Mrs S D Bishop v Alwoodley Community Association Social Club Ltd: 1804843/2018
EMPLOYMENT TRIBUNALS
Case No 1804843/2018
Between
Mrs S D BishopClaimantAlwoodley Community Association Social Club LtdRespondent
Before
Employment Judge KeevashIn person for claimantDate 17 July 2018
JUDGMENT
[1]By consent the Claim Form is amended so as to substitute Alwoodley Community Association Social Club Ltd as the name of the Respondent.[2]The complaint of unfair dismissal succeeds. The Respondent is ordered to pay to the Claimant compensation in the sum of £3,461.94 (basic award £240; compensatory award £2,529.55; ACAS uplift £692.39). The Recoupment Regulations do not apply.[3]The complaint of breach of contract (notice pay) succeeds. The Respondent is not ordered to pay any damages to the Claimant.[4]The complaint that the Respondent failed to provide the Claimant with a written statement of reasons succeeds. The Respondent is ordered to pay to the Claimant compensation in the sum of £160.[5]The Respondent failed to provide the Claimant with a written statement of initial employment particulars. The Respondent is ordered to pay to the Claimant compensation in the sum of £320. JUDGMENT having been sent to the parties on 17 July 2018 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]By her Claim Form the Claimant complained that the Respondent(a) unfairly dismissed her(b) acted in breach of her contract of employment when dismissing her without notice or making a payment in lieu of such notice(c) failed to provide a written statement of reasons for dismissal(d) failed to provide a statement of employment particulars. By its response the Respondent resisted the complaints. Issues The Employment Judge noted that the issues to be determined had been identified by an Employment Judge at a Preliminary Hearing on 29 May 2018. Hearing At the Hearing the Claimant agreed that the correct name of the Respondent was Alwoodley Community Association Social Club Ltd. The Employment Judge Ordered that by consent the Claim Form be amended to substitute that name as the name of the Respondent. At the Hearing the Claimant gave evidence on her own behalf. Susan Gaunt, Chairman of the Alwoodley Community Association, and Tony Canning, Steward, gave evidence on behalf of the Respondent. With the parties' consent the Employment Judge read the statements of the following witnesses who did not - attend the Hearing:- (a) on behalf of the Claimant, Gary Bishop, Mark Wright, Alice Jane Jeffreys, Diane Corscadden and Caroline Statman and (b) on behalf of the Respondent, Natalie Chadwick, Diane Corscadden, Jeane and Peter Marshall The Employment Judge also referred to a bundle of documents. Facts The Employment Judge found the following facts proved on the balance of probabilities:-5.1 On 5 November 2015 the Claimant was employed as bar staff by the Respondent.5.2 On 19 November 2017 there was an incident when the Claimant locked the entry door to the club premises because of health and safety concerns. Subsequently Mrs Marshall shouted at the Claimant. On 25 November 2017 the Claimant attempted to speak to Mrs Marshall about the matter. Mrs Marshall again shouted at her in temper.5.3 On 26 November 2017 Mr Canning dismissed the Claimant, stating something like "it's best if we part ways". She pleaded with him to save her job and he said that she would have to speak to Mrs Marshall.5.4 By an email dated 27 November 2017 the Claimant informed Mr Canning that, if she managed to save her job, she was prepared to pay for an audio door entry system which would possibly solve the security issue.5.5 On 1 December 2017 Mr Canning told the Claimant that her job was safe.5.6 On 29 December 2017 the Claimant went to work to do her evening shift. She locked up the premises and left at about 20.30. At 20.33 she sent a text to Mr Canning in which she explained that she might get a complaint. Mr Canning replied that Mrs Marshall and Mrs Gaunt had already telephoned him. He stated that he would reply the next day.5.7 On 30 December 2017 the Claimant sent Mr Canning a text suggesting that they met that evening. Mr Canning replied stating that he would telephone the next day.5.8 On 31 December 2017 Mr Canning sent the Claimant a text informing her that he was at the premises. She went to the premises. Mr Canning told her 'there's no easy way to say this" "1 have no choice but to let you go" "my hands are tied" "it's best if we part ways" and "it's a shame because you were a good worker". The Claimant left the premises. She did not return to work.5.9 By a letter dated 4 January 2018 the Claimant informed Mr Taylor, the Treasurer of the Alwoodley Community Association ("the ACA"):"l hope you are well and had a good Christmas & New Year. Unfortunately mine wasn't one of the best, as I was dismissed from my employment at the ACA on the morning of New Year's Eve ... — C)5.10 By an email dated 4 January 2018 Mr Taylor informed the Claimant that the bar was run by the Respondent which paid a fee to the ACA for its use of the premises. He suggested that he forward her letter to the Respondent's Treasurer. 