claimant was unrepresented in the proceedings. Her bundle includes invoices for sporadic legal advice. I have considered whether to make a costs order for the legal advice which the claimant received. However, I am not minded to do so. This may well have been advice which the claimant undertook as part of the proceedings, irrespective of the conduct of the respondent. Some of this advice in 2022 and 2023, pre-dated the conduct to which my findings on unreasonableness related. I also note that advice from August 2024 onwards postdated the litigation. The claimant claims no costs associated with this application. There seems to be a narrow window of advice undertaken in 2024 when the issues were relevant. I have not been provided with adequate details of why those cost were wasted, or incurred as a result of the litigation conduct. The claimant’s statement is inadequate to discharge her burden in this regard. on balance I consider it unjust to make a costs order for those legal advice costs.[21]Having considered the claimant’s schedule of loss regarding her preparation time, the correct rate is £44 per hour. I am satisfied that the claimant should recover 4.5 hours time spent for preparing her bundle. This was necessary and essential for the findings I made at paragraph 47 of my original decision.
Issues
[22]I am further satisfied that the amount of time taken to correspond with the respondent about disclosure should also be included. This was a failure of the respondent to properly comply with the directions of the Tribunal and the piecemeal and incomplete nature of disclosure. I award 3.5 hours as claimed for this purpose.[23]I award a further 4 hours for the inevitable difficulties created in cross-referencing the disclosure provided with the bundle and additional preparation time created.[24]However, beyond this, I make no further award of preparation time. Further time would have been required by the claimant in any event for the proceedings preparation and I do not consider it just or equitable to make any further time award beyond this.[25]The total time I award is 12 hours at £44 totalling £528.
The Law
[26]I note the claimant also incurred expenses in producing her own bundle. This was absolutely necessary and was essential to my analysis regarding the incomplete nature of the bundle. I award the costs incurred of £76.80 in this regard. The total award is £604.80 That is my Judgment.[1]Following the hearing on the 18th of July 2024, the respondent wrote to the Tribunal requesting written reasons for my decision, signalling an intention to appeal my decision. At the time of writing, no application for reconsideration has been received by the Tribunal.[2]The claimant brings claims of unlawful deductions from wages, failure to pay annual leave, breach of contract in respect of notice pay and unfair dismissal.[3]The claimant has appeared in person representing herself at this hearing. The respondent is owned by a sole director and shareholder, Mr Wajid Hussain. The respondent has been represented throughout, by Mr Babir Hussain, the brother of Mr Wajid Hussain. Background[4]The claimant was employed by the respondent, a wedding and events hospitality venue. The claimant initially commenced employment on the 10th of February 2020 on a limited contract for 6 hours a week. I have not been provided with the contract that she entered into and on balance I conclude at that time there were no written statements of employment particulars.[5]During the covid pandemic the venue was closed but many staff were retained. The claimant asserts that her hours increased, although no documentary record was kept of the level. From her P60 the claimant could be said to be earning an average of 15 hours per week for the year. The claimant asserts that she worked many more hours than she was paid for, but has been clear that she does not bring that claim and I make no finding in in relation to unlawful deductions for the period prior to 2022.[6]The respondent asserts that there have been persistent and ongoing issues with the claimants character, work personality and interactions which has created a hostile working atmosphere in which many employees were stressed about attending the workplace.[7]The claimant has asserted that her hours and rota were routinely changed and that she was subjected to an underpayment of her contractual hours from February 2022 onwards.[8]The claimant was offered a new contract in October 2021 referencing the 30 hour provision, which is the subject of this dispute. The claimant did not sign this contract. Mr Babir Hussain has asserted that it is unsigned and may be unenforceable.[9]It is common ground that the claimant held various roles and was almost peripatetic in what she did. Much of the work appears to have been to an adequate standard.[10]In March 2022 a meeting took place which was heated and arguments between staff ensued.[11]The claimant persisted in seeking a return to her role in marketing, and requesting a rota which reflected her contracted 30 hours per week. She contacted Mr Wajid Hussain repeatedly at various times of the day and night. He responded also, at all hours.[12]On the 2nd of July 2024 the claimant worked her last shift. She informed Mr Wajid Hussain that she would not be coming in the following week, because she had not been provided with enough hours. It has been referred to as a strike, there seems little doubt that she withheld her labour. The week that followed this the claimant did not receive a rota and was not contacted to work. She argues the lack of hours amounted to an unlawful deduction from her wages.[13]On the 21st of July 2022 the claimant was invited to a disciplinary meeting which she secretly recorded and transcribed. That meeting imposed a warning sanction on the claimant and a purported period of performance management of one week. The claimant argues that following this she never received a rota to return to work. The claimant was then signed off sick on the 29th of July 2022 for a month.