Miss S Hunton v Uttoxeter Veterinary Practice Ltd: 1303343/2024
EMPLOYMENT TRIBUNALS
Case No 1303343/2024
Between
Miss S HuntonClaimantUttoxeter Veterinary Practice LtdRespondent
Before
Employment Judge WalkerDate 25 June 2025
JUDGMENT
[1]The claimant’s claim for unfair dismissal is not well founded and is dismissed.[2]The claimant’s claim for breach of contract is well founded and succeeds.[3]The respondent failed to give the claimant written itemised pay statements as required by section 8 Employment Rights Act 1996 for the pay periods February 2023 and November 2023.[4]The respondent’s counter claim for breach of contract is dismissed on withdrawal by the respondent.
REASONS
[1]The claimant, Miss Sophie Hunton, was employed by the respondent, the Uttoxeter Veterinary Practice Limited, as a registered veterinary nurse until her dismissal, which was effective on the 29th of February 2024.[2]The claimant claims that her dismissal was automatically unfair within Part X of the Employment Rights Act 1996 (‘ERA’) by reason of her asserting a statutory right.[3]The claimant further claims that the respondent breached her contract by failing to pay her certain wages (including holiday pay) on time.[4]The claimant further claims that the respondent failed in its duties pursuant to section 8 ERA to provide her with itemised pay statements.[5]The claimant further claims that the respondent failed in its duty to supply her with a written statement of particulars of employment pursuant to section 1 ERA.[6]The respondent contests the claimant’s claims. The respondent says that the claimant was dismissed for redundancy and that she does not have sufficient continuous service to bring a complaint of unfair dismissal.[7]The respondent denies breaching the claimant’s contract.[8]The respondent denies failing to provide the claimant with itemised pay statements.[9]The respondent denies failing to provide the claimant with a written statement of particulars of employment.[10]The respondent brought an employers’ contract claim against the claimant in relation to sums that the respondent claimed was owed to it in respect of overpayment of the claimant’s unpaid lunch breaks and also in respect of the claimant's failure to return her uniform following termination of her employment. However, on the morning of the first day of the hearing, the respondent confirmed that employer’s counterclaim was withdrawn in its entirety. That claim is therefore dismissed on withdrawal by the respondent.
The hearing
[11]I heard the claim on 29th and 30th May 2025.[12]The claimant represented herself and gave sworn evidence. She also tendered written evidence from Jenny James, an ex-colleague who worked with her at the respondent. Miss James did not attend the hearing and it was explained that the weight that could be attached to her evidence was therefore limited.[13]The respondent was represented by Mrs Michelle Peckham, solicitor. Sworn evidence was called on the respondent’s behalf from Dr Orianne West, the respondent’s Managing Director and Ms Sandra Wood, the respondent’s Practice Manager.[14]I also considered documents from an agreed bundle running to 290 pages, together with an eight-page supplementary bundle that contained a) transcripts of meetings between the claimant and the respondent and b) an additional document relating to matters in 2023 that were not relevant to the issues that the tribunal needed to decide.[15]Over the course of the afternoon the first day of the hearing, it became apparent that the respondents had not fully understood the claimant’s case insofar as the claim in respect of the respondent’s failure to provide itemised pay statements was concerned. Following the first day the hearing, the respondent prepared an additional bundle of documents summarising the respondent’s position on each of the pay slips sent to the claimant. The claimant did not object to the introduction of this additional information and that information was considered by the tribunal. Issues for the Tribunal to decide[16]I had a discussion with the parties regarding the issues for me to decide in this hearing. Those issues were as set out in the record of the case management hearing that took place on the 7th of March before Employment Judge Taylor. Save in relation to the respondent’s contract claim, those issues remained unchanged.
