Employment Judge A.M.S. GreenMiss K Nowell - Counsel for respondentDate 1 July 2022
JUDGMENT
[1]The claimant’s claim for ordinary unfair dismissal is dismissed upon withdrawal.[2]As at the date of termination of employment, the claimant was contractually entitled to 4 weeks’ notice of termination of employment.[3]The effective date of termination of the claimant’s employment was 30 March 2021.[4]On 20 April 2020, the respondent gave the claimant sufficient notice requiring her to take holiday whilst she was on furlough.
REASONS
[1]The claimant has ticked the following boxes in her ET 1 claim form:a. Ordinary unfair dismissal;b. Automatic unfair dismissal;c. A statutory redundancy payment;d. Notice pay;e. Holiday pay;f. Arrears of pay; andg. “Other payments”.[2]The claimant provided particulars of claim which run to many pages. In summary she claims:a. She was ostensibly dismissed by the respondent on 26 March 2021 by way of redundancy. She was employed as the Operations Manager of a wedding venue operated by the respondent. She says that the main or only reason for her dismissal was because she asserted a statutory right in that she had asked for holiday entitlement and that, therefore, the dismissal was automatically unfair under Employment Rights Act 1996, section 101A or 104 by reason of requesting she was paid her holiday entitlements.b. There is a dispute over the date of her notice letter. The respondent says that she was dismissed on 26 March 2021 whilst the claimant says that she was notified on receipt of the letter as per the terms of her contract of employment which stipulates how notice must be given and when. She claims that she was entitled to 5 weeks’ notice. The respondent believes that she was only entitled to 4 weeks’ notice. Consequently, she believes that a termination date should have been 6 April 2021, five weeks after the letter was served on her according to clause 16.2 of her contract of employment. By only giving her four weeks’ notice, the respondent acted in breach of contract.c. The respondent failed to pay her for hours that she worked.d. For part of the time that the claimant was on furlough, the respondent failed to top up her salary to 100% and she only received 80% of her pay.e. The claimant is entitled to be paid for 39 days holiday accrued but untaken as at the date of termination of her employment.f. The claimant was contractually entitled to be paid £30,000 per year but was only paid £28,000 per year.g. The claimant was entitled to payment of the statutory redundancy payment. The respondent denies liability.[4]I conducted a public preliminary hearing on 31 August 2021. We worked from a digital bundle. Miss Nowell provided a skeleton argument and made oral submissions. Mr Guildford made oral submissions.[5]It was agreed that the only matters that I would deal with on substantive points of law at this hearing were as follows:a. Did the claimant require two years’ service as per clause 14.2 of her contract of employment to be entitled to 5 weeks’ notice? The contract was produced in the hearing bundle [118-122]. The respondent’s position is that she did. The claimant’s position was that she did not. For the purposes of the breach of contract claim (failure to provide the requisite notice of termination of employment) the parties agreed that the commencement date of the contract of employment was 1 November 2019. Furthermore, there was no dispute that the claimant signed the contract of employment on 30 June 2020 and the respondent signed it on 30 July 2020.b. What was the effective date of notice of termination of the claimant’s employment? This was relevant insofar as to determine whether the respondent had failed to pay the claimant for three days as part of her notice period. The claimant relies upon clause 16.2 of her contract of employment to the extent that any notice given by letter will be treated as being given at the time at which the letter would be delivered in the ordinary course of second-class post. Her contract was terminated by letter and consequently, she argued that notice ran from 2 March 2020. The respondent maintains 26 February 2021 is the date of giving notice given that Mr Guildford had acknowledged receipt of the letter which was also sent by email terminating the claimant’s employment. There is no dispute between the parties that Mr Guildford saw the letter terminating the claimant’s employment 26 February 2021.c. In relation to the claimant’s claim for accrued holiday pay in the time that she was on furlough, did the respondent give the claimant sufficient notice requiring her to take holiday? The respondent’s position is that sufficient notice was given in terms of emails sent to the claimant [132 & 135]. The claimant says she was not given sufficient notice.[6]The claimant’s contract of employment has been produced in the bundle [118- 122]. Clause 14 provides for termination of employment. Clause 14.2 states: The period of notice to be given by the employer to the employee to terminate the Employment is 4 weeks during the first year, an additional week is added to this notice period for every year worked, up to a maximum of 12 weeks.[7]Miss Nowell submitted that the correct construction of this provision was to require a complete year to be worked in order to acquire an additional week’s notice. Once one year of employment had been completed, the claimant would be entitled to 4 weeks’ notice. The natural interpretation of this provision was that the claimant must complete another year thereafter to acquire the right to 5 weeks’ notice. The provision was clear and unambiguous. If the claimant argued that the provision was ambiguous and to be determined in her favour, my attention was drawn to the fact that the contract had been negotiated and further changes had been made prior to the claimant signing it. Finally, the wording of the provision was similar to that used in calculating entitlement to statutory minimum notices of termination of employment which increases incrementally on completion of each year of service. Applying this interpretation to clause 14.2, continuity of employment for the purposes of the contract of employment ran from 1 November 2019 until its termination. At that point, the claimant had worked for one year, four months and four weeks and was, therefore, entitled to 4 weeks’ notice of termination of employment.[8]Mr Guildford argued that on completing one year of service, the claimant had acquired the right to 4 weeks’ notice. Thereafter, there was no requirement to complete a further year of service to increase the notice entitlement to 5 weeks. In other words, the right to the additional week of notice “clicked in” after working for one year.[9]The construction of a written document is a question of law, and it should be interpreted not according to the subjective view of either party, but in line with the meaning it would convey to a “reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract” (Spectrum Agencies v Benjamin EAT 0220/09 (quoting Lord Hoffmann in Investors Compensation Scheme v West Bromwich Building Society (No. 1) 1998 1 WLR 886, HL). This means that if a contract is badly drafted and its literal interpretation would lead to a result that had clearly never been intended by the parties, it should be interpreted by taking into account the context and commercial background behind it.[10]I agree with Miss Nowell’s interpretation of clause 14.2. I do not think that clause 14.2 is badly drafted and a literal interpretation of the mechanism for determining the length of notice required to be given is clear. During the first year of employment, the employer is required to give 4 weeks’ notice of termination of employment. An additional week is added to that notice period for every year worked up to a maximum of 12 weeks. A literal interpretation of that provision means that the right to additional weeks of notice increases on each yearly anniversary of employment by the employee. It is capped to a maximum of 12 weeks’ notice which echoes the statutory provision for minimum periods of notice. As at the date of termination of employment, the claimant had accrued between one- and two-years’ service based on the contractual commencement date of 1 November 2019. Therefore, she was entitled to 4 weeks’ notice of termination of employment.[11]Turning to the question of the effective date of termination of the claimant’s employment the starting point is the undated letter terminating the claimant’s employment [180]. The letter states, amongst other things: Unfortunately, we cannot identify any alternative work for you because there simply are no events. You are entitled to 4 weeks’ notice to end your employment with Thicket Priory Ltd based on your contract of employment. We will therefore pay your full pre-furlough monthly pay on March 26th. We do not require you to work for us during your notice period. Your last day of employment will be 26th March.[12]Although the letter is undated, the parties accept that it was written on 26 February 2021, and it was received by email and seen by Mr Guildford on the same day. The letter is clear. It serves 4 weeks’ notice on the claimant. Her employment would end on 26 March 2021.[13]Clause 16 of the contract of employment is relevant because it deals with the mechanism for serving notices and when notices are deemed to have been given. It provides:16.1 Notices by the Employee must be by letter addressed to the Employer at its principal place of business. Notices by the Employer must be by letter addressed to the Employee at his last known address in Great Britain.16.2 Any notice given by letter will be treated as being given at the time at which the letter would be delivered in the ordinary course of second class post. Any notice delivered by hand will be treated as being given upon delivery. In proving service by post it will be enough to prove that the notice was properly addressed and posted.[14]Miss Nowell submitted that service of the letter by email was akin to hand delivery. Under such circumstances, notice of termination would be treated as being given upon delivery. Consequently, the period of notice ran from 26 February 2021. Mr Guildford submitted that notice of termination was deemed to commence three days after 26 February 2021 (i.e. 2 March 2021). He said that three days was the time at which the letter would have taken before being delivered in the ordinary course of second-class post.[15]The wording of clause 16 is clear. It provides that if the employer wishes to serve a notice on the employee (e.g. a notice of termination of employment) it must do so by letter addressed to the employee at their last known address in Great Britain. Thereafter, the employer is given two options. It may either post the letter or it may deliver the letter by hand. If the letter is posted, the notice will be treated as being given by reference to the time that it would be delivered in the ordinary course of second-class post. Royal Mail second class delivery is in 2 or 3 working days. It is irrelevant whether the letter was sent by a faster mode of delivery (e.g. first-class post) when determining the date upon which notice is deemed to have been given. The contract of employment is silent regarding delivery of notices by electronic means such as email. Consequently, if a notice is sent by email, it will be ineffective.