[14]On the 20th of August 2022 a meeting referred to as a “pre-dismissal meeting,” took place (during the claimant’s sick leave). During the hearing, I determined that I could consider material associated with this meeting as I found that the respondent has waived privileged in this regard (throughout their evidence), and has disclosed that the purpose of this meeting was to discuss terms of settlement. The claimant involved a solicitor and the talks broke down.[15]When the claimant’s sick note expired she was not provided further shifts and appears to have remained suspended. She continued to receive pay whilst suspended.[16]On the 20th of October 2022 the claimant was dismissed by letter. She sent an appeal letter on the 26th of October 2022. There is nothing within the bundle to evidence a formal response to this.[17]The claimant contacted ACAS on the 8th of October 2022, for early conciliation, which concluded on the 11th of November 2022. She issued her claim in time on 3rd of February 2023.[18]The claimant claims that there has been an unlawful deduction from her wages and she was paid less than her contracted hours. This has also affected her notice pay and she claims her notice was insufficient. In respect of her dismissal she claims this was unfair and the reasons cited in the dismissal letter are not the real reason.[19]The respondent avers that the dismissal reasons was some other substantial reason, namely to restore the harmony of the office. In respect of wages claim, the respondent has averred that they had, if anything overpaid the claimant and that the contract allowed a reduction in the number of hours (week to week) subject to the business need, and no holiday or further notice pay was owing. Evidence[20]I have considered the respective bundles prepared by each party. There has been some issue of disagreement regarding disclosure, resulting in the claimant producing her own bundle, in addition to the respondents.[21]I have heard evidence from the claimant. For the respondent, I have heard from Mr Wajid Hussain, Zara Rahmen, Moriom Karim, Lubna Suleman and Heena Mahmood. I heard detailed submissions from the claimant and Mr Babir Husain. Issues[22]The following issues will need to be considered as part of the factual determination of this claim.[23]Unfair dismissal:a. Was the claimant dismissed? It is agreed that she was dismissed on 6th of October 2022b. What was the reason or principal reason for dismissal? The respondent says the reason was some other substantial reason (SOSR).c. If the reason was SOSR, did the respondent act reasonably or unreasonably in all the circumstances, including taking into account the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant?[24]Wrongful dismissal - Notice pay:a. What was the claimant’s notice period?b. What was the claimant’s weekly contracted hours?c. Was the claimant paid for that notice period?[25]Unlawful deductions from wages:a. What hours was the claimant contracted to work?b. Could these be varied by the respondent?c. What hours were paid?d. Should any reductions be made for sick leave or absence?e. Was the claimant owed any holiday?
The Law
[26]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that she was dismissed by the respondent under section 95, but in this case the respondent admits that it dismissed the claimant on the 6th of October 2022.[27]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[28]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[29]The respondent has relied upon the case of GM Gorfin v Distressed Gentlefolks Aid Association [1973], in effect to justify the restoration of workplace harmony as the grounds relied upon for SOSR.[30]In respect of Unlawful deductions from wages, S13 of the 1996 Act enables redress if a wage which is properly payable is not paid to a claimant. This is a question of fact to be determined on the evidence, as is the question of whether the correct holiday was paid.[31]Where an issue turns on the interpretation of a contract, again this is a matter for the Tribunal to weigh on the facts and the normal principles of common law apply. Where there is an ambiguity in a contract which renders it potentially unfair, this is generally resolved in favour of the employee.[32]The standard of proof to be applied to all matters is the balance of probabilities. Findings of fact.[33]At the outset of my analysis it is important to remind myself of two important factors. Firstly that individuals sometimes lie or omit such material facts as to amount to a lie by omission. There are a variety of reasons why an individual may lie, and they are varied and complex. Just because an individual tells a lie, or omits the truth about one fact does not mean that they have lied about everything. Secondly, it is important to note in this context that human memory is not infallible and is highly susceptible to change over time. Even an honest witness may mislead the Tribunal due to the distortion of memory over time.[34]I have had due regard to the fact that both parties are unrepresented and I have provided latitude and assistance where necessary.[35]The claimant was offered a new contract in October 2021 referencing the 30 hour provision, which is the subject of this dispute. The claimant did not sign this contract. Mr Babir Hussain has asserted that it is unsigned and is therefore unenforceable. I reject that at the outset. Mr Wajid Hussain seeks to rely (throughout the pleadings) on its terms and in particular the ability to vary the weekly hours. It would not be appropriate in those circumstances to pick and choose between the terms which are favoured, and those which are not, in terms of enforceability. All parties thought it was active and enforceable (albeit they interpret it differently) and I find that to be the case. I say this at the outset to avoid further ambiguity, and I shall interpret the claim based on that contract.