Mrs Lisa Hobson v Woodheads (Eckington) Ltd: 1808371/2018

EMPLOYMENT TRIBUNALS

Case No 1808371/2018

Between

Mrs Lisa HobsonClaimant

Woodheads (Eckington) LtdRespondent

Before

Employment Judge Eeley

In person for claimant

Date 4 December 2018

JUDGMENT

[1]The claimant has more than two years’ continuous service as an employee and so the tribunal does have jurisdiction to hear and determine the claim for unfair dismissal.

[2]The claimant was unfairly dismissed. The procedure utilized by the respondent was unfair.

[3]If the respondent had followed a fair procedure it would have fairly dismissed the claimant in any event. Following the principles in Polkey v AE Dayton Services Ltd

[1988] ICR 142

the claimant’s entitlement to a compensatory award is reduced to nil.

[4]The claimant’s basic and compensatory awards are to be reduced by 100% pursuant to sections 122(2) and 123(6) of the Employment Rights Act 1996. The award of compensation in respect of the claimant’s unfair dismissal claim is therefore nil.

[5]The claim for wrongful dismissal is upheld. The claimant’s statutory entitlement was to two weeks’ notice pay. The claimant has already received one week’s notice pay and so the balance of one week’s net pay is payable by the respondent.

REASONS

[1]The claimant brought claims of unfair dismissal and wrongful dismissal arising out of her work with the respondent. The respondent defended the claimant’s claims on the basis that the claimant did not have two years’ service and that therefore the tribunal did not have jurisdiction to hear the unfair dismissal claim. It asserted that the claimant had already been paid the notice pay to which she was entitled (one week). In the alternative, the respondent asserted that the dismissal was fair.

[2]The following issues arose for determination by the tribunal:a. Was the claimant an employee throughout her time working at the café (i.e. both pre and post TUPE transfer) such that she had sufficient service to claim unfair dismissal? If not, her unfair dismissal claim would be dismissed for lack of jurisdiction and her wrongful dismissal claim would be dismissed on the basis that she had received the one week’s notice pay to which she was entitled.

b. If the claimant had two or more years’ service as an employee: i. What was the reason for the dismissal? Was it a potentially fair reason within the meaning of section 98 of the Employment Rights Act 1996? The respondent contends that the claimant was dismissed by reason of conduct. ii. Did the respondent have a genuine belief in the claimant’s guilt which was based on reasonable grounds following a reasonable investigation? iii. Was the decision to dismiss fair within the meaning of section 98(4) of the Employment Rights Act 1996? iv. If the dismissal was procedurally unfair should there be a reduction in compensation pursuant to the principles outlined in Polkey v AE Dayton Services Ltd? v. If the dismissal was unfair was the claimant responsible for culpable or blameworthy conduct which contributed to her dismissal such that a reduction in the basic or compensatory award is appropriate pursuant to sections 122(2) or 123(6) of the Employment Rights Act 1996?

[3]I received written witness statements and heard oral evidence from the claimant and from Mr Cooper on behalf of the respondent. I was referred to the relevant documents within a bundle which ran to 88 pages.

Findings of Fact

[4]The claimant worked at The Griddle Sandwich Bar which later became Crumbs Sandwich Bar. She started work on or around 26th March 2015 as a favour to a close friend, Danielle Speed as she was struggling to recruit staff. The café had been purchased by Paula Oldale, Ms Speed’s mother, but she had fallen ill so Ms Speed was running the business for her. The claimant agreed to work for Ms Speed on condition that her sister (Vicky Fox) was also taken on to work in the business.

[5]Before starting work at the café there was a text message exchange between the claimant and Danielle Speed on 7th February 2015 in which Ms Speed asked the claimant to let her know what hours she would be able to work. She said that she would definitely need the claimant to work on a Friday. The café would be open 8am to 2pm but the claimant would need to be there from 7.30am to 2.30pm.

[6]There was a further text message exchange between the claimant and Danielle Speed on 26th March 2015. In it the claimant queried whether they would definitely be starting work the following Monday as her sister needed to phone the dole office. The claimant also queried what time she would be starting and how many hours her sister would have to declare and whether Danielle needed her NI number.

[7]The claimant says that when she first started her hours and days of work were not specified but that pretty soon she was working four days a week plus alternate Saturdays. She would take Tuesdays off. The café was open six days a week. Her shifts ran from 7.30am to 2.30pm. She did not take sick leave prior to the TUPE transfer so cannot comment on whether she would be paid sick leave. Prior to the TUPE transfer the claimant never worked anywhere else, she was committed to working at the café. The claimant said that she could not recall if she had taken any holidays before the café was sold. She knows that she was paid holiday pay after the café was sold. Prior to sale of the business she was always paid in cash, initially in envelopes although later these were dispensed with. She does not know whether she earned enough during this period to pay tax. The claimant never received a P60 or a P45 in relation to her work prior to the sale of the business. The claimant says that before the business was sold her job consisted of cooking, washing up and waiting on tables. Her sister had similar work but did not do as much of the cooking. The first owner of the business had brought the workers aprons but there was no branded t shirt to wear as had initially been planned.