[16]In this case, the notice of termination of employment was both sent by email and by signed for post. Email was not a valid method of serving notice. However, the letter was also posted which is one of the two prescribed methods of giving a notice. The notice of termination of employment was deemed to have been given on 2 March 2021. This would be 2 working days after 26 February 2021. The 4-week period of notice would run from that date. If the respondent wished the effective date of termination of employment to be 26 March 2021 as set out in the letter, in order to comply with the provision of clause 16.2 it should have done one of the following. It should either have physically hand delivered the letter to the claimant on 26 February 2021 or it should have posted the letter at least two working days earlier. It did neither. Consequently, notice of termination of employment ran from 2 March 2021 and expired on 30 March 2021.[17]I now turn to the question of notice concerning holidays. On 26 March 2020, Anna Winkworth and Bruce Corrie of the respondent emailed the claimant [131-132]. The email dealt with, amongst other things, holiday arrangements during furlough. It states: With regards to holidays, this will work on a pro-rata basis so, if you are furloughed for three months, will equate to ¼ of your annual holiday entitlement. Let me know if this needs further clarification.[18]The claimant responded to the email on 27 March 2020 [131]. She confirmed that she understood all the details and appreciated their clarification on the situation.[19]On 20 April 2020, Anna Winkworth emailed the claimant and other members of the team [135]. The email stated, amongst other things: During the current situation, all employees, whether on full pay or furlough will have 2.5 days holidays deducted each month which equates to the “pro-rata” buildup of your holiday days, to ensure holidays then manageable for the business upon your return to work.[20]Regulation 15 of the Working Time Regulations 1998 (“WTR”) states: Dates on which leave is taken 15(1) A worker may take leave to which he is entitled under regulation 13(1) on such days as he may elect by giving notice to his employer in accordance with paragraph (3), subject to any requirement imposed on him by his employer under paragraph (2). (2) A worker’s employer may require the worker— (a)to take leave to which the worker is entitled under regulation 13(1); or (b)not to take such leave, on particular days, by giving notice to the worker in accordance with paragraph (3). (3) A notice under paragraph (1) or (2)— (a)may relate to all or part of the leave to which a worker is entitled in a leave year; (b)shall specify the days on which leave is or (as the case may be) is not to be taken and, where the leave on a particular day is to be in respect of only part of the day, its duration; and (c)shall be given to the employer or, as the case may be, the worker before the relevant date. (4) The relevant date, for the purposes of paragraph (3), is the date— (a)in the case of a notice under paragraph (1) or (2)(a), twice as many days in advance of the earliest day specified in the notice as the number of days or part-days to which the notice relates.[21]The Government released guidance entitled “Holiday entitlement and pay during coronavirus (COVID 19)”. The relevant parts are as follows: Taking Holiday Employers can: Require workers to take holiday…… if they give enough notice to the workers The Required notice periods are: Double the length of the holiday if the employer wishes to require a worker to take holiday on particular days… Employers can ask workers to take or cancel holiday with less notice but need the workers agreement to do so.. Furloughed Workers ...If an employer requires a worker to take holiday while on Furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time which is the fundamental purpose of holiday.”[22]Craig and ors v Transocean International Resources Ltd and ors 2009 IRLR 519, EAT illustrates that the employment contract — provided its terms are sufficiently clear — can amount to a valid regulation 15 notice by the employer specifying the days on which workers can or cannot take annual leave. The main issue in the case) was whether the statutory holiday entitlement of a group of workers employed on offshore oil rigs was capable of being satisfied by the provision of regular onshore ‘field breaks’. The EAT held that it was, and its decision was subsequently upheld by the Supreme Court in Russell and ors v Transocean International Resources Ltd and ors 2012 ICR 185, SC. However, a separate issue was whether the employers had given effective notice under regulation 15 that annual leave must be taken during field breaks or, alternatively, that it could not be taken at the times requested. On this point, the EAT observed that reg 15 does not require an employer to give notice in any particular form. Furthermore, while the notice must tell workers what days they may or may not take as leave, there is no requirement to specify dates. An employer may, for example, prohibit a worker from taking leave until after the completion of a particular project where specific dates are not yet known. By a majority, the EAT held that, in the case of three of the claimants, the employment contract itself was sufficiently clear to amount to a regulation 15 notice requiring annual leave to be taken during field breaks. Although the wording of the contracts varied, it was clear that the field breaks were free time and that, subject to training courses and other appointments, the claimants could use them as they chose. The fact that the contracts largely pre-dated the application of the Regulations to the offshore industry did not affect that conclusion.[23]Miss Nowell submitted that the claimant had not accrued holiday entitlement during the period when she was on furlough. Pursuant to WTR, regulation 15, the respondent had been required to specify when her holiday had to be taken and to give her notice at least of that period of time (i.e. twice the period of time of the holiday). The government guidance simply reiterated what was required in regulation 15. The respondent was entitled to require a furloughed worker or an employee to take holiday during the furlough period.[24]The respondent had notified the claimant on 26 March 2020 that it required her to take holidays while she was on furlough. The claimant had accepted this in her response dated 27 March 2020. This was repeated in the email of 20 April 2020. The notice of 26 March 2020 had, in Miss Nowell’s submission, given the claimant requisite notice every three months while she was on furlough. The claimant was required to take holidays accruing at 2.5 days per month which equated to 7.5 days every three months. This was to be taken at the end of the three-month period. The three-month period ended 25 June 2020. Fifteen days’ notice was required to be given to the claimant. If the claimant took her 7.5 days holiday at the end of the three-month period, notice required to be given on 10 June 2020. It had, in fact, been given 26 March 2020, well in advance.[25]Miss Nowell also submitted that Mr Guildford might argue that the respondent had not complied with WTR because it failed to specify the date on which the claimant was required to take her holiday. She said that the claimant had not sought clarification on the matter at the time and that it was clear in the email of 26 March 2020 that holiday would be treated as taken by the end of the three-month period. It might have been possible for the respondent to specify that the claimant should take them in the last seven days of the final month, but it was fairer for her to take 7.5 days at any time during the period.[26]Miss Nowell argued in the alternative that if the email of 26 March 2020 did not give the claimant the requisite notice, she had been so notified in the email of 20 April 2020. It clearly said that 2.5 holidays would be deducted each month. Holidays would be deemed to have been taken or deducted each month. This would mean that notice was only given on 20 April 2020 and would not have covered any holiday taken before then. Five days’ notice would require to be given.[27]Mr Guildford argued that on 24 March 2020, the claimant had been notified that her contract of employment had been eliminated [133] and there was discussion about how the work would continue during the furlough. The claimant had cancelled her holidays which had already been booked. There was no reason for her to take 7.5 days holiday. He said there was never any discussion about 7.5 days holidays being taken over a rolling three-month period. She had simply asked for her 11 days holiday that she had booked to be cancelled. Furthermore, the email of 26 March 2020 said nothing requiring the claimant to take holidays every month and if she had been told that, she would have questioned it. She could not have taken a proper holiday in any event because of the lockdown and her husband was a key worker. The government guidance did not come into force until May 2020.[28]This is a case where an employer purports to have issued a positive notice instructing a worker to take leave on particular days. Whilst dates have not been specified, it is reasonable to infer days have been specified. By this I mean the days on which the claimant was on furlough. The email of 26 March 2020 is not a positive notice instructing the claimant to take holiday leave. It tells the claimant that if she is furloughed over three months this will equate to ¼ of her holiday entitlement. She was not expressly instructed to take holiday. Nor do I think that such an instruction is implicit.[29]Turning to the email dated 20 April 2020, this is clearer. Employees on furlough or full pay were told that they would have 2.5 days holiday deducted each month. It is reasonable to infer from this that an employee will effectively take holiday leave 2.5 days every month whilst on furlough or full pay. Consequently, the respondent was required to give at least five days’ notice. Reasonable notice for holidays accruing after 25 April 2020 was given.[1]This preliminary hearing (PH) was listed by Employment Judge Lancaster on 11 October 2021 in order that the Tribunal could determine the employment status of the Claimant between 15 March and 31 October 2019, and whether she had two years’ continuous employment up to the effective date of determination (EDT) of 30 March 2021.[2]The Claimant’s case was that she was an employee of the Respondent at all material times within that period, and that as a result she had more than two years’ continuous employment. As a result, she contends that she was entitled to be paid a statutory redundancy payment upon termination and, in relation to her automatic unfair dismissal claims brought under ss.101A and 104 Employment Rights Act 1996, that the burden of proof should be on the Respondent in establishing the reason for dismissal.[3]The Respondent’s case is that the Claimant was no more than a casual worker during part of the period in question, and that she was not its employee at any point up until 1 November 2019. It denies that the Claimant’s engagement with the Respondent started on 15 March 2019 and was in fact later, which would also negate the necessary period of continuity. The Respondent’s case is that there is therefore no jurisdiction for the Tribunal to consider a complaint relating to a statutory redundancy payment, and that the burden of proof in relation to the reason for dismissal falls entirely on the Claimant.
Evidence
[4]In this PH I was presented with a bundle amounting to some 661 pages and was taken to some of the documents in that bundle during the course of the evidence. I heard live evidence from the Claimant on her own behalf and from Mr Bruce Corrie (Director) and Ms Anna Winkworth (General Manager) on behalf of the Respondent. All three witnesses had provided witness statements setting out their evidence in chief, and all three were cross-examined on issues relevant to the preliminary matter.