[36]I have heard evidence from an number of witnesses. Aside from the Claimant and Wajid Hussain, no witness has been able to assist with the claimants terms and conditions, holiday pay, rate of pay, hours. I place no weight on their evidence in this regard. Save that all witnesses say that the claimant worked above her hours, no one was in a position to say what those hours were.[37]I place no weight on the evidence of Ms Heena, she was not present in the workplace at the material time.[38]In respect of the other witnesses, they spoke to issues of conflict and the claimant using excessive bathroom breaks, as well as the claimant creating a stressful environment. In respect of their narratives, there is no document trail which I have been pointed to support their assertions. In the main these are vague, and not quantifiable in terms of dates and severity.[39]However, what I took from their evidence was that there existed a generalised culture that the claimant was at best tolerated and at worst they perceived she was the cause of issues. Ms Karim, spoke about nitty gritty issues about appointment times. There was little substance to her evidence. I am not persuaded that Ms Karim is the author of her statement. Her name is repeatedly spelt incorrectly, a matter which I do not perceive she would have allowed to occur if she was the author. When I questioned this with her, I found her to be evasive. I find that this was written for her and she was asked to adopt it. Its value is therefore not probative or reliable.[40]Matters seem to have come to a head in March 2022 when the claimant said she was doing a lot of the work and an argument ensued.[41]I am satisfied that a meeting was called to discuss job roles in order to have a clear demarcation, of who was doing what. The claimant had been moved around a lot in terms of her role. Her role in March 2022 was unclear to me and I find it was unclear to everyone else in the business as well, including the claimant. Lubna Suleman seems to have taken particular issue with the claimant. She had sought Wajid Hussain’s intervention for the demarcation or roles and her evidence was telling that he failed to provide that leadership (despite being in the meeting). Something which is a re-occurring theme.[42]In her evidence Ms Ryman said that Ms Suleman had been provoked and reacted. I find that Ms Suleman was culpable for starting this argument and was abusive to the claimant. I find that all of the witnesses have been evasive about this incident in order to protect Ms Suleman, and Mr Hussain. I am sure the claimant defended herself, but it must have been apparent to the claimant that she was disliked by the workforce, and I find that to be the case.[43]I find that the purpose of the meeting in March 2022 to have been orchestrated by Ms Suleman to curtail the role of the claimant and what she perceived as her over reach. Ms Suleman was in a position to have the ear of Mr Wajid Hussain. I find that she was evasive when responding to whether she had discussed with Mr Hussain the issues she perceived with the claimant. I find on balance that there was pressure from the workforce in relation to curtailing or removing the claimant, being applied to Mr Wajid Hussain.[44]The reason for this appears clear to me and it vests in a total absence of leadership from Mr Hussain. There is no management structure. There is clear inconsistency in the way he has approached staff. He has tried to appease issues when it is easier and ignored issues when they are more complex. This has led to a culture of dissent and survival of the fittest in the workplace. The claimant was vulnerable in this regard. He has allowed a febrile atmosphere to fester in the workplace, without questioning if there is more than one person at fault, or looked to his own conduct.[45]I have no doubt that the claimant was difficult to manage. She was making requests of Mr Hussain. However, she was also vulnerable. From the outset she was employed on a minimal contract of 6 hours. I find she never had a statement of terms until October 2021.[46]Mr Wajid Hussain was vague to the point of dishonesty in his evidence. He could not recall what the claimant’s hours were. He could have checked prior to this hearing. He pleaded ignorance as to whether they had increased after lockdown, as “everyone was mucking in”. From the P 60 for the year 2021 / 2022 it is clear that the claimants hours increased to something akin to a 15 hours a week average.[47]Mr Wajid Hussain attempted to portray that the claimant was projecting a victim mentality and that he was bending over backwards as it was never enough. I am sure that the claimant was confrontational at times and demanding, including text messages at night. However, I find the messages selected by the respondent to be skewed and only a selection. The claimant’s bundle shows that they were incomplete to the substantial disadvantage of the claimant, and I take judicial notice of this.[48]The claimant has submitted four grievances. The last being after her suspension in August 2022. With respect to the first three, I am satisfied that these were sent to Mr Wajid Hussain. In my finding he wilfully ignored these. He has attempted to pretend he has not seen them. I find that he has been sent them, he knew full well that he had them and he chose to ignore them. It is common ground that the fourth grievance was not actioned as the dismissal had already taken place.[49]The manner in which Mr Wajid Hussain has perceived the claimant’s issues, portrayed a substantial imbalance in the power. He has conducted himself without regard to his own policies and contractual terms. The manner he referred to the claimant in, was attempting to appear as kind and caring and hospitable, but in my finding his evidence was underscored by a passive aggressive derogatory view of the claimant. There was on my finding a clear attempt to denigrate the claimant.[50]In October 2021 he offered the claimant a new contract. That contract contained a provision, at 6.1 in respect of working hours. It states; “Your hours of work will be 30 hours a week, based on a rota assigned to you. This can be changed at any given time by the company to accommodate the operational needs of the business.”