[8]As the business was failing it was put up for sale and was bought by the respondent on 13th October 2017. The sale agreement document (p57) records the sellers (and therefore the owners of the café) as John and Paula Oldale. A schedule to the agreement (p67) listed the business as having two employees. The claimant was listed as “cook” and was said to have a start date of 6th April 2016. She was said to have various hours per week within a minimum of 28 hours. The other employee was Vicky Fox (the claimant’s sister) whose start date was 6th April 2015, whose job title was “waiting on” and whose hours were said to be “minimum 28 hours per week.”

[9]The sale agreement is the only near contemporaneous document detailing the claimant’s dates of service as an employee of the café. As the claimant was subsequently dismissed with effect on 12th March 2018 she would not have sufficient length of service if the start date on the document was correct. Since the start of the tribunal proceedings both parties have sought to get clarification from the former owners of the café as to when they say the claimant started as an employee as opposed to some more casual worker. The claimant produced a letter dated 29th June 2008 (p29) which is said to have been typed by Danielle Speed. It is thought that the date on the letter should have referred to 2018 rather than 2008. The letter states: I would like to clarify that your start date of employment at Crumbs café…. Was the 6th April 2015 until I sold the business on 14th October 2017. If you require any more information please don’t hesitate to contact me”. I pause to note that the letter is unsigned and that Danielle Speed did not attend as a witness before the tribunal. I also note that although the letter refers to Ms Speed selling the business it was in fact not hers to sell and was sold by her mother.

[10]The respondent produced a letter from Paula Oldale (the actual former owner of the business) dated 4th October 2018 (p73). This letter was signed and was in response to a letter from the respondent’s solicitor. It stated: “When the café was first purchased by us I was taken ill and a manager took over this for me. Lisa offered to help on occasions with no set pattern and as such no records had been kept. Lisa then became employed by us on 4th April 2016 (As set out in the terms of our agreement signed at the time of the shop being sold.)” Clearly the date referred to in the letter must be an error as it refers to the sale document which gives a start date of 6th April not 4th April. Nothing turns on the difference of two days. I was also referred to an email which predated the sale of the café (21st June 2017) from Paula Oldale to the property agents which states that there are two members of staff: the claimant and Vicky Parsons. It states that they had run the café, opened it up and done the ordering.

[11]I was referred to a text message exchange between the claimant and Paula Oldale on 4th September 2018: Claimant: “Hi Paula I’m not sure if Danielle has told you but I’m taking Mr Cooper to an employment tribunal and there’s a problem with my start date, could you possibly do me a letter stating that I started in March 2015, only for some reason Mr Cooper is adamant that you informed him 2016 which in his eyes I haven’t got continuous employment of 2 years. This may have been a mistake by you with all that was going on at the time. But could you please rectify it. Danielle has wrote me a short letter already but Mr Cooper is going down the lines that she was only a manager and not the owner…” Mrs Oldale: “Hi Lisa sorry you are having issues. When the café was handed over I had to put the start dates the staff started with the HMRC. That’s why he will have those dates and unfortunately I cannot change this. Thank you Paula.”

[12]The claimant had not received a written contract of employment from the former owner of the café. Nor had she received any itemized payslips. A print out from the HMRC website shows that she was registered for tax and national insurance payments from 1st May 2016 and that records were in place for the whole of the 2017/18 tax year. The claimant had sought to print off the records for 6th April 2015 to 5th April 2016 but the print out stated “There is a temporary problem with one of our systems. It means we can’t show your actual taxable income or details of the Income Tax and National Insurance you have already paid.” The claimant did not go back to the website at a later date and obtain a print out of the records and so there is no tax and NI documentation for 2015/16 year before the tribunal. The claimant did not receive a P45 from her employment with the café’s previous owners.

[13]The claimant was informed of the sale of the business in September 2017 and was told that she and her sister would keep their jobs. The respondent already had a successful café in Chesterfield.

[14]The claimant was asked to go to the respondent’s Chesterfield café for some induction training. This took place on 14th October 2017. The claimant was driven to Chesterfield by her sister as she is not a confident driver and gets anxious about driving to new or unfamiliar places. On arrival at Chesterfield the claimant had a chat with the business owners Ian Cooper and Stephanie Mallender. The claimant then spent some time in the kitchen with Karla Daff as she was due to come to the Eckington café to train the claimant in the way that the respondent did things.

