Ms R SuchonekClaimantAcorn of London LtdRespondent
Before
Employment Judge O Segal QCMs Henderson (instructed by counsel) for respondentDate 4 March 2020
JUDGMENT
The tribunal does not have jurisdiction to hear the Claimant’s claim of unfair dismissal because she was not continuously employed at the date of her dismissal for 2 years. That claim is therefore dismissed. (The Claimant has an outstanding claim for breach of contract.)
REASONS
[1]I gave fairly full oral reasons for the decision at the conclusion of the hearing. I have not been asked to put those in writing, but since the scope of the issue is relatively short, I give brief reasons in this document. - 1 -[2]The tribunal dealt today with an open preliminary hearing to determine whether the Claimant had been dismissed by the Respondent and if so when; and, if so, whether as at that date she had two years’ continuous employment for the purposes of an unfair dismissal claim.[3]I note in passing: the Claimant says that at material times she was disabled within the meaning of the Equality Act; however, whether she has any claim in that regard (and if so whether that claim has been brought or can now be brought) were not questions I was asked to deal with today.[4]I heard evidence from the Claimant herself (with the assistance of an interpreter) and from Kevin Murtagh, Head of Facilities, for the Respondent. I had an agreed bundle of documents, to several of which I was referred by the parties. Facts[5]I set out only those facts relevant to the determination of the two issues set out above.[6]The Claimant was employed at times by the Respondent as a cleaner of flats manged by it. The Claimant is Polish, her English is not fluent. At material times, her supervisor was Monika Zwloak (“MZ”) and Mr Murtagh was a more senior manager.[7]The Claimant began working for the Respondent in 2012.[8]The Claimant worked for the Respondent between 8 December 2016 and her dismissal (if there was one) in late 2018.[9]For the purposes of the continuity issue, the first critical period is that preceding 8 December 2016 – more particularly, as a matter of law (see below), the period 8 June 2016 to 8 December 2016.[10]Following the evidence, there was not in the end any dispute that the Claimant was not working during that period. The P45s, the P60 for 2016/17, the offer letter and contract, all provide evidence to that effect. Nor - 2 - did the Claimant, in her witness statement or her oral evidence, contradict the Respondent’s case on this point.[11]The Claimant required potential knee surgery in October 2018. On about 2 October 2018 she spoke to MZ at the Respondent’s office to tell her that she was going to Poland to consult a doctor and might have to have surgery. MZ, according to the Claimant – and there is no persuasive evidence to the contrary (MZ still works for the Respondent and has provided no statement for this hearing) – suggested that the Claimant should resign and when she was recovered could be taken on again. The Claimant did not want to resign and did not do so.[12]The Claimant flew to Poland shortly afterward and had the surgery on 8 October and was discharged on 9 October.[13]Not long afterwards, Mr Murtagh drafted a letter of dismissal of the Claimant to be sent out in the name of MZ, for the reason of her incapacity to work through ill health. Mr Murtagh had taken advice and been told that the Claimant did not have two years’ service and therefore no particular procedure needed to be adopted.[14]Concerned that she might be dismissed, the Claimant obtained a certified translation (Polish to English) of a Medical Summary describing her treatment and condition, at some point between 9 October and 16 October (the latter date being the date of the translation); she sent that document to the Respondent.[15]It belatedly became clear to Mr Murtagh at some point in November 2018 that the Claimant had not been informed, or at least had not received notice of her dismissal.[16]On 22 November 2018 he emailed the Claimant referring to an attached letter, to the parties believing termination would be best and to her right to appeal this decision. The attached letter was a letter of dismissal, which included a paragraph that the Claimant “was entitled to receive 2 weeks’ - 3 - [notice] from 10/10/18 of termination of your employment … We therefore confirm that the date of termination of your employment will be 24th of October.”[17]The Claimant responded within an hour, simply attaching the translated Medical Summary I refer to above.[18]By 29 November the Claimant had obtained an informal translation of Mr Murtagh’s 22/11 email, but not of the attached letter. She obtained a translation of the dismissal letter only some weeks into December 2018.[19]The Claimant appealed her dismissal. The appeal was heard by Mr Murtagh in January 2019 (which he accepts was not appropriate for him to hear, but again had been advised that the Respondent was not under a legal obligation to follow correct procedures) and was rejected.
The law
[20]The relevant statutory provisions of the ERA 1996 are ss. 86, 108, 212.[21]The effect of those provisions was common ground between the parties.[22]In Gisda Cyf v Barratt the Supreme Court confirmed that the test for determining the effective date of termination for the purposes of s. 108, in circumstances where the employer dismisses an employee by written letter but the employee does not receive or read that letter at the earliest conceivable opportunity, is to decide when the employee “had a reasonable opportunity to discover the contents of the letter sent to her by her employer”.
Discussion
[23]Applying the Barratt judgment to the facts of this case, I find that the Claimant had the necessary reasonable opportunity to open and have translated (sufficiently at least for her to know the primary effect of its contents) the dismissal letter attached to Mr Murtagh’s 22/11 email by no later than 28 November 2018. - 4 -[24]I take into account in particular:- 24.1. The Claimant was known to be recovering from knee surgery some weeks prior; 24.2. She was known to have only basic English (she required full interpretation assistance throughout today’s hearing); 24.3. She knew her continued employment was under threat; and 24.4. She had been able, in all of the above circumstances, to obtain a full certified translation of a document of similar length within a week.[25]Based on that deemed date of notice of dismissal on 28 November, I determine that the actual letter of dismissal, when read, informs the Claimant of a dismissal already having taken effect so far as her employer is concerned; therefore of a dismissal which, so far as the Claimant is concerned, takes effect on the date she is deemed to have read the dismissal letter: 28 November 2018.[26]The effect of s. 86(1)(a) is that the effective date of termination for the purposes of s. 108 is extended by one week, to 5 December 2018: see eg Harper v Virgin Net Ltd [2004] IRLR 390.[27]That means that the Claimant had, by a few days, less than two years’ continuous employment at the deemed date of her dismissal.[28]I record finally that it seems plain, and the Respondent seemed to accept this, that the Claimant has not been and should be paid for the period starting from the date up to which she was paid (either 18 or 24 October 2018; there was a lack of clarity on that) until 20 December 2018, being her admitted four week contractual notice period following the date on which she received the 22 November email attaching the dismissal letter. I trust that omission will be swiftly repaired. - 5 -