[51]Mr Babir Hussain argued that this was in effect a zero hours contract and the second sentence allows a reduction. If that logic is followed it could reduce to zero. I find this term to be ambiguous. It could easily be read that the hours are 30 hours per week and it is the rota that is subject to change, which I find to be the case.[52]This is not a zero hours contract and to operate it that the hours could be reduced without consultation would be manifestly unfair. All of the actions of the respondent have been to portray the contractual engagement at 15 hours per week, except when it came to calculating the notice pay, then it is said to be 7 hours. The respondent’s analysis of the hours has been confusing and contradictory. The pay slips from October 2021 to January 2022 clearly shows the claimant working rates above or close to 30 hours per week.[53]I find that the claimant’s basic hours were 30 hours a week and a failure to remunerate at this level is clearly a breach of this term, and would amount to an unlawful deduction from wages.[54]In paragraph 9.1 of the contract, holidays are discussed. This says holidays will be pro rata. But there is no calculation of the rate per year based on the 28 day provision. This could have been easily specified. If it was a truly zero hours contract the leave provision would have required an entirely different formulation of accruals based on hours worked. This was not the case.[55]In paragraph 12 the contract deals with pay during absence. It states that no pay is provided for sickness absence. It does not consider the requirement to pay SSP. It ignores wholescale the SSP requirements of Regulation 5(2) of the Statutory sick pay (general regulations) 1982. In this case the term is unfair and must be disregarded.[56]In respect of termination and pay during notice, the contract is clear that the claimant would be entitled to two weeks pay given the time worked (if notice was not worked). The payslips are ambiguous and no one can tell me what was paid to the claimant, how this was broken down or the rationale. I find that the claimant has not been paid her adequate notice pay and has only received 15 hours of pay for the month of November.[57]I have dealt with this matter for ease of reference to the contract as it is important for the chronology which follows. Returning then to consider the chronology to dismissal. As I have said I consider pressure was being brought by other employees.[58]The claimant had also been raising concerns (rightly so) that she had received too few hours. I see no reason why a rota was required for the admin to determine the number of hours. When and where they worked was up for debate, but the number of hours was clear from the contract. In those circumstances the claimant was justified in raising a complaint or grievance.[59]On the 4th of July she effectively withdrew her labour. No doubt causing issues for the team and I find that this was the catalyst for Mr Wajid Hussain doing something about the claimant’s situation.[60]The claimant was wrong to withdraw her labour. If her wages were underpaid she had recourse to this Tribunal. However, I can sympathise that the control and power vested with Mr Hussain and he has treated her employment conditions as elastic to be altered at his whim. This will have caused the claimant stress and anxiety.[61]I find in the claimant’s favour that after this week she was in effect suspended without being provided a reason. Although partially the reason must have been clear to her, and stemmed in part from her withdrawal of labour.[62]The claimant was called to a disciplinary meeting on the 21st of July 2022. I find she was not told this was a disciplinary meeting, even though she could be accompanied. At no point was she told that this was a disciplinary meeting, prior to a sanction against her.[63]The meeting was secretly recorded and transcribed by the claimant, no issue has been taken with the accuracy of that transcript. I have considered it in full.[64]Mr Hussain commences the meeting by announcing the sanction. “A 1 week warning - for the issues and we will see any improvements.” That as a sanction is entirely ambiguous. It is also concluded without providing any details of an investigation, or the opportunity to the claimant to contribute. In short he decided first and asked questions later. Taking into account the lack of management structure it was necessary for Mr Hussain to investigate the issues. Such investigation is not recorded and I find a reasonable investigation did not occur and the sanction was pre-judged.[65]Whilst some of the issues discussed in the meeting related to Mr Hussain himself (such as the texting he refers to), there does not appear to have been any previous discussion with the claimant to address these issues. Such a discussion would have been a reasonable step.[66]In the transcript Mr Hussain acknowledges that he has not brought complaints up previously as he did not wish to upset the claimant. She therefore had no opportunity to address this. Where allegations were stated in the meeting, they were vague and unsupported in such a way as the claimant could not respond fairly.[67]The claimant points out simple steps that Mr Hussain could take to verify his claims (such as checking the shared inbox) and he acknowledges that he only does this sporadically. A simple investigatory step he could have taken to verify an accusation he was making. However, he chose to deliberately ignore this.[68]In particular he highlights the conflict between the other employees and the claimant, but fails to consider if this was justified or whether any other staff are culpable, for example: “WH: But the point is, Lubna had that go at you, Moriom’s had several go’s at you. The only person who probably hasn’t is Zara. Rukhsar’s had several go's at you, so as me, standing here looking at this, who is the common person?”