Mrs S ScottDr D BrightIn person for claimantMr E Johnstone for respondentMr E Johnston for respondentDate 19 July 2019
JUDGMENT
[1]The Claimant was constructively dismissed by reason of redundancy.[2]The Respondent is ordered to pay to the Claimant a redundancy payment, calculated on the basis of 12 time 1 ½ weeks’ pay, in the sum of £2290.32[3]The Respondent is ordered to pay to the Claimant damages for breach of contract (wrongful dismissal 12 weeks’ notice) in the gross sum of £1526.88[4]The claim of age discrimination is dismissed. EMPLOYMENT JU DGE LANCASTER DATE 19th July 2019 Case No: 1800183/2019 11.6R Judgment – Reconsideration refused – respondent - rule 72 EMPLOYMENT TRIBUNALS Claimant: Mrs MD Webb Respondent: EB Johnston Limited
REASONS
There is no reasonable prospect of the original decision being varied or revoked, because: This was a unanimous decision of a full tribunal panel. The application for reconsideration is merely a repeat of the Respondent’s legal arguments and submissions on the facts which were made at the hearing. These have already been fully considered in making our findings and reaching that judgment. We found that the Claimant did indeed resign rather than that the Respondent terminated her employment. This resignation was, however, in response to a fundamental breach of contract on the part of the employer so that it amounts, in law, to a constructive dismissal. The reason for that dismissal we found to be connected to redundancy. Redundancy is defined by statute as a diminution – whether temporary or permanent, and for whatever reason - in the requirement for employees to do work of a particular kind or at a particular place. The Claimant has not been awarded any compensation for loss of future earnings, but only damages for not being given proper notice. _____________________________ Employment Judge Lancaster Date 12th August 2019 JUDGMENT SENT TO THE PARTIES ON ..................................................................................... ...................................................................................... FOR THE TRIBUNAL OFFICE Case No: 1800183/2019 1 EMPLOYMENT TRIBUNALS Claimant: Mrs M D Webb Respondent: EB Johnston Limited HELD AT: Hull ON: 18 July 2019 BEFORE: Employment Judge Lancaster Mrs S Scott Dr D Bright REPRESENTATION: Claimant: In person Respondent: Mr E Johnston JUDGMENT having been sent to the parties on 27 August 2019 and written reasons having been requested by the Employment Appeal Tribunal, the following reasons are provided, taken from the transcript of the oral judgment delivered upon the conclusion of the hearing : REASONS
The issues
[1]The issues were set out in the case management order of Employment Judge Maidment dated 9th April 2019, a copy of the material parts of which is now annexed as an endnote to this judgmenti.
The factual background
[2]The Claimant Mrs Margaret Webb had worked at the butchers and delicatessen of EB Johnston Limited on Carr Lane in Hull for some 12 years up until September 2018. Case No: 1800183/2019 2[3]There is a dispute about what happened at that time. In 2018 extensive roadworks have been undertaken outside the shop, it was affecting trade and Mr Johnston, who is effectively the owner of this family firm, decided he needed to cut the hours of staff.[4]We have heard evidence from both Mr Johnston, Mrs Webb and also one other employee, Beverley Latus. We are afraid that the recollections of all appear to be not entirely clear, but we can establish this set of facts.[5]We are satisfied that there was a conversation with Mrs Webb on Thursday 20 September. That was at the same time as other members of staff were told by Mr Johnston that their hours would be reduced because the opening hours of the shop were changing. On that occasion it is quite clear that Mrs Webb came away with an understanding that she was being “let go”. On balance we do not accept that those words were actually spoken. Certainly it would not have been at the time Mr Johnson’s intention to let her go permanently. And certainly nothing was said to indicate precisely when she would finish. And indeed, on her own evidence, the following day Mrs Webb decided she needed some clarification as what was meant.[6]So something was said on the Thursday, but whatever it was it did not amount to unambiguous words saying that Mrs Webb was dismissed at that point. When she went back and asked for clarification on the following day the Friday, at that point it seemed to be common ground that Mr Johnston did set out his position that he was not “dismissing” her but intending to “lay her off”. As to the immediate future it is unclear to us whether anything was said about the Claimant coming back for Christmas or not. Certainly there were no dates given as to how long it would be anticipated that the purported lay off would last for. ,And it is now common ground that there was some conversation whereby Mrs Webb was asked to ensure that she had left her phone number, so that if there was any upturning work she would be contacted.[7]This was not a satisfactory state of affairs for Mrs Webb who needed certainty. Not least because she required clarification whether she was or was not in work in order to secure her housing benefits for her rent with the council. And again it is common ground therefore that her position was that if she was not going to be given any work at all in the immediate future she wanted that to be made permanent to confirm that she was dismissed, receive her P45 and she would have a clear understanding of what her position was. It is equally clear that Mr Johnston was adamant in his view that he was not intending to dismiss her and therefore he said if she wanted to end her employment she would need to send in a resignation letter before she could receive her P45 and confirmation that the employment had ended. It was some two weeks later on 6 October the Claimant did then send in a resignation letter. Was the Claimant dismissed?[8]So in these circumstances although there is still some lack of clarity as to precisely who said what we do not accept that Mrs Webb was actually dismissed by Mr Johnston on the Thursday. He purported to “lay her off”, and her employment actually ended when she put in her resignation letter. But at that stage when she Case No: 1800183/2019 3 resigned her employer was in breach of contract. She had not been given any work at all for two weeks. It is right that the contract does not state what hours she would work and talks only of an obligation to work “such hours that are required to carry out your duties to the satisfaction of the company and as necessitated by the needs of the business”. But that contract, properly construed, does not give the employer the right unilaterally to say that the employee will not work any hours at all.[9]In actual practice for the whole of the 12 years she had worked for this store the Claimant had had a set shift pattern. She had varied it by negotiation, reducing her hours as she got older and latterly it is agreed that she was working a fixed and set pattern Tuesday to Saturday 10.30 till 1.45 a total of 16 and a quarter hours a week.