Findings of fact
[5]The Claimant is an experienced person within the hospitality industry, having worked as a waitress, a head waitress and on bar service during the course of her career.[6]The Respondent is a limited company. It runs a country house of the same name and hosts weddings and other events at that venue. It began trading in July 2019. The Respondent’s sole director is Mr Bruce Corrie and its General Manager is Ms Anna Winkworth, who was appointed into that role in December 2018.[7]The Respondent does not provide its own catering service for events. Catering services for events held at Thicket Priory are either provided by the hiring client or through the Respondent contracting any one of a number of third-party caterers. In early 2019 the Respondent had a commercial relationship for the provision of catering services with one such third party, Purple Chilli Events Catering Limited (“Purple Chilli”).[8]Although it was not clear to me exactly when she commenced her employment with Purple Chilli, it was agreed that the Claimant was in the employment of that company as at early 2019 and that her contract of employment with that company only ended quite some time later, on 23 December 2019. The Claimant agreed that whilst she was employed by Purple Chilli she received regular hours, paid holidays and that she was paid via PAYE. Indeed, following the termination of that employment she was sent a P45 and I was shown a copy of the document in the bundle (page 129).[9]The first event hosted by the Respondent at Thicket Priory was to take place on 16 March 2019, four months before the company started trading. Mr Corrie’s unchallenged evidence, which I therefore accepted, was that this event was to be a “pre-opening function for friends and family”. In cross-examination Mr Corrie stated that he had made arrangements personally with Mr Mark Rhodes, a director of Purple Chilli, in order that the latter would provide catering services for this event. Mr Corrie’s evidence was that he did not know for sure whether Purple Chilli would send the Claimant to work at Thicket Priory on 16 March, but he thought it highly likely because the Claimant’s was Purple Chilli’s head waitress and she had worked at other events in which Purple Chilli had been involved, in that capacity. Again, that evidence was unchallenged and I accepted it.[10]The Claimant attended at Thicket Priory on 15 March 2019 in order to help set up the following day’s event. In her witness statement (paragraph 3) the Claimant stated that she had been “approached by the Respondent to work for Thicket Prior direct around late February early March 2019”, and (at paragraph 5) that “After the conversation with [Ms Winkworth] we met again to discuss the role and plans going forward, I was offered employment and agreed, and started working direct for the Respondent on the 15 March 2019…”. I did not accept the Claimant’s assertions as being accurate. The Claimant accepted in crossexamination that it had in fact been Mr Rhodes of Purple Chill that had told her to attend at Thicket Priory on 15 March, and that she had had no prior discussion with either Mr Corrie or Ms Winkworth about attending that day. In fact, the Claimant conceded that she had never spoken to Ms Winkworth at all until 15 March 2019. The conversations referred to by the Claimant in paragraphs 3 and 5 could not have happened and, I find, did not happen.[11]In cross-examination the Claimant stated that it was Mr Rhodes who “recommended” she attend on 15 March but that he told her she was “going to be contracted” with the Respondent and that she “would be working for both companies under one roof”. I did not accept the Claimant’s evidence as being accurate on this issue either, for two reasons. Firstly, despite its potential significance it was not mentioned in her witness statement at all. Secondly, the Claimant had not featured in the discussion Mr Corrie had had with Mr Rhodes in making the arrangements with Purple Chilli for the provision of services on 15 and 16 March 2019, referred to above. Whilst I accepted that he and she did have a conversation about her being instructed to work at Thicket Priory on those dates, I considered it unlikely that Mr Rhodes would make any reference to the Claimant working for two companies simultaneously, as she was unequivocally an employee of Purple Chilli at that time and he was not in any position to make any statements on behalf of the Respondent. This conversation – with a director of her employer – was the only conversation the Claimant had with anyone about her attending at Thicket Priory on 15 and 16 March 2019.[12]In cross-examination the Claimant initially stated that on 15 and 16 March 2019, “the bar and the food were separate”, and it was later suggested by Mr Guildford in cross-examination that Purple Chilli only provide catering, not bar services. Mr Corrie’s answer was that Purple Chilli does provide bar services and, on this occasion, had indeed been contracted to provide catering but also a bar service. He pointed to an invoice bearing Purple Chilli’s name for that occasion (page 123B) which included catering services but also “Bar staff x 2 x 20 hours in total” with the sum of £240 plus VAT included next to it. In cross-examination the Claimant accepted that that amount referred to in that invoice referred to her and her colleague, Hayley, who had also worked on that occasion. In my judgment, Mr Corrie’s evidence is to be preferred on this issue, corroborated as it was by the invoice and the Claimant’s own concession.[13]The Claimant agreed that in relation to the 15 and 16 March 2019 engagement, she was paid by Purple Chilli and not by the Respondent. In submissions she conceded that the Respondent had had no discussion with her about who would pay her for her attendance on those dates. However, in submissions I was directed by the Claimant to a WhatsApp conversation between her and Ms Winkworth, of 24 March 2019 (page 130-A1) which, she suggested, showed that it had always been the intention that the Respondent would pay her for 15 and 16 March. Whilst this suggestion was not put in evidence, I did not accept it in any event. On any sensible reading those messages were referring to who would pay the Claimant in relation to the next period of work she would undertake at Thicket Priory (on 11 May 2019), not to a shift she had by that stage already done.[14]In my judgment, and based on my findings of fact as set out above, on 15 and 16 March 2019 the Claimant carried out work at Thicket Priory solely during the course of her employment with Purple Chilli, not through any independent or parallel engagement with the Respondent.[15]On 24 March 2019 Ms Winkworth obtained the Claimant’s contact details with the purpose of arranging for the Claimant and three other people to work some hours on the bar for a ball the Respondent intended to host on the evening of 11 May 2019, for a local Parent/Teacher Association (PTA). The PTA event was not a “formal” event as such; the Respondent merely permitted the PTA to use the premises at no charge, but agreed to provide a pay bar. The PTA organised its own catering independently. The Claimant told Ms Winkworth that she was available to work on that occasion, and that she could enlist the necessary additional staff to do the same.[16]Mr Corrie stated, and I accepted, that in advance of Ms Winkworth approaching the Claimant he had a conversation with Mr Rhodes of Purple Chilli in order to obtain his consent to the Respondent engaging the Claimant from time to time, on an ad hoc basis and for cash, in relation to events that might be hosted by the Respondent in future. He did so out of courtesy to Mr Rhodes given the continuing commercial relationship between the Respondent and Purple Chilli. It was not suggested by either party that there was an objection from Mr Rhodes.[17]At a preliminary hearing held on 31 August 2021 the Employment Tribunal (Employment Judge Green) found that the effective date of termination (EDT) of the Claimant’s employment with the Respondent was 30 March 2021. There is no reason why that date should not be treated as the “relevant date” in relation to continuity for statutory redundancy payment purposes under s.145(2)(a) Employment Rights Act 1996 either. I am bound by Employment Judge Green’s finding and mention it in order to include within the chronology of events the date by which the Claimant’s necessary qualifying period of two years began. That date is 31 March 2019.[18]The Claimant and Ms Winkworth engaged in a further WhatsApp conversation on 8 April 2019 (page 130-1A). The messages appear to show arrangements being made for the two of them to meet the next day. I was not told what the meeting of 9 April was to be about, but it was apparent from those messages that the Claimant carried out some stock-related tasks on that date. Miss Nowell conceded on behalf of the Respondent (at paragraph 9 of her skeleton argument) that the Claimant performed work for the Respondent on that occasion. I was not provided with any evidence as to how much work was carried out, or whether it was paid work.[19]The Claimant and Ms Winkworth again turned to WhatsApp on 16 April 2019 (page 130-2A), principally to make arrangements for the PTA ball on 11 May. The Claimant agreed that before this time no agreement had been reached as to how many hours she would work for the Respondent on that occasion. It is also evident from those messages that it was only during this exchange that the parties reached an agreement as to the rate of pay the Claimant would receive: £10 per hour. It was agreed that the Claimant would start work at 4pm on that evening. No other terms were agreed or reduced to writing in any other form. At no point in this exchange did the Claimant suggest that she had been employed by the Respondent since March 2019, nor did she suggest that the arrangements for 11 May 2019 were a continuation of any previous agreement. In my judgment, that was unsurprising as the Claimant knew she was employed by and working for Purple Chilli whilst working at Thicket Priory on 15 and 16 March 2019.[20]The Claimant agreed in evidence that during her discussions with Ms Winkworth around this time she was aware that the Respondent’s business was in its infancy and that at that stage it had few events planned. She also agreed that she understood that any work she might be asked to do some work for the Respondent as and when it became available.[21]Crucially, the Claimant agreed in cross-examination that she knew the agreement she had made with Ms Winkworth, on behalf of the Respondent, meant she had no obligation to accept any work she might be offered by the Respondent, and also that she knew that the Respondent was not under any obligation to offer her any work at all.[22]On 17 April 2019 Ms Winkworth sent the Claimant a list of dates showing future events to be hosted by the Respondent (page 215) up to 3 August 2019. There was nothing in that email which suggested that the Claimant was being required to work these events by the Respondent, or that any agreement that may have existed between the parties prior to this was being changed. Properly read, that document appeared to be nothing more than Ms Winkworth informing the Claimant of future events and the likely staffing numbers that would be required to service them.[23]Miss Nowell, in her skeleton argument, conceded on behalf of the Respondent that the Claimant had performed some work for the Respondent on 23 April 2019, when she met with Ms Winkworth. I was not told how much work had been carried out, what it was, whether it was paid or in what amount.[24]The Claimant attended at Thicket Priory to work an event hosted by the Respondent on 10 and 11 May 2019. The event in question involved the filming of “Made in Chelsea” by Channel 4. The Claimant agreed in evidence that Purple Chilli had been hired by the Respondent to provide catering services on that occasion, that she attended as a Purple Chilli employee in relation to that event, and that she worked as a waitress rather than on the bar. She did not contend that she was employed by the Respondent in relation to that event.[25]On the evening of 11 May 2019 the Claimant worked the PTA ball, as planned and agreed with Ms Winkworth. She was paid £10 per hour, in cash, by the Respondent. It was agreed between the parties that the Claimant also performed work for the Respondent on 16 and 17 May 2019.[26]Upon my request for clarification over the lunch adjournment the Claimant also contended that she performed work for the Respondent on 24 April, 3 and 8 June, and 2 August 2019. On behalf of the Respondent Miss Nowell could neither confirm nor deny that she had. In their statements none of the witnesses had referred to those dates as having been worked by the Claimant. I was not shown any documentary evidence that may have corroborated the Claimant’s assertion, such as arrangements being made via WhatsApp between the Claimant and Ms Winkworth. For these reasons I found on the balance of probabilities that the Claimant did not work for the Respondent on those additional occasions.[27]On 29 May 2019 Ms Winkworth messaged the Claimant on WhatsApp, enquiring as to her availability for work at 1pm on 12 June (page 220). The Claimant indicated that she “should” be available for work on that occasion. However, on 11 June the Claimant messaged Ms Winkworth informing her that because of a childcare issue she would no longer be available for work the next day. They both agreed that the work could be rearranged for a later date. The Claimant was not disciplined or dismissed in relation to this cancellation, nor (she told me) did she ever expect to be.[28]It was agreed between the parties that the Claimant also performed work for the Respondent on 3, 5 and 6 July and 3 August 2019, and that she was paid £10 per hour in cash for her time. It was apparent from the WhatsApp messages I was shown that arrangements for the Claimant to work for the Respondent on those occasions were made in the usual way between Ms Winkworth and the Claimant. There was no suggestion by either side that the basis of the Claimant working for the Respondent had changed in any way.