[69]He fails to consider whether the claimant may be being bullied and makes a series of manifestly flawed assumptions, that it is the claimant who is at fault. He does not explore what the arguments were about, or the claimant’s perspective as discussed in the transcript below: IJ: Yeah, but that’s unfair to say that because in workplaces, you do have certain people targeting one person. So it can be, I’m not saying it's something that they’re planned, it could just be random, but it's called bullying. That’s what it is. It does happen in workplaces where it's targeted to one person. WH: Yeah, you’re right. It does happen, it's a big issue. But the thing you got to realise is, bullying only happens if there is a reason for why that person is bullying you. So, what's the reason? IJ: So, you mean, the victim is responsible for the bullying? WH: No, so the point is here, you got to think. You have been here 3 or 4 years, it's not as if you were here for a year or 3 months. Some of these people you’ve known longer, they don’t switch on you and start bullying you in an instant. Rukhsar’s only been here a few months, so that means she's a bully, because she has been here a few months. Before that, Moriom’s a bully. Before that, Lubna’s a bully. So, then I’ve got to think, if that person’s being targeted, how come even when new people are coming in, they are targeting that person? IJ: That’s what I want to know. ……….. WH: You’re basically, which no other staff member, I don’t think so other than one person I can remember. You’re constantly very emotional. No manager wants to deal with a staff member who is constantly emotional, because then they feel that the workplace has made this for them. I don’t want to be a person going home, because that's not in my nature, but when I go home, I don’t want to be eating dinner and thinking, oh Iqra’s cried her guts out today. The Marigold’s doing this, the staff are doing this, I might be doing this, and that's not something I want on my conscience. I want to come in and see someone happy and smiling, ok personal problems at home are a separate issue. You could have a million problems at home. ……. WH: So that brings us back to one of the points in here which is, everything I say never gets registered. IJ: No, but you still haven’t even put forward anything. WH: So, everything I say is always, “No, but...” It’s like I’m at home with a teenager. That’s not how the employee’s reaction is. The employee should say, he’s made these points, they are valid, and the response should be “Waj, you’ve made that point. It's a very true point. I have been emotional. I shouldn’t be crying in front of you. There is no reason for it. IJ: But I feel helpless because the issues not been resolved. I’m not being listened to. WH: I told you, through your journey here, if I deal with one, something else pops up. IJ: No, but which of my complaints have you dealt with, and it's been resolved? WH: So basically, that's the point I’m trying to make. You feel that nothing ever gets resolved. IJ: Nothings ever been resolved. I’ve never come to you and had something get resolved. So, I’m feeling helpless about it.[70]I have sympathy for the claimant in the way this meeting was conducted. At best the attitude of Mr Hussain was tactless, at worst it was misogynistic. It also acknowledged and then ignored that he may too be responsible for upsetting the claimant. The upshot was a clear message to the claimant, that Mr Hussain did not want to consider the issues raised by the claimant and was not going to address them. He wanted her in short to keep quiet, settle down, not upset anyone and smile. The power imbalance was again clear, as was the way Mr Hussain wielded that power.[71]The conclusion of the meeting was deeply unsatisfactory. IJ: So, what has happened as a result of this meeting? Are my hours going to change? Am I back to work? Am I being dismissed? WH: As a result of this meeting, it's a week... IJ: What does that mean? WH: Basically, it means that all the points that I’ve gone over. If you want, I can give you a copy. …. WH: Look, the point is, you’re unhappy with me, the way the venue is running, the contract, the hours, the staff. I’m giving you a warning. This might be a blessing in disguise. You might say, I’ve got all these issues, you’ve given me a warning, that’s fine, I’ll work till the end of the month. That’s it. IJ: So, are you saying you’ve given me this warning to leave? WH: I’m not giving you a warning to leave. I’m giving you a warning for the points. I’m giving you a week. I’ll look at the dates and rota, whether its Monday or this week, I don’t know. Then I’m going to see if anything changes in that week, just to see if you’ve taken anything on board…. ….. IJ: In regard to my grievances, are they going to be looked at? Because you’ve made these promises and I’ve not seen them. WH: The grievances are always all the same. IJ: Will my hours be increased or not? WH: I’m now going to make a decision on the hours, the backlog, and the work, on the marketing, and your role here. So, I’ll need a couple of days now to clarify my position about you at The Marigold. So, then there is no more questions after that. IJ: I’ll need all this in writing, Waj, today. WH: It won't be today. You know it won’t be today. Today was just the meeting. IJ: Ok, the other thing is you’ve mentioned all these points? Can I appeal the warning? WH: I don’t know what you want to do about the warning. I’m going to assess you on the next week. I’ll give you the rota and then see if any changes have been implemented. I’ve taken on board your grievances, I’ll set things in concrete so at least that way you’ll know.[72]I find the claimant was then left on suspended leave for a further week with no rota to come in and I have not been shown evidence of the respondent requesting the claimant to work. It is clear at the end of this meeting that Mr Hussain was obviously disgruntled that the claimant had not simply accepted what he had said and I find he was already reconsidering the sanction imposed, at the end of the meeting, which is why the claimant did not return to work.