Mr Jose Antonio Gomez Cuellar v Tenon FM Ltd: 2206698/2018 Mr Jose Antonio Gomez Cuellar v Tenon FM Ltd: 2206698/2018

EMPLOYMENT TRIBUNALS

Case No 2206698/2018

Between

Mr Jose Antonio Gomez CuellarClaimant

Tenon FM LtdRespondent

Before

Employment Judge O Segal QC

Miss N Mallick (instructed by Counsel) for respondent

Date 29 May 2019

JUDGMENT

The judgment of the Tribunal is that the Claimant’s claims are dismissed as being out of time.

REASONS

[1]The Claimant brings claims of unfair and wrongful dismissal.

[2]It was agreed that I should deal with the question of whether the ET has jurisdiction to consider those claims as a preliminary issue, without oral evidence – it being the Respondent’s case that the claims were presented out of time.

[3]What follows are the reasons for my finding that the ET does not have jurisdiction. - 1 -

Evidence

[4]There was an agreed bundle of 120 pages. I also considered parts of the Claimant’s witness statement as directed by the parties, although, as stated, there was no oral evidence.

Facts

[5]There were few if any disputed facts as regards this issue.

[6]The Claimant was latterly employed by the Respondent as a cleaner, working at the material time mainly at the site of a company I shall refer to as CBRE, but secondarily (for only 1.5 hours a week) at another company based at the same premises, which I refer to as Badarra.

[7]There was no contract of employment, but from the Respondent’s Staff Handbook and a few other documents, I find the following were material terms of the Claimant’s employment (none being in dispute): 7.1.The Respondent was not obliged to offer any particular hours of work to the Claimant. 7.2.The Claimant was obliged to undertake reasonable hours of work offered, provided they were within reasonable travel distance; and given that proviso the Respondent could determine where the Claimant worked. 7.3.The Respondent was entitled to remove the Claimant from a contract at the insistence of the client. 7.4.The Claimant was entitled to 12 weeks’ notice of dismissal

[8]CBRE was unhappy with the Claimant’s performance and required his removal from the Respondent’s contract with it, as a result of which, at a disciplinary hearing in February 2018 and in correspondence following: 8.1.The Claimant was removed from that contract and given a written warning. 8.2.The Respondent offered but did not require the Claimant to undertake two alternative part-time roles in Piccadilly Circus and Kensington High Street. - 2 - 8.3.The Respondent instructed the Claimant to continue working at Badarra 1.5 hours a week.

[9]The Claimant did not take up the offer of the new part-time roles and, reasonably, declined to work at Badarra given the travel costs that involved. The latter decision was not in terms addressed by the Respondent with the Claimant, as a conduct issue or otherwise.

[10]It was left in any event at that time that the Respondent would continue to look for replacement full-time work for the Claimant, there being none available in February/March.

[11]On 11 April 2018 the Claimant was sent a payslip showing nil earnings. As a result he approached his trade union, who wrote that day to the Respondent stating (erroneously) that the Claimant was currently suspended and therefore was suffering unlawful deductions of wages.

[12]Despite being chased, the Respondent did not reply to that until 29 May 2018, by which time the Claimant had received another nil payslip on 11 May 2018.

[13]Also on 11 May 2018, the Respondent completed a P45 for the Claimant showing that date as the termination of his employment. The Respondent contends that P45 was sent to the Claimant. There is no objective evidence of its being sent and the Claimant states he did not receive it; I find he did not – it is not plausible that what happened thereafter would have happened had he received a P45.

[14]In the Respondent’s 29 May letter, it responded to the points raised in the union’s letter of 11 April; but it is silent as to the Claimant’s continued employment status (or as to the Badarra situation) – perhaps because the Respondent by this time assumed the Claimant was well aware his employment had come to an end, having sent him a P45.

[15]The Claimant and his union did not further communicate with the Respondent until 31 July 2018 (perhaps because during that period the Claimant was suffering significant ill health), but on that date his union wrote, oddly, stating “… the 1st time that Jose find out that he was dismissed was when you send the below email on the - 3 - 29th of May. In April and May he received payslips from Tenon in £0 … he suffered a facial paralysis in May 2018”.

[16]By the date of that letter, the Claimant and his union knew that the Claimant had not received any payslip in either June or July.

[17]There was no further communication, then, until the Claimant’s union wrote on 29 September 2018 seeking urgent clarification of the Claimant’s employment status. The Respondent replied on 9 October 2018 stating that following the events of February/March the Claimant had been dismissed “after 3 months of absence” – the dates do not quite add up with the P45.

[18]In the meantime, invisibly to the Respondent:- 18.1. In August, on his union’s advice to look for alternative employment “because it was important to show that I could work and maintain myself”, the Claimant obtained part-time employment elsewhere from 18 August 2018. 18.2. On 16 August 2018 the Claimant applied for (and on 31 August 2018 received) an Early Conciliation Certificate in respect of an unfair dismissal claim.

