Miss S Martin v Marldon Service Station Ltd (Cox of Torbay): 1404184/2023

EMPLOYMENT TRIBUNALS

Case No 1404184/2023

Between

Miss S MartinClaimant

Marldon Service Station Ltd (Cox of Torbay)Respondent

Before

Employment Judge Mr J S Burns

In person for claimant

Date 6 May 2025

JUDGMENT

[1]The claims for unfair dismissal and notice pay succeed

[2]The claim for holiday pay fails and is dismissed

[3]The Respondent must pay the Claimant compensation of £9475 by 19/5/25

REASONS

[1]This was a claim for unfair dismissal, notice pay and holiday pay, presented on 24/7/23. The conventional issues arising from this type of claim are summarized in the Schedule to a Case Management Summary signed on 8/10/2024.

[2]I heard evidence from the Respondent’s witness Mrs Jane Holloway (forecourt manager) and then from the Claimant. The documents were in a bundle of 222 pages and a supplementary bundle of 19 pages. Findings of fact.

[3]The Claimant (C) started work for the Respondent (R) on 3/7/2006 initially as a cleaner. Latterly she worked as a forecourt assistant and cashier. Before she went on long-term sick-leave she was earning the minimum wage working 24 hours per week. Had she been working those hours in May 2023 she would have earned £250 gross per week. C was continuously absent on sick leave from March 2020 onwards. She sent in sick notes. She did not take holidays and received no pay or holiday pay. Mrs Holloway became C’s line manager but C did not find this out until 2023. Ms Holloway sent C messages from time to time. One such message was on 30/9/22 on the subject of some personal possessions which had been left in the workplace. Other messages in early 2023 were about the Claimant’s (nil) pay slips. On 6/3/23 C sent in another sick note covering the period to 11/7/23, by which date C would have been absent for over three years. After some difficulties and delays trying to set up the meeting, Ms Holloway attended C’s home on 25/5/23 to discuss the situation. This was heralded as a “friendly chat”. Ms Holloway asked in C had any preference so R could arrange for C to return to a different role, whether she could work reduced hours or weekends only, or any other flexible hours to meet her needs. C said she was incapable of returning to work. Ms Holloway then broached the subject of termination of C’s employment, suggesting that C might wish to resign and that it would be better if C submitted her resignation then and there, as that was what R wanted. C who was feeling ill, declined to do so. Ms Holloway then said that R would be looking at terminating her employment, and would invite her to a meeting to discuss this. C said she would be unable to attend because it would make her anxious. C said that as a second thought she could be accompanied by a lawyer friend. On 26/5/23 the next day Ms Holloway, after discussion with R’s directors, decided that holding a further meeting with C to discuss the possible termination of her employment on capability grounds would be futile and put pressure on C. After an unsuccessful attempt to phone C to tell her, 9 minutes later Ms Holloway sent C a text message dismissing her with immediate effect on 26/5/23. C was not offered any appeal. She was paid in lieu of untaken holidays for the period going back to the beginning of the holiday year starting 6/4/22 but not earlier than that. She was not paid any notice pay. She had long since exhausted her statutory sick pay. The Claimant subsequently submitted a sick note signing her of sick to November 23 and she has remained ill ever since and unable to work, in receipt of Universal Credit. Notice pay.

[4]If an employee’s contractual notice period is less than or equal to their statutory minimum notice period, then they are entitled to receive full pay in respect of their notice period, regardless of whether they are receiving a reduced rate of pay or they have exhausted their entitlement to sickness or maternity pay even if they are on zero income. In the instant case the Claimant’s contract gave her an entitlement to statutory notice pay only, which was 12 weeks as she had been employed for at least 12 years. She was not paid any notice pay and is therefore entitled to £250 x 12 = £3000. This claim was in fact conceded in final submissions. Holiday pay

[5]If a worker is on long-term sick leave, they can carry over a maximum of 4 weeks' holiday entitlement. They must use it within 18 months starting from the end of the leave year in which they accrued it. In the instant case the Respondent paid the Claimant 4 weeks holiday pay for the previous holiday year (which was rolled forward) and in addition holiday pay for the holidays accrued in the holiday year of termination. The Claimant is not entitled to any further holiday pay. Unfair dismissal.

[6]Where a potentially fair reason for dismissal is established by the employer under section Section 98(1) and (2) of the Employment Rights Act 1996, then section 98(4) must be considered which provides as follows: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends upon 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

(b) shall be determined in accordance with equity and the substantial merits of the case.’

[7]The ACAS Code on Disciplinary and Grievance Procedures 2015 does not apply to longterm illness dismissals. (Homes v QinetiQ UKEAT 0206 15 BA).