[73]The claimant was then off sick and during this time settlement discussions ensued. Which ultimately culminated in dismissal. It is noteworthy that the matters in the dismissal letter are then significantly expanded in Mr Hussain’s statement. The expanded matters relied upon, have had little focus in this litigation, and there seems to have been little attempt to evidence the concerns.[74]Although the dismissal letter references a breakdown in trust and confidence, I find that there was a wholescale failure to comply with their own policy and procedure documents. Even with the limited structure and resource, the process adopted was manifestly unfair.[75]The claimant lodged an appeal which was on my finding ignored. Even if proceedings were contemplated, there was still a duty for it to have been actioned and this represented a further breach of the policy. Application of law to the facts[76]Regarding the reasons for dismissal, the burden is on the respondent to show a potentially fair reason for the dismissal. I am satisfied that in the mind of the respondent there was a trust and confidence issue created by the workplace issues and in part the behaviour of the claimant in texting late at night and repeated calls, as well as withholding her labour, and a perceived personality clash. There was in short a potentially fair reason for dismissal (some other substantial reason).[77]However, In considering the overall fairness of the process there are substantial issues here. The respondent was unlawfully under paying the claimant’s wages. The claimant had the right to request this, but this grievance was used against her, as part of the factual matrix for her own dismissal.[78]In succumbing to third party pressure by other employees (as I have found in this case was a contributing factor) the respondent simply could not dismiss the claimant as Mr Babir Hussain suggests the case of Gorfin allowed the respondent to do.[79]An employer must do everything that it reasonably can to avoid or mitigate the injustice brought about by the stance of the third party, see Henderson v Connect South Tyneside Ltd 2010 IRLR 466, EAT. In a case of ‘patent injustice’, the employer may have to ‘pull out all the stops’. Failure to take reasonable steps to improve relationships will make the dismissal unfair as discussed in Turner v Vestric Ltd 1980 ICR 528, EAT.[80]In treating the claimant’s complaints about bullying with impunity and ignoring her grievances about underpayment of wages, the respondent failed to take even the most basic of steps, to restore the harmony to the workplace. The conflict in the workplace was clearly caused by a changing of roles, and a lack of clear demarcation. There seems to have been no step taken to resolve the risk of the employees ‘treading on each other’s toes’, taking disputes into their own hands, or setting a clearer framework as to what the claimant was supposed to do. The absence of leadership, failed to take any meaningful steps to mitigate the issues prior to dismissal.[81]The respondent as I have set out, have set their mind against the claimant. They have ignored her grievances, never properly dealing with them. There is no evidence of a proper or reasonable investigation into the issues raised. Mr Hussain has witnessed first hand, Lubna Suleman ‘having a go at the claimant’. He acknowledges that other workers have done so, and on a repeated basis. In order to conclude that the disharmony in the workplace was the fault of the claimant, he had a duty to investigate and take seriously the accusations of bullying. Instead he has jumped to conclusions and sought the path of least resistance, which was to isolate and dismiss the claimant.[82]There were issues with the claimant’s conduct, in her communications late at night. But the conditions at work had clearly made her anxious and exacerbated any underlying difficulties she suffered. The respondent dismissed the claimant’s upset and criticised her for it.[83]The process followed on the 21st of July 2022 failed to disclose proper allegations and on my finding there was no attempt to take reasonable steps to improve the relationships. This was the first the claimant new about the disciplinary action. The sanction applied was confusing and totally flawed. The respondent immediately departed from this and kept the claimant suspended clearly with the intention to dismiss her.[84]I have found that the management failure caused the febrile atmosphere in the workplace and failed to take steps to solve it. The failure to adhere to the claimants contract and the respondent inconsistent rota for the claimant, keeping her in a state of constant flux in terms of her position, contributed to her decision to withdraw her labour. Although I find she should not have done so.[85]I do not find that the claimant has repudiated her contract in withdrawing her labour. Even if she had, she affirmed this by offering to work the following week.[86]Even in the knowledge of the issues the respondent did not seek to dismiss the claimant on the 22nd of July 2022. Mr Hussain was only seeking a 1 week warning and did not consider a dismissal sanction.[87]Although some other substantial reason was a potentially fair reason for dismissal, I do not find that this was the genuine reason for dismissal. The dismissal letter details five allegations. Four of these arguably relate to conduct and capability reasons for a dismissal. They are as follows: a) Personality clash causing substantial issues within the business b) Constant disputes with management and colleagues c) Discourteous behaviour displayed towards clients and vendors d) Unwilling to cooperate and take onboard suggestions or advice regarding improvement to performance and work e) Harassing behaviour towards manager[88]I consider that these allegations also formed part of the dismissal decision and the respondent has not pleaded capability or conduct as the reason for dismissal, because it must be obvious to them that no proper process was followed. The decision to pursue SOSR at this hearing and in effect to only rely on the first allegation regarding workplace harmony, seeks to recover that position. However, it is clear conduct and capability issues were also relied upon.