[19]The Claimant applied for a second EC Certificate on 10 October, which was issued on 10 November 2018. This claim was presented on 19 November 2018.

Law

[20]S. 95 ERA 1996 provides that for the purposes of unfair dismissal claims, an employee is dismissed if his employment contract is terminated by the employer ((1)(a)), or by the employee in circumstances in which he is entitled to terminate it without notice ((1)(c)) – the latter provision is not relevant here, although the Respondent sought to rely on it in the alternative.

[21]It is common ground that for anything relied on by an employer to constitute (or to form part of what constitutes) a dismissal, it must be communicated to the employee.

[22]The conduct of either the employer and/or the employee may lead to a finding of dismissal or resignation: see e.g. Harrison v George Wimpey and Co Ltd [1972] ITR - 4 - 188, NIRC; and – germane to this case – one such example was identified in Kirkless MBC v Radecki

[2009] ICR 1244

, CA, where the employer removed the employee from the payroll.

[23]Whether the act(s) under consideration are words spoken, words written or conduct, if there could be said to be ambiguity as to their meaning, the test is an objective one – what the ordinary reasonable employer/employee would understand by the words used or the conduct in question, given all the surrounding circumstances: see e.g. Chapman v Letheby and Christopher Ltd

[1981] IRLR 440

, EAT; Radecki supra. The parties’ submissions 17. The Claimant’s case is that his employment status was entirely unclear until the Respondent’s letter of 9 October 2018: there was no express dismissal; he did not receive the P45; he was waiting for the Respondent to identify alternative full-time employment. 18. In the alternative, he says that it was not reasonably practicable to issue in time (assuming a termination in May or June) because of(a) the confused situation and/or

(b) his poor state of health during the summer of 2018 (he left the house rarely prior to getting employment in mid-August because of his facial paralysis). 19. The Respondent’s case is that the combination of the correspondence until 29 May 2018, not issuing a payslip in June 2018, together with the Claimant not attending for work and not communicating with the Respondent except about prior unlawful deductions, is enough to constitute a dismissal by words and/or conduct, alternatively a resignation.

Discussion

[24]This is not a straightforward case. Two particularly complicating factors are: 24.1. The Respondent sent a P45, which for reasons unknown was not received by the Claimant. 24.2. The Claimant’s union representative records that the Claimant (presumably as well as himself) understood – at least by 31 July 2018 – that the - 5 - Claimant had been dismissed; yet at today’s hearing the Claimant’s case was in effect that this was an unfounded interpretation of the correspondence/conduct of the Respondent.

[25]In the end, I conclude that the Claimant’s employment terminated on or before 11 June 2018 and therefore (as is agreed) his claims are out of time. I so find for the following reasons, in summary (all dates are in 2018):- 25.1. As at 5 March the Claimant was required to work at Badarra, but never attended to do so. Moreover, the Respondent did not take that matter any further. 25.2. Thereafter the Claimant did no work, received no pay and was not in any communication, prior to 31 July, with the Respondent except to query unlawful deductions from his wages in April. 25.3. The Claimant did not complain about not getting any pay on 11 May. 25.4. The Respondent did not send the Claimant a payslip on 11 June.

[26]It seems to me that by 11 June the conduct of the parties was sufficient to demonstrate a common understanding that the employment contract had terminated, either then or prior to that date – as was confirmed, subjectively: 26.1. By the Respondent in sending the P45; 26.2. By the Claimant in the 31 July letter and in approaching ACAS and obtaining alternative employment in August.

[27]Whether, as a matter of strict legal analysis, there was a dismissal or a resignation constituted by that conduct, is moot. If pressed, I would say that the Claimant was dismissed by the Respondent confirmed by removing him from the payroll by 11 June.

[28]As to the issue of reasonable practicability: 28.1. The alleged confusing situation either justifies finding no termination at the time I find it to have happened, or was not in fact so confusing as to - 6 - constitute making it not reasonably practicable for the Claimant to have issued his claims in time. 28.2. As to the Claimant’s ill health, it appears the Claimant was able to deal with his union representatives in May, July and August, and was able to take up part-time employment in August. It cannot be said that it was not reasonably practicable for him to have issued a claim before 10 September, say, in those circumstances.

[29]I make the following final observation (as I did to the parties orally). It is not clear to me that the Claimant would have had a financial claim in any event based on an assumed termination date of 9 October 2018: 29.1. As to the basic award, whether one calculates a “week’s pay” in accordance with ss. 221-223, or with s. 224, it would appear to be nil and therefore the basic award would be nil. 29.2. As to the compensatory award, unless the Claimant were able successfully to challenge the Respondent’s evidence that there was no work available to offer him other than the work which was offered to him, that too would be at best speculative. Moreover, the Claimant has first in August and then additionally in December substantially mitigated any loss of earnings, such that only if the Respondent were found to have been in a position to offer full-time work such as he had been performing until February could there have been any loss at all from 9 October.