[8]However this does not mean that employers can dismiss an employee due to sickness without first going through a fair procedure. What that procedure looks like will vary from case to case, but it will usually involve the employer seeking a medical opinion on the prognosis for the employee, consulting with them regarding their future employment and warning them of the risk of dismissal from work before a decision is made.

[9]Ms Young referred me to Spencer v Paragon Wallpapers

1977 ICR 301

in which it was held that the basic question is whether in all the circumstances the employer can be expected to wait any longer and if so how much longer.

[10]She also referred me to East Lindsey DC v Daubney

[1977] IRLR 181

in which In upholding the decision of the industrial tribunal, Mr Justice Phillips gave the following advice: “We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves on the true medical position, it will be found in practice that all is necessary has been done”.

[11]Finally she referred me to Dundee City Council v Benjamin Sharp EAT 11 Oct 2011 in which it was held that main two questions which arise in capacity dismissals are(i) whether the employer should be expected to wait any longer and

(ii) whether before dismissing the employer has taken reasonable steps to ascertain the medical position and take that into account.

[12]The Respondent relied on capability as a potentially fair reason for dismissal but had no written capability or attendance policy. That being the case it should in the circumstances of this case have adopted a fair procedure fitted to the Claimant’s abilities to participate in it. This should have included warning the Claimant that dismissal was being contemplated and giving her a reasonable period and opportunity to respond. No reasonable warning was given as the first reference to resignation or dismissal took place the day before the dismissal itself. Steps should also have been taken to get an OH or doctors report on the Claimant’s prognosis.

[13]The Respondent has submitted that Mrs Holloway’s contact with the Claimant prior to the dismissal in fact amounted to reasonable consultation. I reject this. There was little substantive contact between Mrs Holloway and the Claimant and it was not until 2023 that C even found it that Mrs Holloway was her line manager. Prior to May 23 the discussions between Mrs Holloway had been to do with such matters as the Claimant’s possessions and pay slips and the meeting on 25/5/23 was too little too late.

[14]The Respondent suggested in cross-examination and in submissions that it would have been unreasonable to require C to attend a formal meeting or go through a formal procedure because it would have made her anxious, and the Claimant had said she found the contact from Ms Holloway on 25/5/23 to be “harassing”. However, C stated in evidence that it was being suddenly asked to resign on 25/5/23 that she found harassing and that insofar as a formal meeting is concerned, even though it would have made her anxious she would have wanted it, and could well have been able to attend such a meeting, perhaps accompanied by a friend.

[15]It was unreasonable and unfair for R to dismiss C without at least inviting her to a further formal meeting to discuss the matter. The meeting on 25/5/23 was informal and C had not had time to prepare or think about the matter. It may be that C because of her anxiety would not have taken up an invitation had it been issued to attend a formal meeting at the workplace to discuss her (in)capability to work and the proposal to dismiss, but she could in that case have wished to have another meeting at her home, or remotely by video, or have made written representations. She was also not offered any appeal. R acted hastily and summarily and in a procedurally unfair manner. Hence C was unfairly dismissed.

[16]C is entitled to a basic award for unfair dismissal which is calculated based on the employee's age, length of service, and the average weekly wage at the time of dismissal, even if the employee is on long-term sick leave with no pay. The formula is: 0.5 week's gross pay for each year of service under 22, 1 week for each year between 22 and 41, and 1.5 weeks for each year over 41. C who was born on 15/2/1967 was 39 years of age when her employment with R started on 3/7/2006 and she turned 41 on 15/2/2008. By the time of her dismissal in May 2023 she had 17 years of service including 15 years while continuously aged 41 or older and 2 years all or part of which she was younger than 41. Hence she is entitled to (15 x 1.5 = 22.5) + 2 = 24.5 weeks x £250 per week = £6125 as a basic award.

[17]In addition, C is entitled to £350 compensation for loss of statutory rights.

[18]On the subject of loss of income post-dismissal, I have noted the submission that the Claimant had previously been ill and returned to work but I find that, had her employment continued after May 2023, there is no evidence that the Claimant would have been able to work and therefore her income would have been nil in any event. I find also that had R acted fairly the substantive outcome would have been the same (save for perhaps a week or two of delay during which the Claimant would have received nil pay), because the Claimant had been absent for over three years, and there was no reasonable return date in sight. Even now there is no evidence that the Claimant would have been fit to return to work at any time since dismissal. In May 23, R, which is not a large employer, understandably did not want to continue with the situation and it would have been fair and reasonable for it, after going through a reasonable procedure, to dismiss C in any event and I find that it would have done so. For these reason I make no compensatory award for lost income. Total award Notice pay £3000 Basic Award £6125 LOSR £350 TOTAL £9475