Ms Stacey S Navaei/CookeClaimantPoundland LtdRespondent
Before
Employment Judge HarfieldDate 7 May 2021
JUDGMENT
In the absence of an ET3 response form from the respondent, and there being sufficient material before me to enable a proper determination to be made, I uphold the following claim(s):• Unfair Dismissal This judgment applies to liability only. The matter will now proceed to a hearing on remedy, before an Employment Judge sitting alone, with a time estimate of one hour, the claimant’s other outstanding complaints in respect of arrears of pay, holiday pay, failure to provide an itemized pay slip and failure to provide particulars of employment will also be dealt with at the hearing. I act in accordance with my powers under Rule 21 of the Employment Tribunal’s Rules of Procedure 2013. JUDGMENT Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claimant was unfairly dismissed. The respondent is ordered to pay the claimant: a) Basic award of £466.98 b) Compensatory award (gross ) of £8016.49 c) 25% uplift to compensatory award for failing to follow the ACAS Code of Practice on disciplinary and grievance procedures of £2004.11 d) £108.00 expenses in respect of expenses of attending the benefits agency e) Loss of Statutory Rights of £500.00[2]The respondent has made an unauthorised deduction from the claimant's wages and is ordered to pay the claimant the gross sum of £3066.25.[3]The respondent has failed to pay the claimant’s holiday entitlement and is ordered to pay the claimant the gross sum of £1103.62.[4]The respondent has failed to give the claimant itemised pay statements.[5]The respondent has failed to provide a statement of changes to the claimant’s particulars and is ordered to pay the claimant the sum of £622.64. 4.17 Rule 21 judgment – universal template. September 2017 Case No:1600642/2019 JUDGMENT having been sent to the parties on 18 September 2019 and reasons having been requested by the Claimant in accordance with Rule 62(3) of the Rules of Procedure 2013:
REASONS
Conclusions
[1]The ET1 was presented on 16 May 2019. Further particulars of claim were submitted on 17 May 2019. Both were served on the Respondent on 28 May 2019 to the store address in Barry where the Claimant had worked. The Respondent failed to enter a Response on or before 25 June 2019. The Respondent was notified by letter of 12 July 2019 that no Response had been received. A Judgment (liability only) was promulgated on 21 August 2019 and a Remedy Hearing was listed for 17 September 2019. Both were copied to the Respondent.[2]The Tribunal heard oral evidence from the Claimant and two witness statements from Ms E Harwood, Ms A Huxter and Ms V Spiteri. The Claimant had produced a bundle of documents. The Claimant brought claims of unfair dismissal, unpaid holiday pay, arrears of pay, other payments, failure to provide itemised pay statements and failure to provide statement of changes to the Claimant’s particulars of employment.
Findings of Fact
[3]I made the following findings of fact on the balance of probabilities.[4]The Claimant has learning difficulties and also has stress related anxiety and depression. She commenced employment with the Respondent on 26 November 2015 and was provided with a fixed-term contract for 8 hours per week until 26 February 2016. This was the fixed-term end date specified in the contract. She was employed as a Sales Assistant at the Respondents’ store in Barry, South Wales. Her rate of pay was £6.77 per hour. The fixedterm contract end expired and the Claimant continued to work for the Respondent on a consistent and regular basis of more than 8 hours per week.[5]The Claimant had sought details from HMRC to confirm her hours and pay due to the difficulties she experienced in accessing her pay statements which I return to below. The HMRC records showed that during 2016 she worked an average of 22.5 hours per week, during 2017 she worked an average of 17.39 hours per week and during 2018 she worked an average of 19.88 per week and her average hours in 2019 were 19.18 and at the time the Claimant’s employment ended she was on an hourly rate of £7.83 per hour.[6]In November 2018 the Claimant was alleged to have attended work under the influence of alcohol. She was suspended on 23 November 2018 on full pay pending an investigation in respect of the allegation which was deemed to be potentially gross misconduct. The allegations were as follows, that on 22 November 2018 she came to work under the influence of alcohol. The suspension letter was signed by Mary Taylor, Store Manager on behalf of Poundland.
