Mr T Ayres v A Slice of Life Cafe Ltd: 1400722/2024
JUDGMENT
[1]The judgment of the Tribunal is that the Respondent’s application for reconsideration of the unfair dismissal complaint is dismissed for the reasons below.[2]Judgment should in fact have been entered for the Claimant in respect of an additional £352.00 gross unauthorised deductions from wages. The Respondent shall deduct any tax and national insurance contributions and pay the net sum to the Claimant.REASONS
[1]The only application before me is the Respondent’s application for a reconsideration of the judgment dated 27 January 2025 which was sent to the parties on 5 February 2025 (“the Judgment”). The grounds are set out in the letter from the Respondent’s representative dated 21 February 2025.[2]Rule 68 of The Employment Tribunal Procedure Rules 2024 (“the Rules”) allow for an Employment Tribunal, either on its own initiative, or on the application of a party, to reconsider any judgment where it is in the interests of justice to do so. An application for reconsideration under Rule 69 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore made within the relevant time limit.[3]The grounds for reconsideration are only those set out in Rule 69, namely that it is necessary in the interests of justice to do so.[4]The grounds relied upon by the Respondent are: Unfair Dismissal a) The Employment Judge substituted the Respondent’s view of the events on 22 and 28 March 2024 which lead to the decision to dismiss with her own view; b) The Employment Judge erred in the finding that the Respondent had failed to discharge its burden of proving gross misconduct; c) An employer is best positioned to determined what constitutes gross misconduct: the Tribunal is limited to determining whether the employer acted reasonably in coming to the decision to dismiss; Unauthorised Deductions d) Other staff were only paid for the hours worked: there was no evidence to show that the Claimant was due pay for hours not worked; e) The Tribunal accepted that no pay was due for the two weeks in January when the Respondent’s café was closed, but no regard was given to other days where according to the calendar the Claimant was absent. Decision on Reconsideration Unfair Dismissal[5]Beginning with point a), the Employment Judge made findings of fact as to the nature and detail of the events that took place on 22 and 28 March 2024, as there were a number of factual disputes. In broad terms, the Employment Judge, for the reasons given in the Judgment, preferred the evidence of the Claimant over that of the Respondent. In relation to events of 28 March 2024, the Claimant’s account was corroborated and supported by the evidence of Miss Fay, who the Employment Judge found to be a credible and reliable witness. The Respondent has misunderstood this part of the decision-making process. The Respondent’s account was, in large part, found not to be reliable.[6]Specifically, with regard to 22 March 2024, the Respondent in evidence conceded that there may have been a misunderstanding, and on the evidence, the Employment Judge found this was the case. For the reasons given at paragraphs 23 and 24 of the Judgment, the Employment Judge did not accept the Respondent’s evidence as to the Claimant’s alleged aggression. The Employment Judge found, as a fact, that the Claimant did not “start shouting and fly off the handle”.[7]With regard to 28 March 2024, the Respondent’s evidence was inconsistent (paragraphs 28 and 29). The Employment Judge’s findings of fact are set out at paragraphs 33-35. It was found as a fact that the Claimant was not aggressive. Nor was there insubordination or a reasonable belief in that (paragraphs 56 and 58).[8]These factual findings, and in turn findings as to whether the Respondent’s asserted belief that the Claimant was guilty of misconduct was genuine, are not the Employment Judge substituting their view for that of the Respondent, but rather, a logical extension of the findings of fact.[9]It follows that, dealing with point b), that the Respondent, in failing to prove aggression and insubordination, failed to prove misconduct, or indeed gross misconduct as asserted. He failed to discharge his burden of proof.[10]As to point c), that an employer is best positioned to determine what amounts to misconduct, the Employment Judge does not dispute that employers are entitled to manage and management involves discretionary decisions – Iceland Frozen Foods v Jones [1983] ICR 17. Within the exercise of such discretion, employees are entitled to be treated rationally. Whilst it is correct that, a Respondent having established misconduct or gross misconduct, the Tribunal is limited to determining whether dismissal was within the range of reasonable responses, here, that part of the Tribunal’s decision-making process was not reached because the Respondent failed to prove misconduct. Unauthorised Deductions from wages[11]It was noted by the Employment Judge at paragraph 47, as referenced in point d) that other staff had different contractual arrangements whereby they were paid for the hours actually worked. That was, as set out in the judgment, irrelevant, as the Claimant had an entirely different contract by virtue of the Apprenticeship Agreement.[12]As to point e), the Employment Judge, taking into account the size and nature of the Respondent’s business, considered that whilst the Apprenticeship Agreement did not reference whether or not the Claimant was to be paid during periods when the business was closed, it would not be fair to the Respondent to interpret the contract as requiring the Claimant to be paid for weeks when the business was closed in its entirety.[13]However, on reconsideration, the Employment Judge acknowledges the logic of the Respondent’s submission. Either the Claimant was only entitled to be paid for the hours worked, or the Claimant had a contractual entitlement to be paid 32 hours/week, irrespective of whether the Respondent provided work, and whatever the reason for not providing it. Having found that the Claimant had a contractual entitlement to be paid for 32 hours/week, the Employment Judge, upon reconsideration, determines that the Claimant was entitled to be paid for 32 hours/week for the two weeks that the Respondent’s business was closed, and increases the remedy awarded accordingly.[14]The Respondent is to pay the Claimant an additional £352.00 gross (64 hours x £5.50).