[15]Following the induction visit some of the Chesterfield staff travelled to the Eckington café to train the claimant on the Woodheads’ way of cooking and front of house style.

[16]The respondent issued written contracts of employment to former Crumbs café staff shortly after they took over the business. A Facebook Messenger message shows that the claimant was sent a copy of the contract of employment and a copy of the employee handbook on 14th November 2017 and a pensions illustration on 20th November 2017. I accept that a paper copy was also delivered to the claimant. The claimant initially asserted that she had never received a contract from the respondent. I do not accept this and find that the document at page 31 clearly shows that one was delivered. In cross examination she accepted that this electronic copy of the contract was sent to her but that she did not open it to read it at the time. The claimant said that she had not opened the electronic copy to actually read her contract. I do not accept this as her message on 31st December 2017 (p81) clearly states “I have signed the contract and will leave it at the shop”. The claimant sought to suggest in evidence that she was referring to signing the company handbook. However, that is not what she said in the message, the respondent never received a signed copy of the handbook and the claimant, although she says she retained it, was unable to provide a copy of her signed handbook to the tribunal. I prefer the respondent’s evidence in relation to this issue. I also accept the respondent’s evidence that the claimant was also provided with a paper copy of her contract of employment. The claimant was clearly provided with a copy of her contract in November 2017. The contract (p47) clearly stated a TUPE start date of 6th April 2016 which the claimant did not query or challenge at the time and which was in line with the business sale agreement document. The contract also stated “Place of Work You will normally be based at 8 Southgate, Eckington S21 4FT but you are required to work at any location at which the Company operates as authorised and as determined by the needs of the business. You will not be required to work outside the United Kingdom.” The claimant said that she was unable to open electronic documents on her phone although she clearly sent electronic documents herself (p37). On her own evidence she clearly had access to a computer to open and read such documents even if she made a choice not to do so.

[17]I was referred to a further text message conversation between the claimant and Stephanie Mallinder on 24th October 2017 (p50) in which the claimant states “I can drive but not always got access to car.”

[18]In the run up to Christmas 2017 the claimant was invited to attend the staff Christmas meal in Chesterfield. A Facebook messenger conversation (p80) suggests that the claimant was willing to go to the meal but was initially reluctant to go on her own because she would have to drive and she was “rubbish” at it. She was then offered a lift with Ian Cooper as long as she could get to her colleague’s house for the pick-up. I heard evidence that in the end the claimant did not attend the meal despite having a lift but that this was nothing to do with anxiety but rather because she needed to go to a meeting at her son’s school. However, in her sworn witness statement the claimant said that she could not make the meal because she could not drive there on her own. This was clearly untrue. The claimant also said in her witness statement that Mr Cooper had previously mentioned Chesterfield saying he wanted her to feel part of the family and the claimant had laughed it off and said that it was too far and that she was ok where she was and that she didn’t like travelling.

[19]On or about 3rd March 2018 the claimant questioned Mr Cooper about a shortfall in her wages. The café had been forced to close due to severe weather as a result of the so-called “Beast from the East”. The claimant had not been paid for the days when the café was closed and she was unable to take the days as paid holiday. She challenged the legality of this with Mr Cooper. He was initially of the view that she was not entitled to be paid but he did go away and research the position and agreed with the claimant that she was entitled to the outstanding monies. She therefore received the outstanding pay on 5th March as set out in her bank statement (p74).

[20]The bank statement at p74-75 also demonstrates that the claimant did not work exactly the same hours every week but that her pay generally reflected a 33 hour week or a 26 hour week. This would be in keeping with a four day week plus alternate Saturdays based on a 7 hour shift.

[21]At about 11pm on 3rd March 2018 the claimant received a text message from Mr Cooper which stated: “Going to get you in to Chesterfield on Tuesday early instead of your Eckington shift that day. You need some training and skills transfer to get you into doing things the Woodheads way, and to increase your capacity on certain things. We definitely need to push Eckington, and when we do, it will get a lot busier, so you will need to be able to cope! Brand consistency and capacity to meet higher demand. You’ll be with Karla, she’s one of our best kitchen people.” The claimant says that she was alarmed by this request as she was anxious about travelling to Chesterfield on her own.

[22]The claimant sent a reply to Mr Cooper on Sunday 4th March at 7.30am stating: “Hi Ian sorry but you know my view on going to chesterfield I can’t! Because of my anxiety. The reason I went to eckington for a job was because I felt comfortable, if you feel I need training then I will have to be trained at eckington. I’m not been awkward I just can’t.” Mr Cooper queried: “What is it about coming to Chesterfield that is the problem? The driving? Navigating? Parking? Working with people you don’t know, or in a kitchen you are not familiar with? How busy it is? Or something else?” The claimant’s response was: “All of the above really. And all this business is not helping my health either so could we please take this up in works time tomorrow.” Mr Cooper responded that he would drive up and see the claimant the next day.