The Law
[7]A disciplinary hearing was arranged for 17 December 2018. The Claimant was accompanied by a Ms V Spiteri who was the Claimant’s Support Worker. The Claimant at the point of the disciplinary hearing had been signed off sick by her doctor due to ongoing depression. The Tribunal had sight of a witness statement from Ms Spiteri. Ms Spiteri described the hearing as completely one-sided. She described the manager conducting the hearing on behalf of the Respondent repeatedly asking the Claimant the same questions and not permitting the Claimant to defend herself. During the hearing Ms Spiteri described how she whispered to the Claimant to ask for evidence because at no time had the Respondent provided any evidence to support their allegation against the Claimant about her being under the influence of alcohol.[8]Prior to the disciplinary hearing the Claimant had not been provided with any evidence on which the Respondent intended to rely. She was not provided with any witness statements or any documentary evidence whatsoever. At the disciplinary hearing the Claimant explained to the best of her ability the reasons why she may have been considered to have been under the influence of alcohol. The Claimant explained that the one of the side effects of her prescribed medication was slurring. This was recorded on the disciplinary notes however this was not taken into consideration by the manager conducting the disciplinary hearing. The Claimant was summarily dismissed verbally albeit she did not receive confirmation of the summary dismissal in writing for a further 37 days.[9]The Claimant in the meantime appealed her dismissal and on 23 March 2019 she was reinstated by the Respondent following successful appeal. In that appeal outcome letter dated 25 March 2019, Mr Gareth Alexander, Area Manager for and on behalf of Poundland confirmed that her appeal had been upheld and she was offered an alternative store to work in if required. Mr Alexander confirmed that he had instructed the payroll team to ensure back pay for her contracted hours was processed in the next pay run. Mr Alexander found as follows,(1) it had been highlighted that the Claimant had ongoing health issues and that she was supported by key health workers. The Claimant had presented evidence of a condition in which she took medication for and stated that the medication had a number of different effects on persons, one of them neurological complications of the Claimant’s Vitamin B12 deficiency was slurring and Mr Alexander specifically noted that this was in the disciplinary notes (which the Tribunal did not have sight of) but not explored.(2) Mr Alexander records that the Respondent had no medical evidence that the Claimant was unfit for work due to alcohol and(3) it took 37 days to receive the outcome letter and this caused further stress and anxiety on her condition.[10]Following the Claimant’s reinstatement the Claimant attempted to return to work. She attended a return to work meeting with her manager but this was dealt with in an inappropriate manner. It took place in the staff room where other people were present and there was a reluctance by the store manager to provide the Claimant with a start date and/or give her hours of work. The Respondent failed to verify that the Claimant was well enough to be at work or have any regard to her ongoing medical condition or grievances. On 8 May 2019 the Claimant had sent a detailed report of her grievances to Natalie Wallace in HR Central Services and the Managing Director of Poundland, Mr Barry Williams. She received a telephone call on 10 May 2019.[11]Following numerous failed attempts to receive the back pay she had been promised by Mr Alexander the Claimant resigned on 15 May 2019.
Conclusions
[12]According to a letter from Mr Renshaw of 25 July 2019 during the call on 10 May 2019 the Claimant was invited to attend a grievance meeting to discuss the grievance in more detail. By this point the Claimant had already attended five different meetings in an attempt to obtain her reinstatement and also the failed return to work meeting with the Store Manager at the Barry store. In the circumstances decided that after seeing her doctor on 10 May, and taking advice from her GP, she considered the impact and the toll on her mental health was such that she could not return to work for the Respondent. Pay slips[13]The Respondent provides access to pay slips for their employees via an online platform called MyView. This requires an employee to log in to a website and enter details in order to access their pay slip. I heard evidence from the Claimant which I accepted that when she would attempt to click on the button which should access the pay slip, she repeatedly received an error message stating report to be run and nothing further would happen. As well as hearing from the Claimant about the difficulties in accessing her pay slips I had sight of a number of other witness statements as follows.[14]Ms Adrienne Huxter submitted a statement signed on 21 August 2019 in which she also describes difficulties in obtaining her pay slip. Ms Huxter has never been able to obtain a pay slip or P60 since working for the company for more than 3 years. It is only possible to obtain a pay history. Furthermore the only way to obtain a password for the website is to request a password online but this also has difficulties. Ms Huxter reported when she is finally able to log in, she is not able to see a pay slip with tax and other deductions detailed and also she corroborates the Claimant’s evidence that there is a box to click on for a pay slip nothing happens when they click the button.