Findings of fact
[17]My relevant findings of facts are as follows.[18]The claimant was employed by the respondent as a veterinary nurse from the 30th of May 2022 until the expiry of her period of notice on 29th of February 2024.[19]The claimant’s evidence was that she did not receive a contract at the start of her employment. The claimant’s evidence was that after a year of employment, she asked Dr West and Ms Wood for a copy of her contract as she was concerned about ongoing issues with pay slips and wages. She stated that she did not receive the contract at that time either.[20]There was an unsigned contract of employment in the bundle that complies with the requirements of section 1 ERA, but the claimant’s evidence was that she had not seen this document until it was sent to her on the 1st of March 2024, after her employment had come to an end and as part of the early conciliation process that preceded the presentation of the claimant’s ET1.[21]Ms Wood’s evidence as set out in her witness statement was that a copy of the contract had been left at the respondent’s premises for the claimant to sign at the outset of her employment. In response to a question from the tribunal, Ms Wood confirmed that she believed that she had produced the draft contract, but did not know who gave it to the claimant. She stated that it could have been her or it could have been Dr West. She did not know for sure when the contract was given to the claimant.[22]Dr West was also unsure as to how the contract had been given to the claimant. In her witness statement she stated that Ms Wood had given a copy of the contract to the claimant to sign, but in response to a question from the tribunal she stated she believed that Ms Wood had prepared the contract but sent it to Dr West for Dr West to check from home whilst she was on call. Dr Wood stated that she then placed the contract in an envelope, although she did not recall who then gave it to the claimant.[23]Mrs Peckham submitted that the fact that the respondent had paid the claimant one months’ notice rather than statutory one week to which the claimant would otherwise have been entitled had her contract not contained more generous notice provisions supported the respondent's contention that the contract had been issued to the claimant. She pointed out that those notice provisions were set out in the contract, as were the garden leave provisions that the respondents availed themselves of when the claimant’s employment was terminated.[24]Ms Wood confirmed in response to a question from the tribunal that the claimant’s contract was in the standard form as existed at the time the claimant commenced work with the respondent. Both Ms Wood and Dr West stated that they were sure that all other employees had been issued with contracts.[25]I found the claimant’s evidence on the issue of her contract to be credible, clear and consistent. By contrast, the evidence of the respondent’s witnesses was equivocal as to who had issued the claimant with her contract and when. I do not find that the application to the claimant of what appeared to be the respondent’s standard provisions in relation to notice pay and garden leave supports the respondent’s contention that the claimant must have received a copy of her contract of employment.[26]Accordingly, I find that the claimant did not receive her contract of employment until March 2024.[27]The claimant was paid monthly. Pay information would be sent by the respondent to their accountants a few working days before month end so that the accountants could run payroll. All staff (including the claimant) could then be paid by payday, which was no later than the third working day of the month following the month in which work was carried out.[28]As at the point pay information was submitted to the accountants to run payroll, it was necessary for the respondents to estimate likely working hours for the period of time between payroll information being submitted and the end of the month. I find that these estimates could often be accurate, drawn as they were from the respondent’s rotas. However, it was common ground that employees (including the claimant) would sometimes work unexpected overtime in those final days of the month. Such overtime would not be caught on the pay run for that month as it would not have been included in the figures sent to the respondent’s accountants. An adjustment would be made to the following month’s pay in order to capture overtime worked at the end of the preceding month.[29]With the exception of certain sums owing to the claimant at the end of her employment, these pay arrangements in relation to overtime were not key to the claimant’s complaints. Her complaint was that she did not receive itemised pay statements on time all at all and that she always had to chase the respondents for her pay slips. She did not seek to argue that the information on her pay slips was inaccurate.[30]There were numerous messages in the bundle which the claimant had sent to the respondents requesting pay slips. I find that the claimant had repeatedly requested her pay slips from Dr West over the course of her employment.[31]The claimant accepted in cross examination that she would receive e-mails notifying her of the amount she would be paid in any given month, but her evidence was that, over the course of her employment, she only received five pay slips on time. These five pay slips covered the pay periods November 2022, December 2022, June 2023, December 2023 and January 2024.