[29]In order to be paid by the Respondent the Claimant submitted “time sheets” which set out the dates she worked and the amount of hours worked on each occasion. I was shown one such time sheet, for the July dates (page 222). She was then paid in cash.[30]On 8 August 2019 Ms Winkworth approached the Claimant about becoming a permanent employee of the Respondent, initially in a telephone call but then supplemented by WhatsApp messages around the same time (page 130-8A). The Claimant informed Ms Winkworth of her interest and her salary expectations. She made no suggestion that she already considered herself to be an employee of the Respondent. Ms Winkworth mentioned the proposal to Mr Corrie, and on 10 August indicated to the Claimant that he was in agreement with it, in principle.[31]Between 3 August and 12 September 2019 the Claimant performed no work for the Respondent at all. However, she was asked if she could work on 7 September 2019, but she declined. Ms Winkworth organised for some casual bar staff to attend on that occasion instead, through an organisation called Syft. As with 12 June 2019, there were no actual or anticipated adverse consequences for the Claimant as a result of her refusal to work on 7 September.[32]On 29 August 2019 Ms Winkworth formally made an offer of employment to the Claimant, on behalf of the Respondent, via email (page 125). The role offered was of Bar Manager. The hours were to be 40 per week with some flexibility depending on business need, the salary was to be £28,000, and there were to be 30 days’ holiday per year with one additional day for each year worked, capped at a maximum of 35 days. The intended start date was given as 6 January 2020. The Claimant replied to Ms Winkworth that same day, communicating her acceptance of the offer.[33]In her email making the offer of employment Ms Winkworth also took care to state that “Any work we do between now and January 6th will be paid using time sheets signed off at £10 per hour as discussed. We may look at some bar admin work which I think would be useful for you to be involved with during the transition to new tills and a new bar set-up ”. In her reply accepting the Bar Manager post, the Claimant made no reference to this stipulation. In my judgment, Ms Winkworth’s inclusion of this passage was intended to make it clear to the Claimant that any work she may do for the Respondent between that time and starting her employment as Bar Manager in January 2020 would be done according to the existing casual arrangement that had been known and understood by both sides from 16 April 2019. In other words, Ms Winkworth was preserving that arrangement on behalf of the Respondent and making it clear to the Claimant that in the meantime, nothing had changed.[34]Despite being invited to ask questions if she felt she needed to, in her reply the Claimant indicated no displeasure or protest in relation to this particular passage (or indeed any of the contents of Ms Winkworth’s email). The Claimant did ask Ms Winkworth if there were any particular dates she might be asked to work, which was consistent with an understanding – as I find the Claimant did have – that the existing casual arrangement would continue in the meantime. In response (page 124) Ms Winkworth indicated that she would be “in touch” about dates. That too was consistent with an understanding that the existing casual arrangement was being preserved. In my judgment, that understanding was shared by both the Claimant and the Respondent.[35]Between 12 September and 31 October 2019 the Claimant was asked to work shifts by the Respondent on a more regular basis, and she did so on 14 occasions. It is not necessary for me to record the precise dates, save that the last interval of one week or longer occurred between the shifts worked on 19 September and 8 October 2019. The only difference in the arrangements was that the Claimant would no longer be paid in cash but via BACS, direct into her bank account. In cross-examination Ms Winkworth explained that this was done because at that stage the Respondent now had the Claimant’s bank details, in anticipation of her starting as a permanent employee in the near future. She said that other than in respect of the method of payment, no changes to the casual arrangement had been made. Mr Guildford did not suggest this was wrong. I accepted Ms Winkworth’s explanation and found that the nature of the parties’ agreement had not changed.[36]At some point (although precisely when is unclear) the parties agreed that the Claimant’s start date for the Bar Manager post would be brought forward, to 1 November 2019, and that the job title would change to Operations Manager. From that date until 30 March 2020 there is no dispute that the Claimant was an employee of the Respondent. I was shown a statement of particulars dated 30 June 2020, which was signed by the Claimant and by someone on behalf of the Respondent (page 118) which confirmed that status.[37]The Claimant’s employment with Purple Chilli terminated on 23 December 2019, as recorded in her P45 (page 129). The law Employment status
The law
[38]Section 230 Employment Rights Act 1996 provides the statutory definitions of “employee” and “contract of employment” for unfair dismissal purposes. It is reproduced as follows: 230 Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.[39]In relation to casual staff like the Claimant, on the question of who meets the definition of “employee” there is no single legal test or exhaustive list of factors that are determinative, but the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 1 All ER 433 (High Court, Queen’s Bench Division) remains the starting point. Whilst describing a contract of employment (“contract of service”) and its parties (“master” and “servant”) in the language of the period, McKenna J set out three key considerations that have withstood the test of time: ''A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service.”[40]In Montgomery v Johnson Underwood Ltd [2001] IRLR 269 the Court of Appeal explained the Ready Mixed Concrete test and emphasised the Employment Tribunal’s first task: “23. Clearly as society and the nature and manner of carrying out employment continues to develop, so will the court's view of the nature and extent of 'mutual obligations' concerning the work in question and 'control' of the individual carrying it out. In the nature of things the lead in this process will be taken by employment tribunals and the EAT. They have been carefully set up and constituted to be well suited to the task. However, since the concept of the contract of employment remains central to so much legislation which sets out to adjust the rights of employers and workers, including employees, it must be desirable that a clear framework or principle is identified and kept in mind. It is inevitable that different tribunals will, from time to time, reach different conclusions on very similar facts. But unless the objectives of clarity and predictability in law are to be abandoned altogether, the principles upon which they base their decisions should be as clear as possible and adhered to. For my part, I regard the quoted passage from Ready Mixed Concrete as still the best guide and as containing the irreducible minimum by way of legal requirement for a contract of employment to exist. It permits tribunals appropriate latitude in considering the nature and extent of 'mutual obligations' in respect of the work in question and the 'control' an employer has over the individual. It does not permit those concepts to be dispensed with altogether. As several recent cases have illustrated, it directs tribunals to consider the whole picture to see whether a contract of employment emerges. It is though important that 'mutual obligation' and 'control' to a sufficient extent are first identified before looking at the whole.” (emphasis added)[41]In the case of casual employees the determination of their employment status generally focuses on the first of the essential features of an employer-employee relationship as identified in Ready Mixed Concrete and Montgomery: that of mutuality of obligation. The Claimant’s case is one of those cases. The leading authority on mutuality of obligation in the context of casual workers remains Carmichael v National Power plc [2000] IRLR 43 (House of Lords), which was referred to by Mr Guildford as well as Miss Nowell. In Carmichael, mutuality of obligation was described by Lord Irvine of Lairg, the then Lord Chancellor, as being the “irreducible minimum” quality which must be present for there to be an employment relationship (at [18]). The critical point of Carmichael is that if there is no mutuality of obligation, there can be no contract of employment at all.[42]Most of the authoritative cases concerning casual situations are heavily factspecific, but there are typically two ways in which casual staff may establish their status as that of employee. The first is where a global, or “umbrella”, contract exists between the parties. The essence of an umbrella contract is whether there exists an obligation on the employer to provide work, and an obligation on the employee to perform any work which becomes available, and whether those mutual obligations continue during the times in between periods of work (Stringfellow Restaurants Ltd v Quashie [2013] IRLR 99, Court of Appeal).[43]Examples of cases where umbrella contracts have been in issue include:3.1 Wilson v Boston Deep Sea Fisheries Ltd [1987] IRLR 232, in which the Court of Appeal found there was no mutuality of obligation in the case of trawlermen engaged by the same hirer on a voyage-by-voyage basis;3.2 O’Kelly & ors v Trusthouse Forte plc [1983] IRLR 369, in which the Court of Appeal found there was no mutuality in the case of casual wine butlers who were engaged regularly and given a preferential treatment on the rota in comparison to other casual staff; and,3.3 Clark v Oxfordshire Health Authority [1998] IRLR 125, in which the Court of Appeal found there was no umbrella contract in the case of a bank nurse who regularly undertook work but in respect of whom there was no mutuality of obligation in between her individual assignments.[44]The second avenue through which casual workers may establish employee status is where there is no umbrella contract but sufficient mutuality exists within each individual engagement. An example of this is to be found in the case of Cornwall County Council v Prater [2006] IRLR 362, where the Court of Appeal found there was sufficient mutuality in a situation where a children’s home tutor would accept assignments that would last for several months or even years, during which time there was an understanding between her and the Council that she would complete those assignments. That understanding amounted to sufficient mutuality of obligation and, for the periods of her assignments, the individual enjoyed the status of employee. Multiple employers[45]For reasons of public policy there is a general rule that an employee cannot be employed by two employers at the same time, in relation to the same work. That rule was strongly emphasised by the Employment Appeal Tribunal (EAT) in the cases of Cairns v Visteon UK Ltd [2007] IRLR 175 and, more recently, Patel v Specsavers Optical Group Ltd UKEAT/0286/18 (13 September 2019, unreported). Whilst this was not a point that either party had raised, its potential application in this case prompted me to draw the parties’ attention to it and both Mr Guildford and Miss Nowell were given a full opportunity to make submissions in relation to it.[46]In Patel Her Honour Judge Stacey (as she then was) set out the reasons behind the prohibition: “40. Unlike in the theatre, it is a well-established principle of employment law that in general terms one employee cannot simultaneously have two employers (Laugher v Pointer (1826) 5 B & C 547). The reason why the concept of dual employment has such theatrical comedic potential derives from the confusion and farcical consequences that can arise from competing and contradictory instructions being given by two employers to one employee. It was also a seam mined by Laurel and Hardy, so slapstick potential too. 43. In Cairns Judge Peter Clark went on to explore some of the practical complications that would flow from a finding of dual employment given the structure of ERA 1996. Which employer would be responsible for conducting the disciplinary hearing? In a redundancy situation upon whom would the consultation obligations fall? How would any unfair dismissal compensation be apportioned as between dual employers? Not insurmountable he concluded, but all requiring further consideration.”[47]That said, there is no public policy rule against a person having separate employers in relation to separate jobs, nor indeed against separate contracts being entered into with the same employer. That was made clear in the case of Land v West Yorkshire Metropolitan County Council [1981] ICR 334 (Court of Appeal) and was reaffirmed in both Cairns and Patel. Burden of proof in unfair dismissal claims[48]Where an employee has the necessary two years’ continuity of employment the burden of proof in establishing the sole or principal reason for dismissal falls on the employer (s.98(1) Employment Rights Act 1996). However, where the employee lacks sufficient continuity the burden of proof is on the employee to establish the automatically unfair reason as being the sole or principal reason for dismissal (Kuzel v Roche Products Ltd [2008] IRLR 530; Maund v Penwith Distric Council [1984] IRLR 24, both Court of Appeal). Continuity of service[49]Continuity of service is a statutory concept: it is not something the parties can agree upon (Collison v BBC [1998] IRLR 238, EAT). The period of continuity begins when the employee starts work (s.211(1)(a) Employment Rights Act 1996), which is the date where the employee begins work under the contract of employment (General of the Salvation Army v Dewsbury [1984] IRLR 222, EAT). That date is a question of fact for the Tribunal, but as Langstaff P (as he then was) emphasised in Koenig v The Mind Gym UKEAT/0201/12 (8 March 2013, unreported), it is work under the contract of employment that is essential; work being done for the employer is not enough. The rule in Koenig was recently reaffirmed in O'Sullivan v DSM Demolition Ltd [2020] IRLR 840, where the EAT determined that the key distinction is between work done under the contract relied upon and work not done under that contract.