[15]The Tribunal had sight of another witness statement from Ms Harwood. Ms Harwood describes working for the Respondent for the last two years and was initially unable to access any pay information online at all due to not having any log in details from MyView. When Ms Harwood was able to log in to her account she also corroborates that it is not possible to access pay slips only to see a pay history. Both Ms Harwood and Ms Huxter do not have laptop or computers and therefore in order to access pay slips have to attend their local library to use the computer facilities there. This has caused both these individuals and the Claimant difficulties with their housing and council tax benefits claims as they are unable to provide proof of income.[16]In respect of the Claimant’s position, she had only been able to obtain 20 pay slips over the duration of her employment, 4 of which were provided by the Respondent for the purpose of the appeal. In respect of the P60’s the Tribunal had sight of an email from HR dated 1 March 2019 which confirmed that the Claimant was also unable to access her P60 on MyView but could request a statement of earnings from the HR Department.[17]Following the Claimant’s dismissal she remained signed off sick and was referred to the mental health nurse and Mind and has been under their care since. She is not well enough to find work. During her employment she was in receipt of Universal Credit due to her low income. Her basic pay was £155.66 gross. At the time she left her employment she was on £7.83 per hour averaging 19.88 hours per week. Conclusions Unfair dismissal I make a basic award of £466.98.[19]In relation to the compensatory award the period of loss is from the date of dismissal to the date of the Remedy Hearing (15 May 2019 to 17 September 2019) is 17 weeks and 5 days this equates to £2,724.05 (gross).[20]I have determined that I should apply a 25% uplift in the compensatory award pursuant to S207A (2) Trade Union & Labour Relations (Consolidations) Act 1002 for the Respondent’s unreasonable failures to comply with the ACAS Code on Disciplinary and Grievance Procedures in that: I. The Respondent failed to establish the facts of the case. There was no investigation and they failed to take into account the Claimant’s explanation that medication was the reason for her slurring; II. They failed to provide the Claimant with any of the evidence upon which they relied in advance of the hearing; III. The Claimant was not permitted to set out her case and answer allegations that had been made. IV. The Respondent failed to provide the reasons for dismissal in a timely manner therefore denying the Claimant a reasonable opportunity to formulate her appeal.[21]I consider the failings of such a serious nature I apply the maximum uplift.[22]This equates to £681.00 on losses between date of dismissal and date of remedy hearing.[23]I award a future loss until 14 May 2020 which is 34 weeks at £155.66 per week which equates to £5,292.44 (gross) with a 25% uplift of £1,323.11. This is the period in which I determine just and equitable having regard to her loss likely to be sustained in consequence of the actions of the employer. I take into account that the Claimant is not currently fit to mitigate her loss and from the evidence before me namely the advice from her GP in May 2019, the reason she is not fit for work is the effect of her treatment by the Respondent and the impact on her mental health.[24]I award the Claimant the sum £108.00 for job seeking expenses already incurred.[25]I award the Claimant the sum of £622.64 under Section 38 Employment Act 2002 for failing to provide the Claimant with particulars of the change in her contract reflecting the hours worked and the expiry of the fixed term element. Arrears of pay[26]I award the Claimant the sum of £3,066.25 (gross) for arrears of pay. This is based on unpaid wages for the period between the Claimant’s dismissal and her reinstatement from 7 December 2018 to 24 May 2019. This period equates to 24 weeks at £155.66 per week. I have calculated the arrears of pay to total £3,335.84. I give credit for the £669.59 paid by the Respondent which leaves an award of arrears of pay of £3,066.25. Failure to provide itemised pay statements[27]My reasons for finding that the Respondent has failed to provide itemised pay slips are as follows. The online platform provided by the Respondent to access pay slips was not fit for purpose. I had evidence from 3 witnesses about the difficulty they encountered in accessing pay statements. Firstly, if an employee does not have the resources to own a laptop or computer at home they have to go to their public library or other resource centre where they can access the internet to access the online platform. I accept that in principal an online platform would not in itself amount to a failure to provide itemized pay statements but only if the online platform is functioning and that accessing that platform by unfettered provision is maintained. Neither occurred in the case of the Respondent’s online platform. Secondly, even when the platform could be accessed it did not work. Employees were not able to access pay slips let alone print or access copies which could then be produced. This had the potential to affect their benefit claims and caused financial hardship and stress. I accepted it had done so.