[23]On Monday 5th March Mr Cooper arrived at the Eckington café at about 1.30pm which was approximately half an hour before the end of the claimant’s shift. There were some customers still in the public seating area of the café and the claimant’s sister was at work in the kitchen. There was no other place on the premises where they could be alone to talk and so Mr Cooper pulled up two chairs in the corridor on the way to the toilets. Mr Cooper felt that it would be inappropriate to have the conversation in front of customers or other staff members. He also felt unable to wait until the end of the shift when the café closed to have the conversation with the claimant as he felt that she had been clear about wanting the conversation ‘in work’s time’ and so would be unwilling to wait behind after her shift to discuss matters further.

[24]Mr Cooper again asked the claimant to come to the Chesterfield café for training. The training could not all be done at the Eckington café as part of it was to get the claimant used to working in a busier café so that she would be able to cope once the Eckington café became busier. The claimant tried to explain that she suffered from anxiety and therefore could not travel alone. However, she was not very specific about the reasons why when she discussed it with Mr Cooper. Mr Cooper did not suggest alternative ways of getting the claimant to Chesterfield without her having to drive. However, he would not have objected to rearranging the training on a day when her husband could give her a lift or her sister to could come too. One of the staff at Chesterfield could cover the claimant’s sister’s work at Eckington to facilitate this. The claimant’s position was that she was not going to Chesterfield. She said things such as, “I’m never going. You’ll not get me there.” I accept that her body language (e.g. arms crossed). was defiant rather than distressed or on the verge of crying. She did not suggest any circumstances in which she should be willing to go to Chesterfield and did not ask for any different arrangements to facilitate her getting a lift to the venue.

[25]I find that the claimant flatly refused to return to Chesterfield under any circumstances. As her refusal to do so was seen by the respondent as a breach of the terms of her contract she was asked whether, given her refusal to do as asked, she wanted to resign or whether she would prefer the respondent to dismiss her. Mr Cooper felt that in light of the claimant’s refusal the contract could not go on and it was a question of deciding the mechanism by which it would terminate: resignation or dismissal. The claimant asked the Mr Cooper to give her notice.

[26]The same day the claimant decided to sign herself off sick from work. The claimant’s statement of sickness for SSP purposes was dated 5th March 2018 (p38). Her GP fit note was dated 9th March 2018 and signed her as unfit for work from 8th to 18th March because of anxiety.

[27]By letter dated 6th March the respondent gave the claimant notice of termination (p39). It did not give a reason for the termination but did confirm that the notice period was one week and that the claimant’s last day of employment would be 12th March and that she would be paid for 1 week’s notice. The letter confirmed that she had the right to appeal the decision by writing to Stephanie Mallinder within 5 days. I do not accept that this was an agreed termination in the manner suggested by the respondent. The respondent clearly orally gave the claimant the option to resign or be dismissed. The claimant was given no option to continue her contract. Her only ‘choice’ was as to how it should formally be brought to an end. She did not actively opt for termination of the contract herself, this was the respondent’s choice. It was a dismissal.

[28]The claimant appealed against the dismissal by letter dated 8th March 2018. She asserted that there had been no meeting, it was a discussion in a corridor. She asserted that if she had known it was going to be a meeting she would have brought a witness. She also asked for the reason for her dismissal.

[29]The response to the appeal was provided by Stephanie Mallinder via a letter dated 13th March 2018. In summary she stated that the claimant and the respondent had previously discussed the claimant coming over to Chesterfield and the claimant had previously agreed. It had not been possible to arrange this in the busy lead up to Christmas and the claimant had been away in. Australia for a few weeks after Christmas. Hence this was the most appropriate time. Ms Mallinder did not accept that a chat at the café required a witness and asserted that the corridor was the most suitable place given that the café had customers in it at the time. She stated that Mr Cooper had informed her that the claimant had flatly refused to go to Chesterfield and that she disagreed that she needed any training. Ms Mallinder explained that the training could not be done in Eckington at that stage due to the low number of customers. Part of the point of the training was to expose the claimant to a busier working environment. Ms Mallinder asserted that the claimant’s refusal constituted a breach of her contract and that, when given the option, the claimant had asked to be given notice rather than to resign.

[30]The tribunal was also provided with a copy of the claimant’s sister’s contract of employment with the respondent. It gives a TUPE start date of 6th April 2016 even though the business sale document gave a start date of 6th April 2015.

[31]The claimant asserts that she has suffered with depression for 12 years and anxiety, panic attacks and ulcerative colitis for 6 years. She asserts that anxiety causes her IBD (irritable bowel disease) to flare up and she needs the toilet urgently. Hence, she does not travel alone or on public transport. The claimant did not provide any medical evidence to explain the nature, extent, severity or duration of her medical conditions.