5.1 1 By a letter dated 14 January 2018 the Claimant informed Mrs Gaunt:- I am writing with regard to my recent, and unexpected, dismissal from my employment at the ACA, in particular the following points: I would like to have in writing the reason for my dismissal 5.12 On 27 January 2018 by a Facebook message Mrs Gaunt informed the Claimant that she had passed the matter to Mrs Marshall as she had "no remit' over what happens within the social club". 5.13 By an email dated 31 January 2018 the Claimant informed Mrs Marshall:"Despite two letters which I have sent in to the club, both attached, since I was dismissed with immediate effect by Tony Canning on 31 st December 2017, I have received no reply or contact in return whatsoever. Simon Taylor replied just stating he was passing my letter on to the Social Club Treasurer, and Sue Grant informed me via Messenger that she had passed the second letter on to you. I have been told that my employment contract was not with the ACA Community Association, but with the Social Club, of which you are the Chairman, therefore you were directly my employer. I am writing now to remind you of the Employment Rights which all employers must adhere to: Getting your dismissal in writing You have the right to ask for a written statement from your employer giving the reasons why you've been dismissed of you're an employee and have completed 2 years' service 5.14 By a letter dated 13 February 2018 Mrs Marshall informed the Claimant:"l am writing to confirm the terms we have agreed in relation to the termination of your employment with Alwoodley Community Association Social Club with effect from 31 st December 2017. 1 ... We note that you were paid E30 on the day of your dismissal ...". 5.15 By a letter dated 20 March 2018 Mrs Marshall informed the Claimant:- In regard to your employment, your role was casual and your employment status was that of a "Worked'... As part of our investigation, it has emerged that at no point did anyone actually dismiss you .. .it seems reasonable to conclude that you had resigned your position —
The Law
[6]Section 98 of the Employment Rights Act 1996 ("the 1996 Act") provides:"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show —(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2)... (2) A reason falls within this subsection if it — (b) relates to the conduct of the employee ... (4) Where the employer has fulfilled the requirements of subsection (1 the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) — (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case Section 92 of the 1996 Act provides:- "(1 ) An employee is entitled to be provided by his employer with a written statement giving particulars of the reasons for the employee's dismissal — (b) if the employee's contract of employment is terminated by the employer without notice ... (2) ... an employee is entitled to a written statement under this section only if he makes a request for one; and a statement shall be provided within fourteen days of such a request Section 38 of the Employment Act 2002 ("the 2002 Act') provides:- (3) If in the case of proceedings to which this section applies — (a) the employment tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and (b) when the proceedings were begun the employer was in breach of his duty to the employee under section 1 (1) or 4(1) of the Employment Rights Act 1996 the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead. (4) In subsections (2) and (3) — (a) references to the minimum amount are to an amount equal to two weeks' pay, and (b) references to the higher amount are to an amount equal to four weeks' pay. (5) The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable Submissions The Claimant and Mr Luke made oral submissions. - Discussion The complaint of unfair dismissal By its Response the Respondent contended that the Claimant's employment terminated by way of her resignation. The Employment judge rejected that contention. The Employment Judge accepted the Claimants evidence which was clear, concise, consistent and truthful. It was also supported by contemporaneous documents including text messages. The Respondent referred to the Claimant's "dismissal" in its letter dated 13 February 2018. The Employment Judge rejected Mr Canning's evidence which was unconvincing and unreliable. For example he gave evidence about a text which he sent to the Claimant but when pressed he was unable to produce it. His evidence conflicted with the contention in the Response that he had telephoned her on 29 December 2017. He also accepted that he might have said what he was alleged to have said on 31 December 2017. The Employment Judge found that on 31 December 2017 Mr Canning dismissed the Claimant. In doing so the Employment