[50]A period of continuity is presumed to last unbroken from start to finish, unless the contrary be shown (s.210(5)). The burden is on the employer to show the contrary. However, a period of one week not “governed by a contract of employment” (ss.210(4) and 212(1)) will serve to break continuity unless an exception applies. Those exceptions rarely arise in practice and they are weeks where the employee is sick or injured (s.212(3)(a), absent because of a temporary cessation of work (s.212(3)(b), or absent but in circumstances where, by arrangement or custom, the employee is regarded as continuing in the employment (s.212(3)(c)).[51]For statutory redundancy payment purposes, “an employee does not have any right to a redundancy payment unless he has been continuously employed for a period of not less than two years ending with the relevant date” (s.155). In the case of an employee dismissed with at least the appropriate statutory notice – as this Claimant was – the “relevant date” is the date the notice expired (s.145(2)(a); Thompson v GEC Avionics Ltd [1991] IRLR 488, EAT. The parties’ submissions[52]For the Claimant, Mr Guildford put the matter of employment status in straightforward terms: his daughter worked shifts for the Respondent and was paid by it. Those agreed facts, he submitted, were enough to create an employment relationship between them and bring the Claimant within the statutory definition of “employee” as provided for under s.230(1) Employment Rights Act 1996, at all times since 15 March 2019. Going further, Mr Guildford submitted that the sheer number of shifts the Claimant worked (43, he said) and WhatsApp messages she received (600, he said), was confirmatory of employment status.[53]On the multiple employers point (Patel/Cairns) Mr Guildford submitted that the fact that the Claimant was employed by Purple Chilli had no impact upon whether she was also an employee of the Respondent. He said that his daughter had only told the truth about her relationship with the Respondent and, as a result, it was clear that that was one of employer and employee.[54]Despite having received a copy of Miss Nowell’s skeleton argument and given a full opportunity to comment, Mr Guildford made no submission in respect of the break of continuity point.[55]For the Respondent, Miss Nowell relied upon a skeleton argument supplemented by oral submissions. In summary, she argued that there was, on the Claimant’s own admission in evidence, no mutuality of obligation (Carmichael) at any stage in the period 15 March to 1 November 2019. The event of 15 and 16 March 2019 was not work carried out or paid for by the Respondent, but for and by Purple Chilli. Her secondary argument was that the height of the Claimant’s case could be that she carried out work and was paid by the Respondent on 11 May 2019 at the earliest, and that as a consequence she could not establish two years’ continuity as an employee from that date because it occurred less than two years prior to her EDT, of 30 March 2021.[56]On the multiple employers issue, Miss Nowell submitted that for public policy reasons the Claimant could not be deemed to be employed by the Respondent as at 15 and 16 March 2019, as she was on that occasion employed by Purple Chilli. She did, however, accept that the same point would not apply to any other shifts because in relation to those the Claimant was attending work independently and not in relation to the same work as Purple Chilli were carrying out.[57]As to continuity of service, Miss Nowell submitted that there were several examples of periods of more than one week in between shifts, throughout the Claimant’s engagement but principally in the period 3 August to 12 September 2019. Unless the Claimant could prove mutuality of obligations, and thus an umbrella contract, across the whole period she would fall short of establishing two years’ continuous service on account of these breaks. Analysis Employment status
Analysis
[58]In my judgment, the Claimant was not an employee of the Respondent on 15 and 16 March 2019. In relation to that event I have made a finding (at paragraph 14) that she was an employee of Purple Chilli. The Claimant knew that she was an employee of Purple Chilli at the time, and the alleged prior agreement with the Respondent she referred to within her witness statement not only did not happen but could not have happened. On the evidence before me, the conclusion that the Respondent was not her employer on that occasion was inescapable.[59]As a consequence, the circumstances surrounding the event of 15 and 16 March 2019 would fall squarely within the rule against having multiple employers, as emphasised in Patel and Cairns. The work being carried out by the Claimant on that occasion was the same work as being carried out by Purple Chilli; it was not work being carried out by the Claimant independently of that being carried out by Purple Chilli. It was different to the situation on 11 May 2019, where the Claimant did work at Thicket Priory for different entities doing different work: she worked for Purple Chilli during the “Made in Chelsea” filming but for the Respondent during the PTA ball the same evening (see paragraphs 24 and 25). There was no reason advanced as to why I should then go on to impute an employment relationship between the Claimant and the Respondent at this time.[60]For completeness, the situation in March was also not a Land-type situation, where multiple contracts were entered into with the same employer.[61]It was then necessary for me to determine whether the Claimant was an employee of the Respondent from any future point (i.e. from 17 March 2019) up to 1 November 2019, when she commenced what both parties agreed was her employment with the Respondent, as Operations Manager. In my judgment, the Claimant fell well short of establishing that she was an employee across that period. I shall set out my reasons for reaching that conclusion below.[62]I considered first whether the Claimant enjoyed a Carmichael-type umbrella contract at any time after 17 March 2019. As I have set out above, this is the first avenue by which a casual worker may establish employment status within the meaning of s.230 Employment Rights Act 1996.[63]Whilst Mr Guildford did his best to put forward his daughter’s case, his submission that to become an employee one simply had to perform work for someone and be paid by them could not be sustained. Ready Mixed Concrete, Montgomery and Carmichael (amongst many other authoritative cases) have all made it clear that the situation is not as straightforward as that. If it were correct and I accepted Mr Guildford’s point, I would certainly fall into error as it would mean the question of mutuality of obligation – described as the “irreducible minimum” in Carmichael – could simply be sidestepped. It cannot be sidestepped: mutuality of obligation is fundamental, and I am bound by the House of Lords in any event.[64]In my judgment, Miss Nowell was right to submit that my focus must be on whether that “irreducible minimum” existed in this case. On her own admission, the Claimant knew the agreement she had made with the Respondent meant she had no obligation to accept any work she might be offered, and also that she knew that the Respondent was not under any obligation to offer her any work at all (see paragraph 21). Those candid admissions are, in my judgment, determinative. As a result of them, the Claimant had no prospect of establishing that the Carmichael “irreducible minimum” existed in the period with which I am concerned, and it follows that she had no prospect of establishing that she was an employee across the whole of that period either.[65]If I am found to be wrong about treating those admissions as determinative of the issue, I nevertheless went on to determine whether an umbrella contract could be said to have arisen through the arrangements agreed upon between the Claimant and the Respondent and in reality.[66]Whilst it is of course accurate that a contract existed between the parties during those times the Claimant was working for the Respondent – with an obligation on the Claimant to do the work and an obligation on the Respondent to pay her for doing it – that would not necessarily mean that the Claimant was an employee of the Respondent during each shift she worked. Even if she was, as both Carmichael and Quashie make clear, the critical issue is whether could be said to have been an employment relationship across the period 17 March to 1 November 2019 unless there could be said to have existed an umbrella contract, preserving an employment relationship in between periods of work.[67]Therefore, without making any express finding as to whether the Claimant was an employee of the Respondent during the individual shifts she worked (for reasons I shall provide under the Continuity of employment section, below), I nevertheless considered whether an umbrella contract existed on the facts of this case, working on that assumption.[68]The parties’ agreement as to their relationship was only reached on 16 April 2019 (see paragraph 19), so no umbrella contract could have arisen before that point.[69]The agreement from 16 April 2019 onwards was an ad hoc arrangement where, in practice, an enquiry would be made as to whether the Claimant was available for work, and if she was, she could choose whether to accept that work or not. If she worked, she would be paid £10 per hour in cash for the hours worked. There were, both in June and in September 2019 (see paragraphs 27 and 31), times when the Claimant exercised her right to decline work but no adverse consequence followed for her on either occasion. Save for the method of payment (cash to BACS transfer; see paragraph 35) the arrangement did not change between 16 April and the Claimant commencing the Operations Manager role on 1 November 2019.[70]The agreement was, in my judgment, a classic example of a casual work arrangement where no mutuality of obligation arose from the agreement itself or the way the arrangement worked in practice. From 11 May 2019 the Claimant worked occasional shifts as and when required, and at first these were highly sporadic. They only became less occasional from September 2019 onwards (see paragraph 35). In my judgment, neither the 16 April agreement nor the ways the parties dealt with each other in reality gave rise to any obligations in between individual engagements.[71]Whilst I use it merely as an illustrative example, that situation was very different from the Prater case where the assignments were sometimes very lengthy indeed and of themselves generated sufficient mutuality. Again by way of example, even though the Claimant’s situation was factually more akin to the O’Kelly wine butlers’ case, she did not enjoy the kind of preferential treatment or regularity of shift that the wine butlers enjoyed, on the facts of that case.[72]For these reasons, in my judgment there was no umbrella contract in existence at any material time between 16 April and 1 November 2019.[73]For reasons that shall follow, it has not been necessary for me to go on to determine the second avenue available to casual workers in establishing employment status, i.e. whether the Claimant was an employee during any particular shift she worked (the Prater question). Continuity of service[74]On the basis of my finding at paragraph 18, the first time the Claimant performed any work for the Respondent was 9 April 2019. Following Dewsbury, Koenig and O’Sullivan, and proceeding on the assumption that that shift amounted to the Claimant starting work under a contract of employment, in order to acquire the necessary qualifying period of two years’ continuous employment the Claimant had to have entered into a contract of employment with the Respondent no later than 31 March 2019. 9 April 2019 would have been too late. It follows that she has not established sufficient qualifying service.[75]Even if I am wrong in my finding about the event of 15 and 16 March 2019, any continuity of service the Claimant would otherwise have enjoyed would have been broken under s.210(4) because of the period of greater than one week that existed between these dates and the shift of 9 April 2019. Any gap in between shifts of longer than a week would have the effect of breaking continuity. Based on my finding at paragraph 35, the Claimant’s continuity of service would have been broken a week after 19 September 2019, and started again from her shift on 8 October 2019. Again proceeding on the assumption that those shifts amounted to individual periods of “employment”, the result would still be that the Claimant would lack qualifying service in any event.
Conclusion
[76]For all of the above reasons, the Tribunal’s judgment is that the Claimant did not have the necessary two years’ continuous employment in order to claim a statutory redundancy payment. That claim is therefore dismissed.[77]Furthermore, the Tribunal’s judgment is that at the full hearing of this matter the burden of proof in establishing an automatically unfair reason as the sole or principal reason for dismissal shall be on the Claimant, as per the rule in Kuzel and Maund.[78]Case management orders have been made separately in relation to the surviving claims.