[32]In cross examination the claimant stated that driving in new places could cause panic attacks. She accepted that she could have got a taxi to Chesterfield but that would have cost extra money. She accepted that the difference in distance between her drive to Eckington and her drive to Chesterfield was about 7 ½ miles. The claimant said that she would not use public transport in case she got caught short and that she only travels with people she knows who are aware of her condition. She asserted that her sister could not have given her a lift to Chesterfield on the day in question and that her husband works 7 days a week 12 hours a day and would not be able to take her either. Her husband had driven her to the tribunal hearing. The claimant accepted that she did do some deliveries of sandwiches for the café but that these were all local and to places she knew well. They did not trigger anxiety. The claimant accepted that she sometimes drove to work when she had to. She accepted that she had been prepared to drive to work when the café shut even though the weather was treacherous enough to close the café. She accepted that driving to Chesterfield would not require her to use the motorway. The claimant does not like driving on motorways. The claimant accepted that she had been on holiday to Turkey twice and had toured France (albeit she had access to a toilet). She was absent from work during February and March 2018 to attend her daughter’s wedding in Australia.

[33]In the course of cross examination, the claimant also sought to argue that access to the toilet at Chesterfield was insufficient given her condition. This was a new assertion. She said that if she was caught short the distance between the kitchen and the toilet was too far as compared to that at Eckington. She asserted that the distance at Chesterfield from kitchen to toilet was two times the length of the tribunal hearing room. She accepted that when at home she had to go upstairs to use the toilet.

[34]I accept Mr Cooper’s evidence that whilst the claimant had mentioned anxiety during her employment with the respondent she did not really mention the IBD. If she did it was only shortly before the termination of her employment. She had not made much of it. I also accept his evidence that the claimant had not said to him prior to termination that the toilet at Chesterfield was too far away from the workspace. She had not suggested that this was part of her reasons for refusing to come to Chesterfield and he had not been aware of any difficulties with the premises when she attended her induction at Chesterfield.

[35]Overall where there is a dispute of fact between the witnesses I prefer the evidence of Mr Cooper. The claimant’s evidence was not altogether consistent and on occasions she changed her account from what she had said in her witness evidence. She was not consistent throughout. By contrast, Mr Cooper’s evidence was consistent. I accept that there was a difficulty with the disclosure of the wrong version of his witness statement to the claimant prior to the hearing. However, there were limited differences between the two documents. He added two paragraphs to deal with a document which had been disclosed and added late to the bundle. I accept that he disclosed the wrong statement in error but do not consider that he was acting dishonestly in doing do. The differences between the two witness statements do not suggest that he was attempting to mislead the claimant or unfairly take her by surprise. The law Employee Status

The law

[36]The starting point for determining whether there is a contract of employment is the judgment of McKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497

, where he said as follows: '''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 ...'.''

[37]In considering status it may also be relevant to consider the extent to which an individual is integrated into the respondent organisation. Can she be seen to be part and parcel of the organisation? On the other hand, it may be helpful to consider the so-called 'economic reality' or 'business reality' test which can be seen as the converse of the organisational test. Where the organisational test asks whether the individual is truly part and parcel of the organisation the economic reality test questions whether she is truly independent of it and ‘in business on her own account’. Looking at status from this angle it will be necessary to consider, in addition to the degree of control, the opportunities for profit or loss, the degree to which the worker was required to invest in the job in the way of provision of tools or equipment, the skill required for the allegedly independent work, and the permanency of the relationship. Was the worker really a small businessman rather than an employee? (Market Investigations Ltd v Minister of Social Security

[1969] 2 QB 173

[38]There is no exhaustive list of the considerations which are relevant in determining the employment status question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. Control will always have to be considered but is not the sole determining factor. Factors such as whether the person provides her own equipment, whether she hires her own helpers, what degree of financial risk she takes, what degree of responsibility for investment and management she has, and whether and how far she has an opportunity of profiting from sound management in the performance of her task are also relevant. It may be relevant to consider the amount of the remuneration and how was it paid, whether the worker was tied to one employer or whether she was free to work for others, how the parties themselves saw the relationship and the arrangements for income tax and national insurance. How the parties themselves label their relationship is a relevant but not conclusive consideration. The status of the worker is to be decided by an objective assessment of all the factors, and the label attached by the parties is only one of those factors. The parties cannot change the nature of the contract by attaching the 'wrong' label. It may also be relevant to look at the particular terms of the contract in question; for example, a genuine contract for services would not normally be expected to provide for sick pay or contractual holiday or pension entitlements. Unfair dismissal

[39]The relevant sections of the Employment Rights Act 1996 are as follows: Section 98 General(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) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held,

(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 122 Basic award: reductions …

(3) Where the tribunal considers that any conduct of the complainant before the dismissal (or where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further limit that amount accordingly. …. Section 123 Compensatory award … (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. ….