Judge decided that he acted on the Respondent's behalf. Mr Canning interviewed and appointed the Claimant to the job; he specified her shifts; he gave her instructions as to how to do her work; he arranged her pay. Throughout her employment he acted as her line manager, acting on behalf of the Respondent which was her employer. The Employment Judge found that on 29 December 2017 the Claimant decided to close the premises early at about 20.30 because there were no customers and because she did not expect anyone else to come as a result of bad weather conditions. The Claimant had previously closed the premises early when there were no customers. She had done so with Mr Canning's knowledge and approval. On the night in question she was in the process of closing up when some people arrived expecting to have drinks and make use of the facilities. They were displeased by the Claimant's decision to close early. 1 1 Mrs Gaunt was unable to give any evidence about the reason for the Claimant's dismissal. She was the Chairman of ACA and she had no responsibility or authority for the operation of the Respondent social club. The Employment Judge found that Mr Canning dismissed the Claimant because of the incident on 29 December 2017. The Employment Judge decided that, as there was no evidence as to the reason for the dismissal, the dismissal was unfair because the Respondent had failed to discharge the burden of proving that it had a potentially fair reason for dismissal under section 98 of the 1996 Act. Further, the Employment Judge decided that by dismissing the Claimant on the spot the Respondent acted unreasonably under the provisions of section 98(4) of the 1996 Act. At the very least it should have informed her that it was considering taking disciplinary action, called her to a meeting to allow her to answer the allegations, listened to her case before making a decision. It should also have allowed her an appeal. Accordingly the complaint under this head succeeded. The complaint of breach of contract (notice pay) The Employment Judge found that the Respondent dismissed the Claimant without notice and without making a payment in lieu of such notice. He found and - decided that the Respondent was not entitled to do so by reason of the Claimant' s conduct. Accordingly the complaint under this head succeeded. The complaint of failure to provide written reasons The Employment Judge found that by her letter dated 31 January 2018 the Claimant requested written reasons for her dismissal. The Respondent failed to provide a written statement and that failure was unreasonable. Failure to provide a statement of employment particulars The Employment Judge found that the Respondent failed to provide the Claimant with a statement of employment particulars in breach of its duty under section 1 of the 1996 Act. Accordingly the complaint under this head succeeded. Compensation The Employment Judge assessed compensation as follows:- Complaint of unfair dismissal Basic award Date of birth 17 July 1963 Effective date of termination 31 December 2017 Age as EDT 54 Gross weekly pay (agreed) E80 Qualifying service 2 years Multiplier 3 Entitlement 240 Compensatory award (a) actual loss The Employment Judge found that the Claimant had mitigated her loss 28 weeks x 280 2,240 Less actual earnings (agreed) 678.53 1 ,561.47 (b) future loss The Employment Judge found that the Claimant would continue to incur a partial loss of earnings for a further twenty four weeks 568.08 24 weeks x 223.67(c) loss of statutory rights The Employment Judge decided that it was appropriate to award the sum of 400 2,769.55 ACAS uplift The Employment Judge found that the Respondent unreasonably acted in breach of the ACAS Code. He decided that an uplift of 25% was appropriate. 692.55 3 461.94 — Accordingly the Employment Judge ordered the Respondent to pay to the Claimant compensation in the sum of 23,461.94. The Recoupment Regulations do not apply. Complaint of breach of contract The Employment Judge decided to make no award of damages under this head because any loss had been subsumed under the compensatory award for the unfair dismissal complaint. The Claimant could not recover twice for this loss. Accordingly the Respondent was not ordered to pay any damages to the Claimant Complaint of failure to provide written reasons The Employment Judge decided to make an award of El 60 which was equal to the amount of two weeks' pay in accordance with section 93(2)(b) of the 1996 Act. Failure to provide a statement of employment particulars The Employment Judge decided to make the higher award of four weeks' pay totalling 2320. It was just and equitable to do so and there were no exceptional circumstances. Other matters In her schedule of loss the Claimant referred to a claim for holiday pay. As the Claim Form comprised no such complaint and the Claimant made no application to amend, the Employment Judge made no determination on this matter.