[89]The respondent has argued their case on the basis of attempting to restore the harmony of the workplace. However, the respondent has approached this and conducted themselves in such an inappropriate way as to render every stage of the process manifestly unfair. I therefore find that the claimant was unfairly dismissed.[90]Mr Hussain has in his evdinece offered an image of a kind and benevolent employer trying ineptly to do his best,, and not realising his errors in respect of the law. That may be the case, but the laws still applied to him and he had (and still has) a duty to his employees to apply those provisions. Polkey[91]I have considered the guidance from Polkey v AE Dayton Services Ltd [1987] UKHL 8, as to whether to adjust any award, based upon the possibility that, had a fair process been followed, that the claimant would have been dismissed in any event. This is a small organisation with no management structure and limited personnel and financial resource. The systemic failure in the process is to properly investigate the culture and issues at the workplace in a fair manner.[92]I have already found the number and times of the text communications sent by the claimant in isolation is not sufficient to justify dismissal. The claimant requesting her proper pay in terms of hours was justified. I consider on balance that the process was so flawed it would be impossible to ascribe a fair process if the dismissal procedure were applied properly. The failures of Mr Wajid Hussain are so central, and he is the only person in a management capacity.[93]I do not consider in those circumstances it would be possible to re-instigate a fair process within this organisation. I do not consider that there is sufficient evidence to distil that the claimant was responsible for the disharmony in the workplace, without properly considering if she was in fact a victim of bullying and what steps could be taken to mitigate this, and the general febrile atmosphere. I therefore make no reduction in this regard, and the respondent has not discharged the burden to show the claimant would have been dismissed in any event. Contributory conduct[94]I have considered whether a culpable conduct reduction to the basic or compensatory award, should be applied to the claimant for her withdrawal of labour. Whilst the authorities are unclear on this jurisdiction (in relation to dismissals for SOSR), it seems to me to be a matter of fact at my discretion based on the evidence of the case, as to whether to apply such a reduction for culpable or blameworthy conduct. I do not find that this should apply in this case. Whilst the claimant should not have in effect gone on strike as redress, I am satisfied that in her mind she felt her conditions were such that she had no alternative, to address her concerns. In any event the respondent did not consider dismissing for this reason on the 22nd of July 2022, or within the dismissal letter. I therefore find that I should not make any culpable conduct reduction. I will, however, address the withdrawal of labour in the unlawful deductions from pay claim. Unlawful deductions[95]The claimant’s contract was changed in October 2021 to 30 hours a week and she appears to have been paid at this level until January 2022.[96]I find that the deductions in the pay occurred over a period of time dating back to January 2022, amounting to a continued series of deductions. This overcomes any time issues associated with S123 of the 1996 Act. The respondent should have paid the claimant 30 hours a week at minimum wage. I will award the claimant the difference between the rate paid and the 30 hours. Capped at 120 hours per month. 30 hours a week was properly payable. This will be subject to tax and NI deductions. I will deduct 30 hours unauthorised absence for the withdrawal of labour on the 4th of July 2022, which should be treated unauthorised absence.[97]In terms of notice pay, the evidence is too poor to distinguish if the previous month of October (or November) contained any notice pay and I reject the assertion that it has been paid properly. I will therefore award the claimant her unpaid notice pay.[98]The claimant’s holiday entitlement is up to the date of dismissal (on 6th of November 2022) based on her hours, at the statutory rate, is 128.5 hours, for a holiday year commencing on the first of January 2022. It was argued by Mr Babir Hussain that the holiday year calculation should only run until the 4th of July 2024 when the claimant was suspended. I reject that argument and annual leave entitlement continues to accrue even whilst on suspension.[99]The respondent was unable to evidence in the documents or in oral evidence, what holiday the claimant had taken and they were evasive in this regard.[100]I conclude that the claimant has been paid on her pay slips for 5.8 hours of holiday in January 2022. I deduct this for the amount owed.[101]Thereafter I take the view the claimant was suspended and entitled to full pay. The contract is silent on this point and therefore I disregard the period of sick leave and make no reduction. I could have applied a reduction to the level of Statutory Sick Pay during the sick leave taken when she remained suspended. However, the sick leave policy does not appear to been applied to the claimant by the respondent, based on the evidence before me. Even if I am wrong about that I have struck out the sick pay paragraph as unfair and so there is no reason why full pay should not apply. It has not been pleaded anywhere that the SSP rate should apply.[102]I also find that there have been multiple breaches of the ACAS code on disciplinary and Grievance procedures and therefore it is open to me to consider an uplift to the compensatory award.