[40]It is for the respondent to show that the reason for the claimant’s dismissal was potentially fair and fell within section 98(1)(b). If the reason does fall within section 98(1)(b) neither party has the burden of proving fairness or otherwise within section 98(4).

[41]Where the reason for dismissal is conduct the tribunal is guided by British Homes Stores v Burchell

[1978] IRLR 379

and will look to find whether the respondent had a genuine belief that the claimant was guilty of the alleged misconduct. It will then consider whether that belief in guilt is based on reasonable grounds and that such belief was reached after a reasonable investigation and a fair process.

[42]The tribunal must be satisfied that the misconduct was sufficient to justify dismissing the claimant and that the decision to dismiss fell within the band of reasonable responses (Iceland Frozen Foods v Jones

[1983] IRLR 439

). The tribunal must not substitute its own judgment for that of the reasonable employer. The band of reasonable responses test applies to the procedural fairness as well as to the substantive fairness of the dismissal (J Sainsbury Plc v Hitt

[2003] ICR 111

). It applies to the appeal hearing as well as to the original dismissal. The tribunal must consider whether the process as a whole was fair (West Midlands Co-operative Society v Tipton

[1986] IRLR 112

[43]In the event that there is a finding of unfair dismissal based on procedural flaws the tribunal can consider what would have happened in the absence of such procedural flaws and make a reduction in compensation accordingly (Polkey v AE Dayton Services Ltd). Furthermore, if there is a finding of unfair dismissal the tribunal can examine the claimant’s conduct and conclude whether it was blameworthy or culpable and whether it contributed to the decision to dismiss. If so, it can consider reducing the basic or compensatory award by a suitable percentage. The wording of sections 122(2) and 123(6) differs. Under section 122(2) the issue is whether it is just and equitable to reduce the basic award because of the employee’s conduct. The employer may not discover the conduct until after the dismissal, and accordingly it may have had no influence on the decision to dismiss at all.

[44]In Steen v ASP Packaging Ltd

[2014] ICR 56

the EAT stated that the application of those sections to any question of compensation arising from a finding of unfair dismissal requires a Tribunal to address the following:(1) it must identify the conduct which is said to give rise to possible contributory fault;

(2) having identified that it must ask whether that conduct is blameworthy—the answer depends on what the employee actually did or failed to do, which is a matter of fact for the Tribunal to establish and which, once established, it is for the Tribunal to evaluate;

(3) the Tribunal must ask for the purposes of ERA 1996 s 123(6) if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did cause or contribute to the dismissal to any extent then the Tribunal moves on to the next question;

(4) this is to what extent the award should be reduced and to what extent it is just and equitable to reduce it.

[45]Viscount Dilhome in W Devis & Sons Ltd v Atkins

[1977] 2 All ER 321

, CA,

[1977] 3 All ER 40

, stated: ''[Section 123] requires the tribunal to consider whether a dismissal was “to any extent” caused by the action of the employee. It does not preclude the tribunal from coming to the conclusion that the dismissal was wholly caused by his conduct and, in the light of that conclusion, thinking it just and equitable to reduce the compensation it otherwise would have awarded to a nominal or nil amount … I do not see that there is any inconsistency in finding that there was in the terms of the Act unfair dismissal, and in awarding no compensation'.' Conclusions Employment status

Conclusions

[46]In her claim form the claimant contends that she was an employee of the café business from 26th March 2015 until her employment terminated on 12th March 2018. On that basis she contends that she had more than two years’ continuous service. The respondent accepts that it engaged the claimant under a contract of employment but asserts that prior to 6th April 2016 the claimant was not an employee of the transferor’s business. I must therefore determine the claimant’s status during the period 26th March to 6th April 2016.

[47]There is relatively little evidence in relation to the period. I cannot be satisfied that the claimant was registered for tax and national insurance prior to April 2016. Whilst the claimant says that she was and that the absence of records is due to a computer system failure I note the evidence from Paula Oldale who confirms that she put the claimant’s start date as an employee based on the date from which she was registered with HMRC. On that basis I am prepared to accept that 6th April 2016 was the start of the period during which HMRC were notified about the claimant as an employee for tax and NI purposes. I accept the hearsay evidence from Mrs Oldale taken together with the date on the sale agreement. I accept that where Mrs Oldale refers to 4th April 2016 this is a typographical error as she clearly refers to the sale document. I do not accept the hearsay evidence from Danielle Speed as she was not the business owner and would not necessarily have known about the arrangements with HMRC. The fact that she refers to herself as owner of the business in the letter and the letter is not signed suggests means that this evidence is less credible than that from Mrs Oldale.