The hearing
[79]EJ Green has already determined that the email from Ms Winkworth of 26 March was not sufficient to require the claimant to take her holidays during furlough.[80]The claimant asserts that despite these arrangements, she undertook work for the respondent in the first three months of furlough. She has provided emails set out at pages 294 – 310 of the bundle covering the period from 6 April 2020 to 16 June 2020. The emails are between Ms Winkworth he claimant and other employees. It is clear, in my view, that the claimant was undertaking work for the respondent during this period and that Ms Winkworth knew of that and appears to have approved of it. There are emails dated 15 April and 22 April 2020 from Ms Winkworth headed ‘team meeting notes’ and these set out a list of work recently done or to be done by the claimant.[81]Mr Corrie was unable to give any satisfactory explanation about these emails and I find, on the balance of probabilities, that in April 2020 the claimant was undertaking work for the respondent with the approval of Ms Winkworth. In her witness statement the claimant said that in the months of April, May and June 2020 she undertook 32.5, 30.5 and 22 hours of work respectively. This is a modest assessment, I prefer the claimant’s evidence and find that she did undertake that work.[82]On 20 April 2020, Ms Winkworth emailed the claimant about taking holiday. EJ Green has made findings about that which are discussed above.[83]From 1 July 2020, the government introduced a flexible furlough scheme which allowed employees to do some paid work and receive a CJRS top up for a further proportion of non-working time.[84]Mr Corrie sets out in his witness statement a chronology of the flexible furlough arrangements as in the table below. Except as specified below, the claimant received 100% of her salary for each month comprised of wages for worked hours and topped up with a combination of CJRS funding and money from the respondent. 1/7/20 – 31/8/20 Claimant working one 8 hour day per week totalling 40 hours in July (5 Wednesdays) and 32 hours in August (4 Wednesdays). 1/9/20 – 30/9/20 Claimant working one 8 hour day per week excluding one week off for school holidays. This totalled 32 hours 1/10/20 – 5/11/20 Claimant working one 8 hour day per week totalling 32 hours in October 5/11/20 – 2/12/20 Claimant did not work and was fully furloughed 2/12/20 – 31/12/20 Claimant working one 8 hour day per week totalling 32 hours for December 1/1/21 – 14/1/21 Claimant working one 8 hour day per week totalling16 hours 14/1/21 – 26/2/21 Claimant did not work and at this time and received 80% of her wages plus payment for holidays.[85]The claimant’s stated hours of work in this period are: July 41 hours August 40 hours September 32 hours October 90 hours November 167 hours December 50 Hours January 21 28 hours[86]There is a selection of emails from November 2020 between the claimant, Ms Winkworth, Mr Corrie and others discussing the work the claimant has been doing, This includes invitations to staff meetings, the claimant discussing a manual she has been creating and other matters. These emails are on different days throughout the weeks and a meeting is arranged for another day.[87]On the balance of probabilities, while I accept Mr Corrie’s evidence about the Furlough payment arrangements – and it was not disputed that the claimant continued to receive 100% until January 21 – I find that the claimant was working for more than 8 hours each week. However, in oral evidence the claimant agreed that she was not told to work excess hours but that she chose to work excess hours to complete, for example, the manual as she presumed it would benefit the business.[88]It is also clear from the tone of the emails I have seen that the claimant remained engaged with and enthusiastic about the respondent’s business. I find, therefore, on the balance of probabilities that the claimant chose to do extra work in the period from July 2020 to January 2021 in excess of one day per week. It may be that the work that the respondent allocated to the claimant was not reasonably capable of being done in one day per week, but that argument was not made and in any event I saw no evidence of the claimant telling the respondent that at the time.[89]In October 2020, the respondent dismissed another of its employees ostensibly for redundancy. Mr Corrie said in oral evidence that he made that employee redundant in October 2020 to make savings. At the same time he reduced the building cleaning, reduced IT expenditure and refuse collection and took steps to save money by turning off or down lights and heating. He sad that the top up on the furlough payments was a further saving the respondent would have to start looking ta by October 2020.[90]The claimant said that that redundancy was not genuine, but she did not say why. By this time weddings and social activities had been severely restricted because of covid. Since March 2020 to October 2020 there had been one small wedding and one other event at the respondent’s venue. I prefer the evidence of Mr Corrie about this and find that he was seeking to make savings by October 2020 because the venue had had little or no income in the preceding 6 or 7 months. I cannot make any findings as to whether or not the dismissal of the other employee was a redundancy within the strict legal definition, but I do find that Mr Corrie genuinely believed that the dismissal was because of the reduced financial circumstances of the respondent.[91]On 2 December 2020, the claimant had a conversation with Ms Winkworth about the arrangements in future and that was confirmed in an email of 3 December 2020. It said: “December: - Working one day full pay, Furlough 4 days, 80% covered by the Government, 20% top up & NI/Pension covered by Thicket Priory January – March - As of January the top up will no longer be offered by Thicket Priory, this of course will be reviewed depending on the business form January onwards Working 1 day Full Pay, Furlough 4 days 80% covered by the government NI/Pension covered by Thicket Priory”[92]The next day the claimant replied saying “Thank you for the confirmation of the furlough Plan. Hopefully it won't be for much longer, I'm Sure I can see the light now :)”[93]I find therefore that on 4 December 2020 the claimant agreed that from January the arrangements would be that she would do one day a week work and be paid 80% of her wages for the other 4 days. At that point, the furlough scheme and lockdown restrictions were continuing to change regularly and there was a degree of uncertainty about what would happen.[94]The next relevant event to consider is Christmas 2020. Neither the claimant nor Mr Corrie was clear about the dates that the venue was open over Christmas 2020. Both seemed to agree it was open at some point, but neither could say when. This is relevant to the claimant’s holiday pay claim. The claimant’s contract makes provision for potential mandatory holiday at Christmas. What is clear, and I find, is that the claimant was not directed to take any particular days as holiday[95]In January 2021 there continued to be further government announcements and proposals. As can be seen above, the claimant in fact remained on 100% pay until the middle of January 2021. On 14 January 2021, Ms Winkworth emailed the claimant as follows (as far as relevant): “Following a review of the latest updates and information; from the Iockdown, to the registration office update and the business budget, the decision has been made to fully furlough you between now and the end of March 2021, with a review at the beginning of March as to the plans for April. During this furlough period there are no work requirements. Tasks including Pinterest, posting the blogs to google and the database capture will all be taken care of… Your furlough will be based on your contracted days, i.e. 5 days furloughed where you will receive 80% of your pay as per the furlough scheme which is in place for businesses which are unable to open”[96]The claimant responded to that email on 15 January 2021 and said, again as far as is relevant, “Obviously, these- are uncertain times for many and I accept your decision to move from Flexi-Furlough to Full Furlough, I really appreciated the opportunity you have given me by making the best of this difficult situation. and allowing me to be involved in other parts of the business. which I'm sure wouldn't have been possible in normal circumstances… The recent business decision to halt all my work requirements and reduce our communications is a struggle for me to understand. My current way of working has been in place since March last year and continued up until yesterday. You have explained that your decision is not a reflection of my work, my continued effort or my future with the business which is reassuring to hear. After you have reviewed the finances this week and possibly recognised the business may be facing financial difficulties you have come to this decision, but it has no financial advantage to the business and potentially puts a further burden on the business”.[97]The claimant then sets out her understanding of the respondent’s financial position and confirms that she does not disagree with the decision to take advantage of the CJRS.[98]I find, from this exchange of emails, that the claimant agreed to the proposal that she do no work and continue to receive only 80% of her salary until 31 March 2021. I also find that the claimant was aware at this point that the respondent believed it was experiencing financial difficulties. The claimant agreed that she was not required by the respondent to do any work from January 2021 until the end of her employment.[99]At the end of January 2021 the claimant sent an email to Ms Winkworth. The copy is undated but the claimant’s date of 29 January 2021 was not disputed. It is necessary to set out the whole email: “I've received January: payslip and after carefully looking over ii I have a few question 1 The ‘Furlough pay’ has changed from what I have had on my payslip over the last year. As I never sent you over my hours from the beginning of January as was discussed, due to all the conflict and changes, I presumed I was going to be on full 80% furlough from the beginning of the month like I was in December. So, I was just wondering why the gross pay was different? 2 The "monthly pay" I would have expected to be £0 as this was normally where the 20% top up was but there’s a small random figure- what is this? 3 l have noticed that my holiday allowance has gone down 2.5 days every month and I've not had any holiday notice or payment As you are aware Statutory annual leave can be rolled over for up to 2 years if it cannot be taken because of the current situation The Working Time (Coronavirus) (Amendment) Regulations 2020 were brought in at the end of March 2020 to amend the Working Time Regulations 1998 as to enable employees to carry over any untaken leave into the next year where it has not been taken due to the Coronavirus pandemic. I am happy to carry them over as I am entitled to if that benefits the business? Or can I use them as paid holidays and that will contributed to my short fall. As we have not agreed anything yet I just felt we should have something down in writing to ensure we are all clear what has been agreed by both parties”[100]The claimant agreed in oral evidence that this was the first time she had raised anything about holiday deductions with Ms Winkworth and that this was after the decision to put her on full furlough (without top up) had been made. The claimant said she had had conversations with other staff and I conclude she means about the holiday deductions.[101]I find that in this email, the claimant is not asserting that the respondent has done anything wrong. The claimant is asking for clarification of the position about her pay and holidays and making a suggestion to remedy what she perceives to be a problem with her paid holiday entitlement.[102]The claimant followed up this email on 2 February 2021 suggesting some dates she could take as holiday. The claimant agreed that she was not asserting in this email that the respondent had done anything wrong – she was again trying to request a way forward.[103]Ms Winkworth replied to the emails on 3 February 2021. She acknowledged that there had been a mistake with the claimant’s pay and confirmed that an additional payment of £215.38 (gross) would be made to rectify that. No complaint is made about that.[104]Ms Winkworth also noted that the claimant had been underpaid holiday pay by 85 pence and agreed to pay that. In respect of the claimant’s query about deductions form holiday, Ms Winkworth said: “3 Your holiday allowance has been going down each month, calculated pro-rate for your accrued holidays, as confirmed in writing with you at the beginning of furlough, email dated 26th March 2020: "With regards to holidays, this will work on a pro-rata basis so, if you are furloughed for 3 months, will equate to ¼ of your annual holiday entitlement”. In a responding email from yourself on 27th March your reply was ”I think the offer is fair and reasonable."”[105]I have already referred to the findings of EJ Green about the email of 26 March and the subsequent holiday deductions.[106]The email concluded “With regards to holidays going forward to February and March these will be as per the original agreement made at the beginning of the pandemic Given the current circumstances of the business and your being fully furloughed from working, at present, any reviews will be discussed when circumstances change”[107]On 5 February 2021, the claimant sent Ms Winkworth a long email about her holiday entitlement during furlough. The claimant explained that in her view she had not taken any holiday since lockdown began and nor had any been agreed. She said, specifically, that the email of 26 March 2020 did not amount to adequate employer’s notice to take holidays as it did not specify any days or dates that holidays must be taken.