Ms T Nurjandoa v Emma Wilson Urban Spa Ltd: 2304167/2024
JUDGMENT
(1) The Claimant was unfairly dismissed and is entitled to £2,302.82 by way of compensation for unfair dismissal.(2) The Claimant is entitled to an award of £354.28 pursuant to s.38 Employment Act 2002 because she did not have a statement of employment particulars when the proceedings were begun.(3) The total award to which the Claimant is entitled is £2,657.10(4) The claim for a redundancy payment is dismissed.REASONS
[1]This is a claim for unfair dismissal and a redundancy payment which the Claimant brought by way of a Claim Form lodged on 8 May 2024. Both parties were effectively unrepresented, Emma Wilson (EW) being the owner and sole director of the Respondent, and had not lodged any witness statements or documents prior to the hearing. As a result, although some evidence, mainly in 1 of 6 the form of email correspondence and pay slips, was submitted during the hearing, some of the details of events was patchy and uncertain.[2]Nevertheless, on the basis of the evidence before me I make the following findings of fact.Facts
[3]EW owns and operates two spas located in Tulse Hill and Streatham High Street.[4]The Claimant was initially employed by the Respondent for a brief period in 2018. In about October 2019 she commenced employment with the Respondent again, working as a receptionist, although during her employment she completed a nail qualification and provided nail treatments.[5]The Claimant never had a written contract of employment, but it was agreed she would be paid the National Living Wage and at the date of her dismissal she was working 17 hours per week at the spa in Tulse Hill, split over two days, namely Thursdays and Saturdays. The Claimant also had another part-time job, working three days a week (Tuesday, Wednesday and Friday) in an estate agent.[6]The Tulse Hill spa was open five days per week, from Tuesday to Saturday. Another part-time receptionist, Alex, also worked there. The hours that Alex worked were unclear and seemed to vary; apparently, they had been reduced (at Alex’s request) prior to the Claimant’s dismissal to working two half days at the salon in Tulse Hill as well as covering Mondays at the Streatham High Street Spa, which was open six days a week. Alex had been employed by the Respondent since about April or May 2021, and, like the Claimant, also did nail treatments. I was told Alex had a written contract of employment but that was not before the Tribunal. Due to lack of cover, the Tulse Hill Spa sometimes operated without anyone being on reception.[7]A third receptionist, Laura, was employed five days a week at the Streatham High Street Spa. EW said that as well as being a receptionist Laura also did marketing. Apparently, she also had a written contract of employment, although again this was not before the Tribunal. Laura was also paid the National Living Wage.[8]On 4 January 2023, while at work, EW told the Claimant that she was going to have to let her go to save costs and that she would receive an email about that later the same day. Later that day the Claimant did receive an email which gave her four weeks’ notice and stated: “Due to lack of staff members the company has been forced to reduce costs including downsizing the reception and hours are being cut since therapists are also cutting down their hours. Unfortunately, this means we can no longer continue your employment.”[9]EW stated, and I accept, that the Claimant would have been aware that the Respondent was having some financial difficulties, however this was the first 2 of 6 time EW had taken steps to reduce staff costs by making redundancies or reducing staff hours.[10]The Claimant stated, and I accept, that she did not immediately speak to EW about her decision as she wanted to find out more about the legal position first.[11]On 26 January 2023 the Claimant emailed EW saying she wanted to have a meeting with her before her notice period came to an end.[12]The Claimant had a meeting with EW on the last day of her employment, which was 1 February 2023. There are no notes of that meeting. EW’s evidence, which I accept, was that she told the Claimant she had made her redundant because she had another job, whereas Alex was a single mother, that they had both been employed a long time, and that Alex had more clients in respect of her nail treatments and generated more revenue for the business than the Claimant.[13]On 15 February 2023 EW made an offer of employment to a receptionist called Fransys. The email states ‘we can officially offer you work Fridays to start off with and more hours to be added once we are able to resolve therapist working hours’. EW said in evidence that she needed a receptionist on Fridays because it was the busiest day in the Tulse Hill spa and that the Claimant wouldn’t have been able to work on Fridays because of her other job. She did accept in evidence, however, that Fransys ended up working more hours than just Fridays, and sometimes worked Saturdays – which was also a busy day.