[48]However, the tax and national insurance arrangements are not determinative of the claimant’s status on their own. Mrs Oldale may have failed to register the claimant with HMRC as early as she should have looking at the substance of the relationship between the parties. A person may be an employee in law even if the employer fails to notify HMRC of this. Even if Mrs Oldale thought that the claimant was not an employee until she was signed on with HMRC this is not necessarily the case. As the case law shows, the parties’ views of the contract between them, although relevant, are not determinative. I must look at the substance of the arrangement.

[49]There is very little evidence about the way that the claimant worked prior to 6th April 2016. It appears that at the outset she was asked what hours she was prepared to do. Very quickly her working hours became shifts from 7.30am to 2.30 pm on four days per week plus alternate Saturdays. There is no evidence to suggest that the claimant could deviate from these working patterns at will or without the permission of the café manager. Whilst Paula Oldale says that there was no set pattern of work before the claimant became an employee in April 2016 the reality is that she was not running the business from day to day (this had been delegated to Ms Speed) so Mrs Oldale would not necessarily have known the true arrangements regarding working hours. There is also no evidence from Mrs Oldale to confirm what changed when she chose to register the claimant with HMRC. Was there an actual change in the working arrangements or was this just the date that Mrs Oldale got around to registering the claimant? It may be that nothing changed in practice when the claimant was registered with HMRC other than that HMRC was made aware of her. There is no evidence to suggest that the way the business ran and the way workers were managed changed on or about 6th April 2016.

[50]I accept that there was sufficient control by the café owner/manager over when and how the claimant worked for her to be considered an employee. She was effectively told when to work and what work she needed to do. She did not have autonomy over this. She was not free to just not turn up for her shifts and there is no suggestion she could send along someone else to do her work instead. She also did not work elsewhere during the relevant period and there is no suggestion that she could do so.

[51]The claimant was clearly integrated into the business and was provided with an apron. There was an intention that she should be given a branded t shirt but in the end this did not happen. It is not possible on the basis of the evidence available to determine whether or not the claimant was entitled to sick pay or holiday pay as she claims that she did not take time off during the relevant period.

[52]There was no suggestion that the claimant could send someone else in her place to carry out work during the relevant period. There was a requirement of personal service. The claimant did not hold herself out as being in business on her own account. Customers would have seen her as a ‘face of the business’ and would not have noticed any difference pre and post 6th April 2016.

[53]There is little evidence to assist the tribunal in relation to the issue of status. Taking all the available evidence in the round and applying the so called “mixed test” of employment I am satisfied that the claimant became an employee within a matter of weeks of starting work for the respondent’s predecessor (i.e. in April 2015) so that she had more than two years’ continuous service in the business. There was sufficient control over her work and she was integrated into the business. She did not take the benefit of increased profits of the business and did not run the risk of losses to the business. She was paid for the work that she did irrespective. She did not provide her own equipment and cannot be said to have been in business on her own account. The written evidence regarding her start date as an employee relates to the date which was notified to HMRC. This is but one relevant factor and is not determinative. The mere fact that the previous owner of the business did not think she was employed at the outset is not determinative. The parties cannot convert a relationship which is, in substance, one of employment, into something else purely by the label which they choose to attach to it. Substantive claims

[54]The claimant had two years’ service and so had a statutory entitlement to two weeks’ notice pay. She has already received one week’s pay and so has an entitlement to a further one week’s net pay.

[55]In relation to the unfair dismissal claim I find that the respondent did indeed have a potentially fair reason for the dismissal within the meaning of section 98(1) ERA, namely conduct (section 98(2)(b)). It dismissed the claimant because of her refusal to attend the Chesterfield café for one day’s training. It essentially categorized this as a failure to follow a reasonable management instruction.

[56]I conclude that the respondent had a genuine belief that the claimant had unreasonably refused to attend Chesterfield. The claimant had made her position clear. It was apparent that she would on no account attend Chesterfield. She did not suggest arrangements which could be made to get her there and she did not make clear her reasons for refusing to go. Indeed, even at the tribunal hearing it was not entirely clear what the claimant’s real reason for refusing to go actually was and there was no suggestion that she would have changed her mind.

[57]I accept that the respondent’s belief in the claimant’s guilt was based on reasonable grounds in that the dismissing officer was present at the discussion when the claimant refused to attend Chesterfield. She made it clear to him that she would not go but did not clearly explain her reasons for this. I conclude that she had reasonable opportunity to do so.