[108]The claimant described her email as including recommendations, and she referred to being given advice by the respondent about her holidays. She said: “I trust taking the above into account we can now put this to bed as its becoming a major disruption to all the team as not only does this effect my position but It effects all the teams positions. My recommendation Anna is to weigh up what you are trying to achieve and what your concerns are about paying staff holidays verses the legal risks of frustrating everyone but also keeping in mind the commercial risk and cost, reputation risk and risk in terms of future relations with staff before making a decision”.[109]The claimant concludes “Please take my comments in the spirit it‘s intended. If everyone just sits back and pats each other on the back the business will struggle to survive, so please take my comments as a real concern and not a witch hunt”.[110]On 8 February 2021, Ms Winkworth forwarded that email to Mr Corrie at his request together with a chronology of events that broadly reflects the facts set out above. The email includes the following comments: “...you then have the latest email will Sarah’s latest queries/ challenges / demands. Something I must add, I find it amazing that in the same email Sarah has laid out the amount of money we have voluntarily committed to topping her up which is over £6,000, then demand to be paid for holiday, which she has been paid for as this is part of your monthly salary. Technically if she wanted to carry a whole years’ worth of holiday into the next calendar year she would owe us money! Furthermore taking advantage of a scheme the government brought in for carrying holiday for those working on the front line, saving lives therefore unable to take all their annual leave, not someone who is furloughed and being topped-up to do nothing, and at the same time still sending her child to school, which again is meant to be in place for front line workers, I find a little hard to believe. Link to government guidelines with regards to the fact that the holiday roll over was put in place for health care and supermarket workers… Obviously It goes Without saying that I hope it will be that Sarah is not entitled to any of the items she has Mentioned in her email and I must say that I feel Sarah is definitely not showing any support for the business, you, the team or the industry at this stage”[111]Mr Corrie wrote to the claimant on the same day saying that he would be dealing with the matter going forward.[112]The claimant relies on the email from Ms Winkworth to Mr Corrie as evidence that the respondent was aware of the infringement that the claimant was asserting. I agree. The email that the claimant sent on 5 February 2021 does assert that the claimant believes that the scheme implemented by the respondent up to that point was not in accordance with the Working Time Regulations 1998. However, I also find that the comments of Ms Winkworth, while perhaps intemperate do reflect a genuine belief that if the claimant was right, she would be entitled to something – whether holiday or payment. That is reflected in the comment “I hope it will be that Sarah is not entitled…”. If Ms Winkworth did not consider that the claimant would get from the respondent her full legal entitlement were it established she had not done so thus far, she would have no need to express that hope. This view is supported by the fact that the respondent very promptly corrected the claimant’s wages and holiday payments, as referred to above, on a complaint.[113]On 10 February 2021, Mr Corrie provided a full and detailed response to the claimant explaining the respondent’s position that it was entitled to compel staff to take holidays in furlough and referring to the email of 20 April 2020. He refers to the previous salary/holiday correction and says that the claimant has had her full pay including holiday pay during 2020.[114]On 16 February 2021, the claimant sent Mr Corrie a further long letter disputing Mr Corrie’s email in so far as it related to holiday and holiday pay. In that letter, the claimant did also acknowledge that she was originally offered her job on a salary of £28,000 subject to review in the first year.[115]Mr Corrie replied on 17 February 2021 effectively stating that he was not prepared to discuss the matter about holidays further, having set out his view previously. He also said, in respect of January pay, that “I can only see that 2 days was authorised and worked and we are paying these. I cannot see any evidence that 28 hours was authorised, we will not be paying additional unauthorised hours” which adds further weight to my conclusions that any additional hours the claimant was working during flexi-furlough were as a result of her own decision to do so.[116]On the same day, 17 February 2021, Mr Corrie wrote to the claimant to tell her that her job was potentially at risk of redundancy. Mr Corrie said that in February he had to review the ongoing costs to the respondent of continuing to keep employees on furlough and what would happen if the furlough scheme came to an end in March 2021.[117]Mr Corrie’s evidence, which I accept, was that the business had no weddings until June 2021 except for one small one with 15 gusts in around April 2021. Mr Corrie’s evidence, which I accept, was that he believed at that time the furlough scheme would come to an end in March 2021 and he had very few events booked in for the year.[118]I heard a great deal of evidence about the respondent’s accounts and what they meant. Mr Guildford sought to demonstrate that the accounts were misleading or showed that in fact the respondent had significant capital reserves or income form deposits. I am not going to rehearse all that evidence, but I find that I prefer Mr Corrie’s evidence about the financial state of the business at the time: that the future was uncertain and that they had very few, if any, weddings booked in. It was Mr Corrie’s business and he relied on professional accountants t prepare his accounts. He was best placed to understand the profitability and future of his business and I have no reason to consider that he was dishonestly representing the state of his business.[119]There was a consultation meeting between the claimant and Mr Corrie on 24 February 2021. In that meeting. Mr Corrie explained that the business had lost between £1m and £1.5m. He confirmed that another member of staff was also at risk of redundancy. The claimant was accompanied by her father at that meeting and he expressed the view there that it was not a genuine redundancy situation but that it was to disguise a dismissal because of the claimant raising issues about holiday pay.[120]On 26 February 2021, Mr Corrie wrote to the claimant confirming that he had decided to dismiss her on notice expiring on 26 March 2021 because there was no alternative work for her to do. EJ Smith has already made a decision about the date on which the claimant’s employment actually terminated.[121]The dismissal letter offered the right of appeal which the claimant exercised on 12 March 2021. The basis of the appeal was, as before the tribunal, that the real reason for the claimant’s dismissal was that she raised a complaint about her holiday pay.[122]The appeal was heard by a director of a different company known to Mr Corrie on 23 March 2021 and Mr Guildford provided further written submissions on 25 March 2021. The appeal was refused in an email dated 6 April 2021.[123]The claimant received a final payment at the end of March 2021 and the payslip records that she received the following gross amounts:a. Monthly pay £466.67b. Furlough pay £1866.66c. Additional pay £30.75 (for pay in January and February 2021)d. Total £2364.08[124]This payment was for the month ending 31 March 2021. The claimant therefore received a payment of £2333.33 gross for March 2021. Law and conclusions Unauthorised deductions from wages[125]The claimant is making a number of claims of unauthorised deductions from wages.[126]Firstly, she says that her salary ought to have been £30,000 rather than £28,000.[127]Secondly, that in February and March 2021, she ought to have been paid 100% of her salary rather than 80%[128]Thirdly, the claimant says that she ought to have been paid for the work she did in furlough in excess of what she was supposed to do in furlough over and above her salary.[129]In respect of unauthorised deductions from wages, an employer is not permitted to make deductions from a worker’s wages unless it is authorised in statute or by the worker either in writing before the deduction or as part of the contract. (S 13 Employment Rights Act 1996).[130]It is not disputed that the sums in question would fall within the definition of wages under section 27 Employment Rights Act 1996 and nor is it alleged that the claimant authorised the deductions in anyway. The only issue in dispute is whether the claimant had the entitlement to those sums or not. The tribunal is empowered to determine the claimant’s contractual entitlement for the purposes of deciding whether there has been a deduction under s 13.[131]In respect of the amount of the claimant’s wages, the claimant’s contract and correspondence is clear that her salary was agreed as being £28,000. It is apparent from the communication and the contract that a pay review would be done, but it was not. Whether or not the failure to conduct the pay review was wrong it did not happen so that the claimant’s contractual entitlement to wages remained as £28,000. The claim is not one for breach of contract for failing to conduct a review and the tribunal does not have the power to make an award for unauthorised deductions from wages on the basis of a “loss of chance”.[132]For these reasons, this claim is unsuccessful.[133]In respect of payments in February and March 2021, firstly, in March 2021 the claimant was paid her full salary. There is therefore no deduction.[134]In February, the claimant was paid 80% of her wages. However, I find that she agreed in her communication on 4 December 2020 and 15 January 2021 with the respondent’s proposals to stop topping up furlough. Specifically, she says “I accept your decision to move from Flexi-Furlough to Full Furlough”. This was in response to communication that included a statement that the top up would cease. This had the effect of the claimant agreeing to receive 80% of her wages in return for not having to do any work and this is sufficient, in my judgment, to amount to a variation of the claimant’s contract. The claimant was therefore only contractually entitled to 80% of her wage of £28,000 and that is what she received. To the extent that it is claimed, this also applies to 15 – 31 January 2021.[135]This claim also therefore fails.[136]In respect of the third issue, the claimant confirmed in evidence that in respect of the period of flexi-furlough (from 1 July 2020) the claimant chose to work additional hours over those that the respondent allocated her. She was not required to do any more than one day a week work and this was explicitly reflected in the arrangements she had agreed and her pay. For this reason, this part of the claim fails. In any event, there is no contractual term that the claimant has been able to point to that provides that the claimant would be paid additional pay for work done in excess of the one day a week in flexi-furlough.[137]In respect of the period from March to June 2020, this claim is substantially out of time. If it was the case that the claimant had a deduction from her wages for this period, the last deduction was at the end of June 2020. The claimant did not bring her claim until 14 June 2021. The time limit is three months plus early conciliation which lasted 6 weeks. The claim is very substantially out of time. I can extend time if it was not reasonably practicable for the claimant to bring the claim in time and the claim was brought within a reasonable period, but I have heard no evidence to suggest that it was not reasonably practicable for then claimant to bring the claim. I therefore refuse to extend time.[138]In any event, however, I have heard no evidence that would demonstrate that there was a term of the claimant’s contact as varied by the furlough arrangements to the effect that the claimant would be paid for work done outside the 100% furlough arrangements in March – June 2020. In my view the claimant had no genuine belief that there was such a term at the time or she would have raised it earlier. The claimant has demonstrated a willingness and ability to raise detailed and technical points clearly and assertively., The fact that she did not do so demonstrates that she did not consider there was such a contractual term.[139]If neither the claimant or respondent believed there was such a term, this is very good evidence, in my view, that no such term existed. For these reasons this part of the claim also fails. Notice pay/breach of contract[140]An employee is entitled to the greater notice between that which is set out in their contract of employment and the statutory provisions in section 86 Employment Rights Act 1996. The statutory minimum notice is one week for an employee who has less than two years’ service. EJ Smith determined that the claimant’s employment ran from 1 November 2019 to 30 March 2021. This is one year and 5 months. The statutory minimum notice the claimant would be entitled to was one week.[141]EJ Green held in his judgment of 31 August 2021 that the claimant was entitled to 4 weeks notice and her employment terminated on 30 March 2021 and that the claimant was given 4 weeks’ notice from 2 March 2021 to 30 March 2021.