[28]I was not however taken to any specific financial loss attributable. Holiday pay[29]The Claimant has been paid holiday pay since the start of her employment based on 8 hours per week. HMRC records proved that she has averaged over 3 years 16 hours per week. Taking a broad brush approach to the calculation I award holiday pay on the basis of the shortfall between 8 hours and 16 hours.[30]In respect of 2017 the award is £522.00.[31]For 2018 the shortfall I find is £352.12 and for 2019 pro rate I find that the shortfall was £229.50 totalling £1,103.62.[1]The Claimant’s application for a costs order and preparation time order succeeds.[2]The Respondent is ordered to pay the Claimant preparation time of £2652.00 and;[3]The Respondent is ordered to pay the Claimant the sum of £187.89 in respect of expenses incurred.[4]When the Respondent’s representatives went on record on 20 September 2019 they advised the Tribunal that the Respondent was not aware of this claim prior to the receipt of the judgement on remedy which was sent to the parties on 18 September 2019. They requested and were duly sent copies of the ET1 and all relevant hearing notifications and case management orders. The Respondent did not make any further applications for example to set aside the judgement or to seek permission to file a response out of time. Accordingly the judgement on liability remedy stood. Following the referral of the Claimant’s costs application to a judge it was directed that this be sent to the Respondent for comment. This was duly sent on 20 September 2022 to the email address that had been provided to the tribunal when the Respondent’s representative went on record the previous year.[5]The Respondent’s representative did not reply to the application for costs and was chased for a response on 5 December 2020 by the tribunal staff.[6]No reply was received until 13 January 2021 where another fee earner from the Respondent’s representatives wrote to the Tribunal advising that the fee earner who had gone on record the previous year had been on maternity leave and her emails had not been checked during her maternity leave. They set out their objections to the application for a preparation time order. These were as follows: a) There is no obligation on a prospective Respondent to participate in ACAS early conciliation. b) Successful parties in the Employment Tribunal do not generally receive awards for preparation time. The Claimant would have had to spend many hours on her claim in the event that the Respondent had defended these proceedings. The Claimant had not put forward any evidence that more time was spent as a result of the Respondent not defending the claim. c) The Respondent was not aware of the proceedings until they received notification of judgement against it. This is the reason the Respondent did not submit a response and cannot be characterised as conduct. d) In any event the consequence of not submitting response was that the Respondent was quite correctly not permitted to defend the claim. Rather than being prejudicial to the Claimant this allowed to bring a claim effectively unopposed. Any costs that the Claimant incurred were as a result of complying with the tribunal orders. The Law[7]The ability to award costs in the Tribunal is set out in the Employment Tribunal Rules of Procedure 2013.[8]Rule 76 (1) provides that the Tribunal may make a costs order or a preparation time order and shall consider whether to do so when (a) a party or parties representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) all the way that the proceedings (or parts) have been conducted; or (b) any claim or response had no reasonable prospects of success.[9]Accordingly the Tribunal should consider first of all whether the conduct falls within Rule 76 (1) (a) or (b) (has the party conducted the proceedings unreasonably etc) and if so whether to exercise the discretion to make such an order.[10]When exercising the discretion to order costs the Tribunal must look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had (Yerrakalva v Barnsley MBC [2012] IRLR 78). The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion (McPherson v BNP Paribas SA (London Branch), 2004 ICR 1398).[11]Where the Tribunal is considering a costs application at the end of, or after, a trial, it has to decide whether the claims "had" no reasonable prospect of success, judged on the basis of the information that was known or reasonably available at the start, and considering how, at that earlier point, the prospects of success in a trial that was yet to take place would have looked. But the Tribunal is making that decision at a later point in time, when it has much more information and evidence available to it, following the trial having in fact taken place. As long as it maintains its focus on the question of how things would have looked at the time when the claim began, it may, and should, take account of any information it has gained, and evidence it has seen, by virtue of having heard the case, that may properly cast light back on that question. But it should not have regard to information or evidence which would not have been available at that earlier time. The Tribunal may draw on the evidence that it has read and heard at the full hearing, provided that it does so to inform its view of the prospects at the earlier time, based on what was known, or could reasonably have been known, back then (Radia v Jefferies International Ltd UKEAT/0007/18/JOJ).