[58]On that basis I find that the decision to dismiss was within the band of reasonable responses. The claimant was refusing to obey what appeared to be a reasonable management instruction. The respondent was entitled to require her to attend the training which it deemed necessary. At times she appeared to suggest that she was refusing because she did not like driving or going to unfamiliar places. Then she said it was due to her anxiety which was triggered by driving to new places. However, she had already been to the Chesterfield café on one occasion. The journey was only 7 ½ miles longer than her normal commute. Whilst the claimant may suffer from anxiety there was no medical evidence available to either the tribunal or the respondent to show that she was medically unfit to attend a different workplace for one day. Furthermore, if driving herself was impossible because of her anxiety one would have expected her to say this and to ask if there was some other way of getting her there e.g. getting a lift with her sister (which had happened before). She did not do this. She refused to go ‘point blank’ and did not make it clear that it was driving herself which was medically impossible. Whilst the claimant may well suffer from anxiety it is apparent that she exaggerated the extent of the problem before the tribunal. Being unable to drive 7 ½ miles more than her normal commute is not consistent with being able to undertake a lengthy journey to Australia or with being insistent on driving into work in the snow when the respondent shut the café due to adverse weather. She says that she could not do the journey alone or with someone who did not know about her condition but she had accepted a lift with another employee to the Christmas meal which was to be held in Chesterfield.

[59]The claimant sought to embroider her reasons for refusing to travel. Whilst she mentioned anxiety at the material time (i.e. when discussing it with the respondent) she sought to add IBD into the mix at the tribunal saying that she was frightened of being caught short on the journey. This is not consistent with her international travel for leisure purposes. She sought to suggest that toilet facilities were insufficient in Chesterfield. However, she had not had such difficulties on her induction and did not mention them to the respondent on 5th March.

[60]The reality is that the respondent as business owner was entitled to conclude that it wanted the claimant to undergo training at Chesterfield and that such training could not be completed wholly at Eckington. The claimant refused to do this and did not make her reasons clear or suggest alternative ways by which she could attend Chesterfield. The respondent was met with the claimant’s intransigence without a clear and reasonable explanation. It was not making a particularly onerous request of the claimant. It certainly was not requiring her to transfer permanently to a new place of work. I am satisfied that, based on what it was told at the time, the respondent was entitled to conclude that the claimant had no genuine and good reason for refusing to attend. This ruptured the relationship of trust and confidence between the parties. There were insufficient mitigating factors or justifications for the claimant’s refusal. The decision to dismiss was within the band of reasonable responses.

[61]However, I have had to conclude that the dismissal was procedurally unfair. The claimant was not given any warning that her actions could result in dismissal. She was not given the right to be accompanied and did not have a disciplinary meeting as such. She was not told in advance that the discussion with Mr Cooper was a disciplinary meeting. Rather than hold the meeting in the corridor the claimant should at least have been given the option to hold the meeting towards the end of the shift after the café had closed to the public and when matters could be discussed away from the public and other employees, perhaps in the dining room. If she had refused such a request and had insisted on meeting during opening hours then the location of the meeting would have been reasonable, being the best available at the time. However, she was not given this option of meeting after closing time and she should have been. She was not forewarned of the allegation. Whilst she was offered the right of appeal this was not a meaningful appeal as she was not invited to a meeting to put forward her grounds of appeal and Ms Mallinder responded to the appeal in writing without seeking any clarification of the grounds of appeal or carrying out any further investigation into them. She essentially rubberstamped Mr Cooper’s account of what had taken place and accepted his justification for dismissal without question.

[62]Irrespective of the procedural flaws in the decision to dismiss I find that the dismissal was substantively fair. Had the respondent carried out a fair procedure it would still have been entitled to dismiss the claimant and would have done so fairly. Dismissal would have been within the band of reasonable responses. I therefore conclude that the claimant is not entitled to a compensatory award as no losses flow from the procedural flaw: the outcome would have been the same even with a fair procedure.

[63]Irrespective of the respondent’s procedural failings I find that the claimant’s actions in refusing to travel to Chesterfield for a day’s training constituted blameworthy conduct which contributed to the decision to dismiss such that a reduction in both the basic and compensatory award is appropriate. Given the claimant’s disproportionate intransigence, her lack of a good reason for refusing to attend the training, the relatively modest nature of the respondent’s request and her refusal to attend under any circumstances I find that a 100% reduction in both the basic and compensatory awards is appropriate such that no compensation for unfair dismissal is payable. The claimant effectively caused her own dismissal by her unreasonable stance. I find it just and equitable that there should be no basic or compensatory award in this case.

Remedy

[64]As a result of the above the only further sum payable to the claimant is a further week’s net pay in respect of notice. There is currently no agreed figure for a week’s net pay before the tribunal. It is to be hoped that the parties can calculate the relevant sum themselves but if they are unable to resolve the issue it should be referred for a further hearing before me. Within 28 days of this judgment being sent out the parties shall write to the tribunal to confirm the amount that they agree is payable to reflect one week’s notice pay or to confirm that a further hearing is required to determine the relevant sum. If a further hearing is required the matter can then be referred for listing.