[32]The claimant's evidence was that she received two further pay slips late in respect of the pay periods July 2022 and August 2022. She stated that she received both of these pay slips via e-mail on the 5th of September 2022.[33]There were pay slips in the bundle relating to each pay period of the claimant’s employment, but with the exception of the seven pay slips detailed above, the claimant maintained in cross examination that she had not received any other pay slips.[34]During cross examination the claimant was taken by Mrs Peckham to a number of message exchanges with Dr West, the content of which suggested that she had received pay slips for the pay periods February 2023, March 2023 and April 2023 by the due dates. The claimant conceded in cross examination that she had indeed received those pay slips, although she stated that her pay slip for the pay period February 2023 was received late, on the 4th March 2023, as evidenced by the message chain with Dr West.[35]The claimant also conceded that she believed she had received her pay slip for the pay period February 2024.[36]The respondent’s evidence was that, until October 2022, pay slips were provided as paper documents. Dr West’s evidence in this regard was detailed and clear. She stated that she would stand next to the printer when the pay slips came through as they were confidential documents and she did not want anyone else to see them. Once the pay slips had been printed off, she would then cut them up and put them into individual envelopes. Pursuant to the respondent’s customary procedure, the pay slips for reception staff were left on reception whereas those for nursing staff were left in the prep room.[37]I found Dr West's evidence on this point to be persuasive and find that Dr West left paper pay slips for the pay periods June 2022, July 2022, August 2022 and September 2022 in the prep room for collection by the claimant.[38]The claimant’s pay slips for the pay periods July 2022 and August 2022 were also e-mailed to the claimant on the 5th of September 2022.[39]From October 2022, the respondent adopted a new system and began to send pay slips by e-mail. The claimant’s pay slips were all e-mailed to same e-mail address, but the claimant stated she did not always receive them. The claimant accepted in response to a question from the tribunal that the e-mail address used by the respondent was correct.[40]The claimant was asked in cross examination if it was her case that the e-mails in the bundle that she stated she had not received had been falsified. The claimant confirmed that she made no such allegation, but she nevertheless maintained that she had never received the pay slips that were e-mailed to her in respect of the pay periods October 2022, January 2023, May 2023, July 2023, August 2023, September 2023, October 2023 and November 2023.[41]I find that the pay slips that the claimant accepted receiving by e-mail were sent to the same e-mail address as the ones she did not accept receiving. There was no evidence before the tribunal to suggest that delivery of the e-mails had failed and the claimant did not seek to argue that the copy e-mails in the bundle had been falsified. Where evidence (in the form of message exchanges between the claimant and Dr West) were put to the claimant in cross examination suggesting that the claimant had indeed received some of the pay slips that she initially denied receiving, the claimant conceded that she had received those pay slips. Of her own volition, the claimant also stated that she had received her payslip for the period February 2024.[42]I therefore accept that the respondent had sent pay slips by e-mail to the claimant via a valid e-mail address in respect of the pay periods October 2022, January 2023, May 2023, July 2023, August 2023, September 2023, October 2023 and November 2023.[43]Although the respondents were required to pay the claimant by the third working day of the month following the month in which work was done, in reality the claimant would often be paid earlier. I find that this was a consequence of the respondent’s payroll arrangements. The respondent’s bank would be given direction to pay wages a few days before the due date for payment and I find that this was done deliberately so as to ensure that if there were any delays in the banking system, staff would still receive their pay on time. This contingency that was built in to the pay system was not always required, meaning that pay would sometimes be received early.[44]There was evidence in the bundle in the form of extracts from the claimant’s bank statements of two occasions when the claimant received her pay earlier than the due date for payment. Pay that was due to be paid in respect of June 2022 by the 5th of July 2023 was actually paid on the 4th of July 2023. The claimant’s pay slip for the same period was received on the 3rd July 2023.[45]Pay that was due to be paid for the pay period November 2023 by the 5th of December 2023 was paid on the 4th of December 2023. However, the claimant received her pay slip for the pay period November 2023 on the 5th of December, which was one day after the claimant received her pay for the period in question.[46]It was conceded in the additional bundle prepared by the respondent after the first day of the hearing that the claimant received her pay slip for the period February 2023 on the 4th of March 2023. This was one day after the third working day of March 2023.