Remedy
[103]Having determined the matters set out above, I allowed some time for contemplation and discussion by Mr Babir Hussain and the respondent. Upon return Mr Babir Hussain acknowledged the determination I had made in respect of the unpaid hours and holiday. He did not challenge the award of a basic award for unfair dismissal. However, he argued that there should be no compensatory award applied. He argued that the claimant had in effect been unemployed in the 9 years prior to working for the respondent and they employed her out of the goodness of their heart. In effect this was an invitation to me to conclude that the claimant was unemployable by way of inference. Mr Hussain repeated many of the arguments that he had relied upon throughout the hearing, which I had already made findings of fact about, to the contrary.[104]In respect of any ACAS uplift, he argued that the respondent was a small organisation and although they had made mistakes, it would be unfair to apply any uplift.[105]In her submissions the claimant argued that she should receive a compensatory award equivalent to 12 months pay. She also argued that an uplift should be applied at the full 25%, in respect of breach of the ACAS code, as well as an award for loss of statutory rights. I have considered the evidence of mitigation which was not subject to any serious challenge by the respondent. The claimant remains unemployed. Conclusions – Remedy Unfair dismissal[106]I consider it appropriate to make a basic compensatory award to the claimant. The claimant had completed two years full service and her gross weekly wage was £285 (at 30 hours per week). I therefore award a basic compensatory award of £570.[107]In respect of the compensatory award, I reject the suggestion that there should be no award. The arguments put forward in this regard are flawed. I note that the claimant has had two interviews and that she felt unable to explain that she was litigating her dismissal, which has affected her performance in those interviews. I sympathise with this, but it is not in my finding something which is not capable of explanation, and is only a small factor in seeking employment.[108]I note that the claimant has been employed in a position paid at the minimum wage. I consider it possible therefore for the claimant to obtain further employment within a reasonable time, at a similar remuneration level, even if this is in an alternative sector. Something which the claimant has not yet fully explored. Paying due regard to the impact of the dismissal and allowing some time to secure alternative employment, I consider that the claimant should have been able to mitigate her losses and secure further employment within a 12 week period. I therefore award the claimant 12 weeks pay at 30 hours per week of her net pay. I award a further weeks net pay to compensate for the claimant’s loss of pension rights over the period. I calculate the claimant’s net weekly pay at £271.16. I therefore make a compensatory award of £3525.08 (13 x 271.16).[109]In addition to the same I consider it appropriate to make an award for loss of statutory rights. This award is designed to compensate a claimant for the loss of employment protections, resulting from an unfair dismissal and the time it will take in fresh employment to accrue such rights again. Whilst ordinarily such awards are limited to approximately £500, I note that awards are adjusted over time to reflect societal and inflationary changes. Given the claimant was employed at the lowest possible income level, and that the compensation is designed to cover the rights that are lost, I do not consider it inequitable to award the equivalent of 2 weeks pay (at minimum wage) namely £570. I make that award accordingly.[110]Having found that there have been breaches of the ACAS code, I note I can award an increase in the compensatory award, up to a maximum of 25%. 25% is not a starting point in the case of a breach and I must have regard to the circumstances of the case and what is just and equitable. Taking into account my findings above, I consider the breaches of the code by the respondent have been particularly egregious. The conduct of Mr Wajid Hussain, particularly at the meeting on the 22nd of July 2022 was appalling. There has been a wholescale departure from the claimant’s own policies and accordingly the code. No grievance was ever properly actioned and the dismissal process breached the code. I therefore consider it just and equitable to uplift the compensatory award by 25%, and I make a further award of £881.27 (3525.08 x 0.25). Notice[111]In respect of the claimants notice, in accordance with her contract, she was entitled to two weeks notice pay and I make an award for breach of contract in this regard of £570. Holiday[112]The claimant was entitled to 128.5 hours paid leave for the year to the 6th of November 2022. I will deduct the 5.8 hours already paid. This leaves a balance of 122.7 hours at £9.50 per hour, and I award the sum of £1,165.65. Unpaid wages[113]The claimant has had varying amounts of hours paid by the respondent per month. She was entitled to receive 30 hours per week, and I have used the figure of 120 hours per month to calculate her pay. I have considered each payslip individually. For the months of February and March 2022, the respondent has unlawfully deducted 63 hours at a rate of £9.21 per hour. I award £580.23.[114]For the Months of April to November 2022. The rate was £9.50 per hour and the respondent has unlawfully deducted 375 hours of the claimant’s pay. I deduct the 30 hours for which the claimant withdrew her labour for the month of July 2022. This leaves 345 hours unpaid. I therefore award the claimant the sum of £3277, for this period. The total unlawful deductions award being £3857.23. Given the claimant has a very small taxable income for the year 2022/23 it is likely she will only be required to pay a modest contribution for any tax and NI contributions. I therefore consider the sums should be paid gross and the claimant will be responsible for meeting the tax liabilities on the taxable portions of her awards.[115]That is my Judgment.