Conclusions
[12]The Claimant’s application is made under 76 (1) (a). I consider I may also make a PTO order in respect of 76 (1) (b) if I consider the response had no reasonable prospect of success, even though the Respondent did not enter a response. It cannot follow that if a Respondent fails to enter a response that they can escape liability for costs provided of course that the requirements are satisfied. Further, although the Claimant (who is a litigant in person) has not applied specifically under Rule 76 (1) (b), the Rules provide the Tribunal may make such an order.[13]There was no basis for me to conclude that the Respondent deliberately ignored the proceedings or that there was a deliberate ploy to behave in a certain way knowing the Claimant’s learning and financial difficulties. I do however find there has been a blatant disregard for a fair procedure when dismissing the Claimant under S98 ERA 1996 and the Claimant’s welfare in the events leading up to her dismissal as well as the Tribunal procedure for the reasons set out in the written reasons.[14]The Respondent’s representative has maintained in their objection and correspondence that the Respondent only became aware of the claim upon receiving the remedy judgment. I am unable to accept this submission and have no evidence before me to support it. The Respondent was sent numerous correspondence from the Tribunal including the service of claim, liability Judgment, notice of remedy hearing. The HR department were also sent a list of documents by the Claimant on 22 July 2019 which they acknowledged by email as well as a number of other documents sent by tracked and signed for recorded delivery. I have received no explanation as to why therefore the Respondent maintains they only became aware of the claim upon receipt of the Judgment on remedy.[15]In my judgment the Respondent has acted unreasonably in the way it has conducted the proceedings. The Respondent has, with no reasonable or adequate explanation completely ignored the whole process. It failed to enter a response or comply with any of the Tribunal’s orders even thought the HR department were aware and acknowledged the Claimant’s list of documents sent in compliance with the orders.[16]The Respondent suggests that in not defending the application there has been no prejudice to the Claimant and that it allowed her to bring the application unopposed. There could be some merit in the contention that the Claimant has only incurred the costs of preparing the hearing that she would have incurred even if there had been a defence to the claim, as the Claimant had to comply with case management orders anyway. However I reject this contention for two reasons.[17]Firstly, this cannot be a reason to defeat a claim for costs as this would be the case for all claims subject to tribunal orders.[18]Secondly, and this overlaps with 76 (1) (b), I have considered whether, had the Respondent engaged and complied with the procedure, the costs would still have been incurred and my conclusion is they would or should not have been as if the Respondent had entered a response and continued to defend the case this would have also been unreasonable conduct as the defence had no reasonable prospect of success.[19]I set out in my written reasons at paragraph 20 that a 25% uplift should be applied due to the serious failings of the ACAS Code on Disciplinary Procedures.[20]The Respondent themselves recognised the original dismissal was wholly unfair and reinstated the Claimant on appeal but then failed to pay her the back pay promised or make arrangements for the Claimant to return to work (see paragraphs 7, 8, 9, 10, 11 and 12 which set out the findings of fact). They knew, and acknowledged in writing and in action at the point of reinstatement in March 2019 that there had been an unfair dismissal. I have no hesitation in concluding the claim for unfair dismissal had no reasonable prospect of success at the earliest point, even before proceedings were issued.[21]Accordingly the dismissal was substantively and procedure unfair and had no reasonable prospect of success.[22]The Claimant had to obtain pay records from the HMRC such were the failings of the Respondent’s online platform which is supposed to provide the itemised pay statements or holiday pay. This took time and effort on the part of the Claimant to obtain information that should lawfully have been available to her by the Respondent. The HMRC records also recorded that despite working an average of 16 hours per week the Claimant was only ever paid holiday pay based on 8 hours per week.[23]The Claimant was put in the position of having to bring the claim as she had been unfairly dismissed and had not been provided with itemised pay statements. She incurred costs in having to conduct the claim right through to a remedy hearing as the Respondent unreasonably failed to enter a response or comply with orders. I consider it appropriate to exercise my discretion and award the Claimant a preparation time order as well as the expenses she incurred in bringing the claim under both 76 (1) (a ) and (b).[24]The Claimant has claimed a total of 68 hours preparation. Whilst I have no doubt the case took time to prepare and research and I also take into account that the Claimant’s representative was not legally qualified. This included preparation of the claim and compliance with the orders, preparation (bundle and 4 additional witness statements as well as the Claimant’s statement) as well as attendance at the Tribunal Hearing. Taking a broad brush approach I consider this to be a reasonable and proportionate amount of time.