[47]There was no evidence before me as to when pay was received by the claimant in respect of any other pay period.[48]On or about the 28th of December 2023, Dr West received a letter from the respondent’s then accountants. This letter was concerned with the preparation of the respondent’s statutory accounts and corporation tax return. In that letter, the respondent’s accountant notified the respondent that the respondent’s corporation tax liability was £96,744.14, of which a balance of £77,245.14 (plus interest) was now owing to HMRC. The letter went on to state that some of that tax might be refundable in the future.[49]Dr West contacted the accountant that same day by e-mail to query why the liability to corporation tax was so high. That e-mail correspondence was in the bundle and I find that Dr West was both surprised and concerned about the significant tax liability that felt to be paid over and above the respondent’s liability to pay VAT. I find that Dr West was unaware of why the tax liability was as high as it was and that her concerns about this unexpected demand persuaded her to change accountants on or about the 8th of January 2024.[50]The respondent’s new accountants completed the accounts for the respondent’s tax year ending 30th of January 2024. A set of those accounts in the form required to be submitted to Companies House was in the bundle. The balance sheet forming a part of that document showed a significant reduction in cash as at the 30th of January 2024, with cash being roughly half of what it had been on the same date the previous year. Although a balance sheet simply provides a snapshot of the company's finances on the day that it relates to, I find that Dr West was concerned about the respondent’s financial position from late December 2023.[51]On the 24th of January 2024, Dr West e-mailed the respondent’s new accountant to express her anxiety about the respondent’s tax liabilities and her concerns that the staff would not be paid. I find that these concerns were genuine.[52]Ms Wood’s evidence corroborated Dr West’s evidence. Ms Wood stated that she was aware that Dr West was looking at reducing staff overhead costs and increasing revenue from December 2023. She stated that increasing revenue was not considered to be easy in the period after Christmas, as clients would generally avoid costly elective procedures at that time. Such procedures as were carried out tended to be covered by policies of insurance and insurance claims would typically not be paid immediately after completion of treatment.[53]Ms Wood’s evidence was that, in addition to considering redundancies, the respondent also reduced ordering and stock levels. Ms Wood stated that the respondent had been advised by its accountants to cut back on staff overhead costs. As a result, the respondent had decided that the respondent could function with two registered veterinary nurses rather than the three that it currently employed.[54]There was no documentary evidence in the bundle to support Ms Wood’s evidence on these matters, but I found Ms Wood’s oral evidence to be credible and accordingly, I find that the respondent was actively looking at cost cutting measures alongside revenue increasing measures from December 2023. I find that those measures included consideration of the making of redundancies in the veterinary nurse team.[55]On the 26th of January 2024, the claimant met with Ms Wood. The claimant covertly recorded that conversation and the copy of the transcript was in the supplementary bundle. The claimant's evidence was that she felt that she needed to meet with Ms Wood because she had been notified by Ms Wood that all staff were potentially going to be paid less for the month of January 2024 due to the change in accountants.[56]The claimant sought advice from ACAS before meeting with Ms Wood. She explained to Ms Wood during the meeting on 26th January that the respondent needed to pay wages owed for January. Ms Wood queried whether the claimant had notified ACAS that there had been change of accountants and the claimant confirmed that she had so notified ACAS. Ms Wood told the claimant that everyone would be paid, but that January wages would need to be estimated and that any discrepancies would be resolved in the following month’s pay.[57]Ms Wood’s evidence was that there was never any intention on the part of the respondent not to pay the claimant and her colleagues for January. That evidence was not challenged and I find that it was the respondent’s intention to estimate January wages and resolve any discrepancies in the following pay period. However, I find that there was some disconnect between the claimant and Ms Wood’s respective understandings during that conversation and that the claimant was genuinely concerned that she was not going to be paid at all for January and would not be able to meet her outgoings. The claimant also expressed her concerns that, even if wages were estimated, her wages would be short. The conversation ended with the claimant asking Ms Wood to contact Dr West to clarify how short her wages might be.[58]Dr West was not in the practice on that day. I find that Ms Wood told the claimant that she would try and speak to Dr West, although she did not promise to do so. Both Ms Wood and Dr West gave evidence that Ms Wood did not contact Dr West about this matter on that day, the 26th January 2024. Ms Wood stated in cross examination that she was extremely busy that day and had a hospital appointment in the afternoon. She did, though, concede in cross examination that she and Dr West would message each other quite often.