[142]I have found that the claimant was paid £2333.33 gross for March 2021 up to and including 31 March 2021. This is 1/12 of £28,000, the claimant’s salary. The claimant was therefore paid in full for her period of notice and her claim of wrongful dismissal /breach of contract is unsuccessful. Holiday pay[143]EJ Green has, as discussed above, already determined that the respondent gave notice that the claimant was to take 2.5 days holiday per month from 25 April to the end of furlough.[144]In my judgment, furlough continued until the end of the claimant’s employment. Although the claimant received her full pay during her notice period, the arrangement whereby the claimant was paid but not required to work in accordance with the CJRS continued from March 2020 until 30 March 2021. There were periods when the claimant did some work under the flexi furlough scheme as allowed under the CJRS, but these periods were still periods of furlough.[145]I therefore find, in accordance with the judgment of EJ Green, that the claimant took 2.5 days holiday per month from April 2002 to March 2021 inclusive.[146]The claimant’s holiday year, as recorded in her contract of June 2020, runs from 1 April to 31 March. It provides that holiday not taken will not be carried over.[147]The Working Time Regulations 1998 provide for a minimum of 5.6 weeks holiday per year. For a person working 5 days per week, this is 28 days per year. The claimant’s contractual entitlement was greater than this, being 30 days per year.[148]Regulation 14 of the Working Time Regulations 1998 provides that a payment in lieu of untaken holiday calculated on a pro rata basis must be paid on termination of employment.[149]It has been decided that, effectively, the claimant took 2.5 days holiday each month from 5 days after the notice on 20 April 2020. This means that for the holiday year April 2020 to March 2021, the claimant took 12 x 2.5 days which is 30 days.[150]There is no evidence that the claimant took or was instructed to take any additional holiday at Christmas 2020. The claimant’s employment ended, effectively, at the end of her holiday year. This means that she was entitled to take a minimum of 28 days holiday under the Working Time Regulations and she took, and was paid for 30 days. She therefore had no holiday outstanding under the Working Time Regulations 1998.[151]However, clause 15.4 of the claimant’s contract of employment provides that the claimant is entitled to be paid on the same pro rata basis for her contractual holiday. The claimant is therefore entitled to be paid one day holiday in lieu of her untaken leave for the leave year 2020/2021.[152]There is no basis on which the claimant has shown that she had carried forward leave from a previous year and the claimant’s contract is clear that leave will not be carried forward as a matter of course.[153]The claimant’s claim for unpaid holiday was also put as an unauthorised deduction from wages claim. Unpaid holiday pay is included in the definition of wages under s 27 Employment Rights Act 1996 and the claimant’s claim is therefore successful to the extent that she is entitled to one day’s pay in lieu of untaken holiday.[154]I have sufficient information about the claimant’s salary to determine remedy on this point and it is not proportionate to list the case for a further hearing to determine this.[155]The respondent had previously indicated that pay accrued on a working day basis. Therefore, a day’s pay is £28,000/260 which is £107.69. The respondent is therefore ordered to pay the claimant the sum of £107.69. Unfair dismissal[156]The claimant brings claims of automatically unfair dismissal under ss 101A and 104 Employment Rights Act 1996. They provide respectively: 101A Working time cases [[(1)] An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—(a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998,(b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,(c) failed to sign a workforce agreement for the purposes of those Regulations, or to enter into, or agree to vary or extend, any other agreement with his employer which is provided for in those Regulations, or(d) being— (i) a representative of members of the workforce for the purposes of Schedule 1 to those Regulations, or (ii) a candidate in an election in which any person elected will, on being elected, be such a representative, performed (or proposed to perform) any functions or activities as such a representative or candidate. 104 Assertion of statutory right (1) An employee who is dismissed shall be regarded for the purposes of this Part as 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. (2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith (3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was. (4) The following are relevant statutory rights for the purposes of this section (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an [employment tribunal], (b) the right conferred by section 86 of this Act, . . . (c) the rights conferred by sections 68, 86, [145A, 145B,] 146, 168, [168A,] 169 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (deductions from pay, union activities and time off) [. . . [(d) the rights conferred by the Working Time Regulations 1998, [[the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (SI 2018/58)],] the Merchant Shipping (Working Time: Inland Waterway) Regulations 2003][, the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Cross-border Railway Services (Working Time) Regulations 2008]][, and(e) the rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006]. [(5) In this section any reference to an employer includes, where the right in question is conferred by section 63A, the principal (within the meaning of section 63A(3)).][157]As the claimant has less than 2 years continuous service, the burden is on the claimant to prove that the sole or principle reason for dismissal was either because she refused (or proposed to refuse) to forgo a right conferred on her by the Working Time Regulations or that she had alleged that the employer had infringed a right of hers which is a relevant statutory right.[158]In respect of section 101A, the employer must have actually breached or proposed to breach the working time regulations. The alleged breach relied on by the claimant was that the respondent had removed the claimant’s holidays from her (by deducting them each month) without following the process in the Working Time Regulations 1998.[159]The respondent did not do this as is clear from the decision of EJ Green and my findings above. Regardless, therefore, of whether the claimant alleged that this had happened or not, it cannot have been the reason for the claimant’s dismissal so this claim is unsuccessful.[160]In respect of s 104, the burden is still on the claimant to show the reason for the dismissal, but the employer does not actually have to have infringed a statutory right. It is sufficient that the claimant makes the allegation that they have done so in good faith.[161]In my judgment, the email of 5 February 2021 from the claimant does assert that the respondent had infringed a relevant statutory right – namely the claimant’s right to take paid holiday under the Working Time Regulations 1998. It was not correct, but in my view it was made in good faith. The claimant clearly was at that time convinced that she was entitled to holiday and the respondent had removed that from her. Further, it is clear from the tone and wording of the emails that while she is making the allegation, she was also seeking to resolve the problems in a conciliatory way.[162]The timing of that email and the subsequent email about redundancy is on the face of it suspicious. However, in my view the respondent genuinely believed it was facing financial difficulties, that the claimant and her colleague were not absolutely necessary to the immediate future of the business and the reason for dismissing the claimant was ostensibly for redundancy – that is because there was a reduced need for the people to do the work of operations manager. Further, the claimant had been aware of the financial difficulties for some time.[163]The claimant’s role was concerned with the practical matters associated with events. There were no events and there were none likely in the near future. This is the most likely explanation for the respondent’s decision.[164]Although not set out in my findings above, I have considered the fact that that the respondent advertised for new staff shortly thereafter. However, circumstances changed – as is well known – and the respondent needed, I accept, to recruit more staff when things did pick up to get the business running again.[165]I have also taken into account the fact that the claimant had raised a number of complaints previously and the respondent had dealt with them professionally and with no sign of irritation, that the claimant was given the benefit of a consultation period where none was required prior to her dismissal (her having less than two year’s continuous service) and the email of 8 February 2021 which indicated that the respondent would do the correct thing, however, inconvenient.[166]For these reasons, the claimant has not shown that the sole or principle reason for her dismissal was because she asserted that the respondent had infringed a relevant statutory right and the claimant’s claim for unfair dismissal is unsuccessful. Employment Judge Miller Date 1 July 2022 Appendix – Issues
The hearing
[1]Employment status 1.1 Was the claimant an employee of the respondent within the meaning of section 230 of the Employment Rights Act 1996?[2]Unfair dismissal Automatically unfair dismissal If the Claimant did not have 2 years’ continuous employment 2.1. Did the claimant do an act as defined in section 101A or 104 of the Employment Rights Act 1996? The Tribunal will decide: What did the claimant say or write? When? To whom? Has she proved that this was the reason or principal reason for dismissal? Is this therefore an automatically unfair reason? If the Claimant had 2 years’ continuous employment 2.2. What was the reason or principal reason for dismissal? The Respondent says the reason was redundancy. 2.3. If so the Claimant will be entitled to a statutory redundancy payment. 2.4. If not was the principal reason automatically unfair as alleged? 2.5. Nb although The Tribunal will also usually in an unfair dismissal/redundancy claim decide, in particular, whether: 2.5.1. The respondent adequately warned and consulted the claimant; 2.5.2. The respondent adopted a reasonable selection decision, including its approach to a selection pool; 2.5.3. The respondent took reasonable steps to find the claimant suitable alternative employment; 2.5.4. Dismissal was within the range of reasonable responses. In this case the claim for ordinary unfair dismissal (which would include unfair selection for redundancy) has already been dismissed upon withdrawal.[3]Remedy for unfair dismissal3.1 Does the claimant wish to be reinstated to their previous employment?3.2 Does the claimant wish to be re-engaged to comparable employment or other suitable employment?3.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.3.5 What should the terms of the re-engagement order be?3.6 If there is a compensatory award, how much should it be? The Tribunal will decide:3.6.1 What financial losses has the dismissal caused the claimant?3.6.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?3.6.3 If not, for what period of loss should the claimant be compensated?3.6.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?3.6.5 If so, should the claimant’s compensation be reduced? By how much?3.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? Nb it expressly does not apply to redundancy dismissals.3.6.7 Did the respondent or the claimant unreasonably fail to comply with it?3.6.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?3.6.9 If the claimant was unfairly dismissed, did s/he cause or contribute to dismissal by blameworthy conduct?3.6.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?3.6.11 The statutory cap of fifty-two weeks’ pay will apply and there is no power to award compensation for injury to feelings in an unfair dismissal claim.3.7 What basic award is payable to the claimant, if any?3.8 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?[4]Wrongful dismissal / Notice pay 4.1. The claimant’s notice period has been held to be 4 weeks. 4.2. She was not paid in full for that notice period, and the outstanding amount due ought to be capable of agreement in advance of the final hearing?[5]Holiday Pay (Working Time Regulations 1998)5.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended?5.2 What was the claimant’s leave year? The current leave year as at termination on 31st March 2021 is agreed to have been 1st April to 31st March (as set out in a written contract dated 30th June 2019).5.3 How much of the leave year had passed when the claimant’s employment ended?5.4 How much leave had accrued for the year by that date?5.5 How much paid leave had the claimant taken in the year?5.6 Were any days carried over from previous holiday years?5.7 How many days remain unpaid?5.8 What is the relevant daily rate of pay?[6]Unauthorised deductions6.1 Did the respondent make unauthorised deductions from the claimant’s wages and if so how much was deducted?6.2 Were the wages paid to the claimant after 23rd February 2020 less than the wages she should have been paid by reason of a contractually enforceable increase in annual salary from £28000 to £33000 as from that date?6.3 Were the 80 per cent furlough payments under the government scheme for January and February 2021 less that an enforceable contractual entitlement to have this topped up to 100 per cent by the employer?6.4 How much is the claimant owed?