[10]This is not as Mr Johnston seems to believe a “zero hours contract” that means he is not obliged to give the Claimant any hours at all. Either by variation of those written terms of the contact or by an implied term arising from custom and practice, the Claimant worked particular hours. Indeed looking at the contract it does not say it is a “zero hours contract: It says “you are to work”. The expectation is that she will work some hours, and it is simply the amount of those hours that is capable of being negotiated from time to time between the employer and the employee.[11]So as at the date of the resignation letter, 6 October, the employer was in breach of contract. These terms do not allow the Respondent simply and unilaterally to say the Claimant would not have work at all. And, as has already been pointed out at the earlier case management hearing by Employment Judge Maidment, there is certainly nothing in that contract that gives an express right to lay an employee off.[12]So at the point she resigned the Claimant would have been entitled to do so without notice because there was a fundamental breach. It is an essential term of the contract of employment that you are given work and paid if that is what the contract provided for, and this one did. By the Respondent not doing that it is a breach of contract that goes to the very heart of the employment relationship. So the Claimant is entitled to say, as she has done that this is a breach of the implied term of trust and confidence or, indeed, a breach of the particular term that she should be offered work and not be laid off without her consent.[13]So that means that although the Claimant resigned rather than being actively dismissed, it is in law a constructive dismissal (applying section 95 (1) (c) of the Employment Rights Act 1996). What was the reason for dismissal?[14]However, the reason for that dismissal is quite clearly redundancy, as defined by section 139 of the Employment Rights Act 1996. That is a diminution in the requirement for employees to carry out work of a particular kind. It is clear that because of the down turn in business as a result of the extensive roadworks Mr Johnston’s business did not require all staff to work their full hours. Redundancy is a potentially fair reason for dismissal.[15]That diminution in the requirement for workers does not have to be permanent, it can be temporary. This may well have been temporary so that in due course Mr Johnson did employ somebody else. But at this particular point in time there Case No: 1800183/2019 4 was a redundancy situation. That is the reason for dismissal and the Claimant is therefore entitled to a redundancy payment. On a claim before the Tribunal, where the issue is whether an employer has a right to a redundancy payment, where there has been a dismissal (including a constructive dismissal) then there is also a presumption that the dismissal was in fact by reason of redundancy: section 163 (2) Employment Rights Act 1996. The Claimant is entitled to a redundancy payment under section 164 (1) (d) of the Employment Rights Act 1996 by reason of her having presented a complaint of unfair dismissal in good time.[16]She is also entitled to receive compensation for the notice period she should have received, which should have been 12 weeks (under section 86 Employment Rights Act 1996 – one week for each completed year of service up to a maximum of 12).. Was the Claimant treated less favourably because of her age?[17]The Claimant has further raised an argument that because only she and one other employee of similar age (the Claimant being 69 at the time and her colleague Mrs Hudson being 70) were the only two employees who had their hours cut completely that is an indication of age discrimination. An employee has the right not be treated less favourably that an employee in a different age group was treated, section s 5 and 39 Equality Act 2010.[18]It is certainly enough to raise that inference (section 136 Equality Act 2010). However, we heard Mr Johnston’s account and we are satisfied he has persuaded us that the reason why these two ladies were the ones who lost all their hours was not in fact because of their age. They are older than all the other employees but not significantly so. They are some five or six years older than the next oldest employee. But the reason why they were singled out was because all the other employees worked longer hours and particularly covered those hours from the start to the end of the day. So, to reallocate hours in the midday shift - where the Claimant worked in particular - could not have been achieved by those hours being redistributed amongst other employees. It would not be reasonable to expect somebody to come in, for instance, to open up the shop then take an extended gap in the middle of the day and come back to close up the shop simply to accommodate the Claimant. That is sufficient reason to show that these other workers, as compared to the Claimant, were not in the same material circumstances that she was: so that section 23(1) of the Equality Act 2010 is not in fact satisfied. Mrs Hudson is slightly different because she worked on a Saturday, but again she is in a different position to any other employee.
Remedy
[19]So the claim of age discrimination fails but the claims that this was a dismissal on grounds of redundancy and a dismissal in breach of contract succeed.[20]After this had happened and after she had put in her notice and received her P45, the Claimant then decided that the best option was simply to say she would treat this as an enforced retirement and she did so. She does not therefore claim any further loss of earnings. She has not sought work since this time. But the position Case No: 1800183/2019 5 is even if she was thinking that she may be closing in on her retirement age, she had not made that decision finally. It was forced upon her to take it slightly earlier than she otherwise will have done.[21]She had worked for 12 years. She is entitled therefore to be compensated on a statutory redundancy payment for one and a half week’s pay for each of those 12 years. That is 18 weeks’ pay. She was working 16 and a quarter hours at the national minimum wage which was then £7.83. That is £127.24 gross per week. 18 weeks at that rate entitles her to redundancy payment from the company of £2,290.32. She is also entitled to 12 weeks’ pay in lieu of notice and that at that same rate of £127.24 entitles her to damage in breach of contract of £1,526.88. Total figure is therefore £3,817.20.[22]That is the award we make and it seems there is no other need to refer tor any further matters of remedy and compensation, nor to consider any possible element of unfairness in making the Claimant redundant.. So she receives a redundancy payment and the pay in lieu of notice, but as the claim for age discrimination does not succeed we do not therefore need to explore any issue as to any hurt feelings.