[59]The claimant conceded in cross examination that she had no evidence to confirm that Miss Wood did indeed contact Dr West that day or that Dr West otherwise knew about the content of the conversation between the claimant and Miss Wood on the 26th of January on that day.[60]The claimant's evidence was that, 35 minutes or so after the conversation with Ms Wood on the 26th January, she was checking e-mails on the work computer in the prep room when she noticed an e-mail from a veterinary employment agency that appeared to be intended for Dr West. She took a screen grab of that message, which screen grab was in the bundle. That e-mail appeared to be a response to a request by Dr West for assistance with the appointment of a registered veterinary nurse. The agent was asking in the e-mail whether the position was a locum position or a permanent one.[61]Just under an hour later, the claimant’s evidence was that she received a call on the work phone. The caller asked the claimant if she was trying to download a template dismissal letter in the claimant’s name. The claimant took a photograph of the phone with the caller number shown in the calls list. That photograph was also in the bundle.[62]The claimant carried out an internet search for the telephone number following this call and concluded that the number was that of Croner HR, a company that provides support services to small businesses. The claimant’s evidence was that she had been contacted by accident and the call was intended for Dr West.[63]The respondent’s evidence was that the respondent had never instructed Croner HR as they had used different advisors for a number of years. The advisors retained by the respondent do not contact individual members of staff and only contact named individuals on their records, being Mrs West and Ms Wood.[64]During cross examination, Dr West was unable to confirm whether or not the photograph of the telephone that was in the bundle was the respondent’s work telephone. She suggested that the call taken by the claimant may have been a sales call. The claimant put it to Dr West that the person she spoke to from Croner HR was selling nothing and that they had the claimant’s name and Dr West's e-mail address. Dr West was unable to explain why that might be the case or why the caller asked for the claimant. Dr West maintained that she had not contacted Croner HR to ask for a dismissal letter template.[65]In respect of the e-mail from the recruitment agency, Dr West stated in cross examination that she was not seeking to appoint a new veterinary nurse on the 26th of January. She stated that the respondent would receive daily speculative e-mails asking if the respondent needed locum cover. She explained that, in January, staff tend to put in holiday requests and there may be a greater need for locum cover at that time of year.[66]In contrast to her evidence on the procedure for dealing with paper pay slips in the period up to October 2022, I found Dr West's evidence in relation to both the e-mail and the telephone call to be vague and unclear.[67]I find that the e-mail seen by the claimant on the 26th January was not a generic or speculative e-mail. Although it was short, the recruitment consultant used Dr West's first name and specifically asked whether the available post was a locum or a permanent position. I find that this e-mail was sent to Dr West in response to a specific request by Dr West for assistance in finding a new registered veterinary nurse to work for the respondent. I further find that the e-mail was sent in response to something that the recruitment consultant had received relatively recently, given that the consultant was seeking to clarify whether the available post was a locum post or a permanent one. This suggests that the job search was still at an early stage.[68]Insofar as the call from Croner HR is concerned, I found the claimant’s evidence to be credible and am satisfied that the photograph of the phone in the bundle is a genuine photograph of the respondent’s work phone. I also find that the claimant did take a call from a third-party advice agency who were dealing with a specific query regarding a letter of dismissal for the claimant.[69]I find that Dr West was made aware of the contents of the meeting between the claimant and Ms Wood on the 26th of January shortly after that meeting had taken place. I find that Dr West decided to take immediate steps to seek to replace the claimant by approaching an agency to seek locum cover for her post and by contacting a third-party advice agency to obtain a template letter that could be used to dismiss the claimant.[70]I therefore find that the decision to dismiss the claimant was taken by Dr West on the 26th of January, very shortly after the meeting at which the claimant had expressed her concerns about January pay to Ms Wood.[71]There was then a further meeting between the claimant and Ms Wood on the 1st of February 2024. This was the claimant's next working day after the 26th January. The claimant covertly recorded this meeting and a copy of the transcript was in the supplementary bundle. The respondent did not object to the inclusion of this recording.[72]Although Dr West was in attendance at the meeting, Ms Wood did all of the talking for the respondent. The claimant was notified that the respondent was restructuring the business and that there would no longer be a position for her. The claimant was notified that she would be given four weeks’ notice. The claimant queried the decision and was told by Ms Wood that the respondent could not support all of the nurses.[73]The claimant’s position as expressed during that meeting was that there was a direct link between the respondent’s decision to dismiss her and the conversation about pay that she had had with Ms Wood on the 26th of January. She did not accept that restructuring was the real cause for her dismissal on the 1st of February 2024. Ms Wood maintained during the meeting that the decision was based on financial considerations as the current arrangement was not working for the respondent financially.[74]Towards the end of that meeting, Ms Wood handed the claimant the letter of dismissal, a copy of which was in the bundle.[75]The respondent’s evidence was that the claimant's dismissal was prompted by the financial concerns that had been identified from late December 2023. The respondent decided to adopt a ‘last in first out’ methodology for selecting the veterinary nurse who would be made redundant. Dr West’s evidence was that, at that point, there were three registered veterinary nurses, including the claimant. The claimant had less service than her two colleagues, so was the employee at risk.[76]The claimant's evidence was that there was also a trainee registered veterinary nurse who had started work after her. Dr West stated in cross examination that the trainee was not a fully qualified or registered veterinary nurse. Her hourly wage was a third or a quarter of the rate paid to registered veterinary nurses and was subsided by the government. As such she had not been included in the pool of selection.[77]The claimant's evidence before the tribunal was that the events of the 26th of January were cumulative. Her evidence was that the decision to terminate her employment was made in part because of the events of that day but also in part because of previous complaints that the claimant had made about not receiving pay slips or a contract of employment. The claimant's oral evidence before the tribunal was that the events of the 26th of January were effectively the last straw insofar as the respondent was concerned.[78]Mrs Peckham reminded me that this was not how the claimant had pleaded her case prior to the hearing. It had been clarified at earlier case management hearings that the only event that the claimant relied upon in relation to her unfair dismissal claim was the conversation relating to her pay for January 2024. The suggestion that her dismissal was also motivated by the previous issues regarding pay slips and her contract of employment was not an issue that had previously been put before the tribunal.[79]Mrs Peckham further reminded me that the claimant had made no application to amend her claim and so I was only able to deal with the claim as pleaded.[80]This position is correct, but in any event, I note that in her witness statement, the claimant expressly states at paragraph 7 that her dismissal “was purely based on asking for my full wages and finding out more information regarding this matter”. I find that this was an accurate reflection of the claimant’s view as at the time she was dismissed.[81]Although I have found that the respondent was considering redundancies as part of its overall raft of cost cutting measures, I do not find this was the sole or the principal cause of the respondent’s decision to dismiss the claimant. I find that the claimant's dismissal was principally motivated by the claimant’s concerns about her January pay and the steps she had taken to seek advice about that matter from ACAS, which concerns had been the subject matter of the conversation she had had with Ms Wood on the 26th of January. The decision to dismiss the claimant had been taken by Dr West very shortly after that conversation.[82]Although the claimant was not notified about her dismissal until the 1st of February, I find that Dr West made the decision to dismiss the claimant on the 26th of January and that the respondents were seeking to use redundancy as a justification to cover the real reason for dismissing the claimant. I find that the respondent perceived they still had a need for someone to cover the claimant’s position and that this was the motivation behind Dr West contacting an employment agency on the 26th January 2024. I therefore find that the respondent did not consider that the claimant’s position was redundant as at the 26th January 2024.[83]I therefore find that the real reason that the claimant was dismissed was because she had raised concerns about her pay on the 26th of January.[84]Following her dismissal, the claimant received her final payment for her last month of employment. The claimant believed that her wages had not been correctly calculated by the respondent in that she had not been paid for a fourhour shift on the 17th February 2024 or for two days’ holiday pay accrued over February 2024. The claimant intimated claims in respect of these amounts in her ET1 application.[85]Pursuant to the claimant’s contract of employment, the claimant was entitled to be paid for any accrued holiday pay outstanding at the point of termination or her employment in her final pay.[86]Pursuant to the claimant’s contract of employment, the claimant was entitled to be paid her wages on a monthly basis, with payment due within three working days of the last day of the month.[87]In September 2024, the respondents made a payment to the claimant in respect of the underpaid amounts claimed by the claimant. The claimant’s related wage/holiday pay claims were subsequently dismissed on withdrawal by the claimant at the case management hearing that took place in March 2025. However, the claimant’s claim for breach of contract arising from late payment of her entitlements was not withdrawn and remained before the tribunal.[88]There was no suggestion that the payments made by the respondent to the claimant in September 2024 in respect of the amounts claimed by the claimant for unpaid pay and holiday pay in the pay period February 2024 were made on an ex-gratia basis or otherwise without admission of liability. To the contrary, liability for the claims made by the claimant appears to be conceded in paragraph 14 of the respondent’s amended grounds of resistance.[89]Accordingly, I find that the sums paid by the respondent were indeed properly owing to the claimant and should have been paid earlier in accordance with the terms of the claimant’s contract of employment. Relevant law and conclusions – unfair dismissal[90]Section 94 of the Employment Rights Act 1996 (‘ERA’) gives employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to an employment tribunal under section 111 ERA.[91]There is, however, a requirement for continuous service before an employee may bring a claim for unfair dismissal. Section 108 (1) ERA states that Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.[92]On the face of it, this precludes the claimant from bringing a claim for unfair dismissal as she had less than two years’ continuous service with the respondent as at the effective date of termination of her employment.[93]However, pursuant to section 108 (3) ERA, certain types of unfair dismissal claim are excluded from the ambit of section 108 (1) ERA. Specifically, by operation of section 108 (3) (g) ERA, section 108 (1) ERA is excluded in relation to claims brought pursuant to section 104 ERA.[94]Pursuant to section 104 ERA, an employee who is dismissed shall be regarded as being unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or(b) alleged that the employer had infringed a right of his which is a relevant statutory right.[95]The relevant statutory rights are set out at section 104 (4) ERA and include any right conferred by the ERA for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal.[96]The right not to suffer unlawful deductions from wages is a right conferred by the ERA for which the remedy for infringement is by way of a complaint to an employment tribunal.[97]I have found the reason for the claimant's dismissal on the 1st of February 2024 was because the claimant had raised concerns about potentially not receiving her correct pay for the month of January 2024. The claimant’s claim for unfair dismissal therefore potentially falls within section 104 (b) ERA.[98]In her closing submissions, Mrs Peckham drew my attention to the case of Spaceman v ISS Mediclean (UKEAT/0142/18). That case is authority for the proposition that the use of the past tense in section 104 (4) (b) ERA (“alleged that the employer had infringed a right …”) means that the protection granted by the section does not extend to an allegation that the employer may infringe a right in the future.[99]Further support for the proposition that the protection granted by section 104 (4) (b) ERA only applies to prior infringements of rights rather than future ones derives from the Court of Appeal case of Mennell v Newell & Wright (Transport Contractors) Ltd [1997] IRLR 519.[100]I must therefore consider whether the statutory right relied upon by the claimant (the right not to suffer an unlawful deduction of wages in respect of her pay for the pay period January 2024) had been infringed as at the point the respondent decided to dismiss the claimant or whether there was simply a possibility that the right might be infringed at some future point.[101]I have found that the decision to dismiss the claimant was taken by Dr West on the 26th of January 2024 and was taken because the claimant had raised concerns about a potential shortfall in her pay for January 2024 during her meeting with Ms Wood on the 26th of January 2024. The dismissal decision was conveyed to the claimant during the meeting on the 1st of February 2024.[102]As at the date the decision to dismiss was taken, the respondent had not yet breached the claimant's right not to suffer unlawful deductions from her pay in respect of the pay period January 2024. This is because the respondent was not, by that stage, liable to make payment to the claimant in respect of her January pay and had not yet made that payment. Payment for January 2024 was not due to be made until the third working day of February, being Monday the 5th of February 2024.[103]As such, the reason that the respondent dismissed the claimant related to something that was, at the point the decision was made, in the future rather than in the past.[104]Accordingly, the claimant was not dismissed for reason falling within section 104 ERA.[105]The claimant has advanced no other reason for her dismissal that would fall within section 108 (3) ERA and exclude the requirement for her to show two years’ continuous service as required by section 108 (1) ERA. As such, her claim for unfair dismissal fails and is dismissed. Relevant law and conclusions – breach of contract[106]The claimant brings a breach of contract claim in respect of the late payment of part of her wages due in February 2024. That claim remains before the tribunal.[107]The respondent made a correcting payment to the claimant in September 2024 in respect of the shortfall in accrued pay and holiday pay claimed by the claimant.[108]Although the respondent subsequently paid the claimant the disputed wages and holiday pay in September 2024, the respondent has not sought to argue that the late payment of these entitlements in and of themselves did not represent a breach of contract.[109]As the claimant did not receive payment of her contractual entitlements by the due dates, I find that the claimant’s contract was breached by the respondent. Her claim for breach of contract therefore succeeds.[110]The claimant is therefore entitled to recover any losses that she has sustained as a result of this breach of contract on the usual contractual principle. Relevant law and conclusions – failure to provide itemised pay statements[111]Section 8 (1) ERA states: A worker has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.[112]Complaint is made by reference to an employment tribunal under section 11 ERA.[113]Pursuant to section 12 (3) (a) ERA, where on a reference under section 11 ERA an employment tribunal finds that an employer has failed to give a worker any pay statement in accordance with section 8 the tribunal shall make a declaration to that effect.[114]The claimant’s claims in relation to itemised pay statements relate solely to late or non-receipt of pay statements.[115]Until October 2022, the respondents left the claimant’s pay slips in the prep room. The pay slips were not physically handed to the claimant, but in leaving them in the prep room (a room used by the veterinary nurses) I am satisfied that itemised pay statements for that period were indeed given to the claimant as required by Section 8 (1) ERA.[116]From October 2022, pay slips were sent by e-mail. The sending of those e-mails satisfies the respondent’s obligation to give the claimant itemised pay statements as required by Section 8 (1) ERA.[117]However, I have found that on two occasions the claimant received her itemised pay statement after the date on which payment of wages or salary was made to her. Those occasions related to the pay periods February 2023 and November 2023.[118]The claimant’s claim therefore succeeds in relation to the itemised pay statements for those two pay periods and she is entitled to a declaration to that effect. Relevant law and conclusions – failure to provide written statement of particulars of employment[119]Section 1 (1) ERA provides that where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment.[120]Section 1 (2) (b) ERA provides that the statement must be given not later than the beginning of the employment, save that the particulars required to be given by operation of sub-sections 1 (4) (d) (iii), (j) and (l) ERA may be given in instalments and must be given not later than two months after the beginning of employment, even where the employment ends before that date.[121]Complaint is made by reference to an employment tribunal under section 11 ERA.[122]The claimant’s claim in relation to the failure to provide her with a written statement of particulars of employment relates solely the late receipt of that statement.[123]I have found that the claimant did not receive her contract of employment until the 1st of March 2024. That contract contained the information the respondent is obliged to provide pursuant to section 1 ERA, but as that document was not received until the 1st of March 2024 and as the claimant commenced work with the respondent on the 30th of May 2022, I find that the respondent was in breach of its obligation to provide the claimant with a written statement of particulars of employment as required by section 1 ERA.[124]Section 38 of the Employment Act 2002 (‘EA’) states that If in the case of proceedings to which this section applies—(a) the employment tribunal makes an award to the worker in respect of the claim to which the proceedings relate, and(b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.[125]The minimum amount is an amount equivalent to two weeks’ pay and the higher amount is amount equivalent to four weeks’ pay.[126]By operation of schedule 5 EA, breach of contract claims are proceedings of the type that potentially attract the making of an award pursuant to section 38 EA.[127]An award may only be made if the employer is in breach of its duty pursuant to section 1 (1) ERA as at the point the proceedings are begun.[128]Employment tribunal proceedings begin with the presentation of the claim form.[129]The claimant’s ET1 claim form was presented to the employment tribunal on the 20th of March 2024, some 19 days after the claimant accepted receiving her contract of employment.[130]Notwithstanding that the employer breached its obligations to provide the claimant with a written statement of employment particulars within the statutory timelines, the respondent was not in continuing breach of that obligation as at the 20th of March 2024.[131]Accordingly, the tribunal has no jurisdiction to make a financial award in the claimant’s favour pursuant to section 38 EA.
Remedy
[132]The claim will now be listed for a remedy hearing in respect of the claim of breach of contract.