[14]On 23 February 2023 the Claimant emailed EW to say she did not agree with the reasons she had been given for redundancy, namely that a staff member was reducing her working hours, because the staff member in question had only reduced her hours by about 5 hours, and although the business was short of therapists, she knew that EW had been holding interviews for new ones. Furthermore, there had been no formal communication or consultation with any of the three receptionists about downsizing the receptionist function and she herself had not had a single meeting to discuss the situation prior to being dismissed. Also, she had been let go instead of a more junior staff member who had not been employed for as long as the Claimant. Further, the Claimant pointed out EW had not even paid her a redundancy payment as at the meeting she had told the Claimant she did not consider this a redundancy but more a “termination of employment”.[15]On 29 February 2023 EW emailed the Claimant to say she had taken legal advice and that she accepted the Claimant was entitled to a redundancy payment. The email further stated that in several team meetings she had explained that the Respondent had lost three therapists during the last year, and as of January there had been a reduction of 90 staff hours per week, resulting in a huge loss of revenue. Further the Claimant had another job, which the other receptionist didn’t have, and, due to that job, the Claimant didn’t have the flexibility to change her hours. Also, the other receptionist outperformed the Claimant in retail and service revenue.[16]The Claimant gave evidence that after her dismissal she attempted to find other jobs, and I was shown some job applications made on Indeed. These were dated in July 2023, however I accept the Claimant started her job hunt soon 3 of 6 after she was dismissed but cannot now access evidence of this on her Indeed account. She stated, however, that she had not asked if she could work extra hours or days at the estate agents and that she had not used a recruitment agency to find work. She had not found a replacement job as such but did some cleaning work on Mondays, and also some delivery work. She had also done a course in waxing and wanted to build up a cliental but felt she did not yet have enough experience to charge very much. She had not applied for any nail jobs because she thought most places would require qualified therapists and she had not applied for hospitality work.[17]I was made aware that there were some attempts between the parties to settle this matter but they were unsuccessful and the claim has obviously progressed to a hearing.Conclusions
[18]In a claim of unfair dismissal, the employer must first show that the reason for dismissal was a potentially fair reason within s.98 Employment Rights Act 1996 (ERA). Redundancy is such a potentially fair reason, and redundancy is defined in s.139 ERA as including the situation where the requirements of a business “for employees to carry out work of a particular kind have ceased or diminished”.[19]On the facts of this case I accept there was a redundancy situation, in that I accept that there had been a reduction in the number of hours the spa therapists were working, which meant there had been a reduction in revenue with the effect that EW had come to the decision she needed to save costs by reducing the number of hours for which she employed a receptionist.[20]However, for a dismissal on grounds of redundancy to be fair, the employer must normally warn and consult any employees affected or their representative, adopt a fair basis on which to select for redundancy and take such steps as may be reasonable to avoid or minimise redundancy by considering alternative employment within the organisation.[21]In the present case EW appears to have proceeded on the basis that the “pool” from which she was going to select for redundancy comprised the two receptionists at Tulse Hill, namely the Claimant and Alex, and did not consider including Laura (at Streatham High Street). Given that, unlike the others, Laura was employed on a full-time basis and apparently also did marketing work, this may well have been a reasonable approach. However, EW then selected the Claimant for redundancy over Alex, without explaining the criteria upon which she was doing so and giving the Claimant the opportunity to respond to those criteria or EW’s assessment of them, or indeed without any consultation at all. To the contrary, the Claimant was simply informed that a decision had been made that her employment was being terminated. Further, although the Claimant, at her request, had a meeting with EW, that meeting took place on the last day of her employment by which date the decision to dismiss had been made and there was no realistic prospect of that decision changing.[22]I therefore find that the redundancy procedure followed by EW was unreasonable and unfair and that the claim for unfair dismissal succeeds. 4 of 6[23]As regards compensation, since the Claimant has been paid a redundancy payment she is not entitled to a basic award of compensation (s.122(4)(a) ERA).[24]As regards a compensatory award of compensation, EW argued that even if a fair procedure had been followed it would have made no difference because the Claimant would have been dismissed anyway.[25]I am not satisfied this is the case.[26]If there had been meaningful consultation, and EW’s selection criteria explained to the Claimant, the Claimant would have been able to emphasize the fact that she had been employed by the Respondent considerably longer than Alex, and also there could have been a discussion about their respective qualifications and the revenue they generated. More importantly, it’s plain that EW still had a need for more receptionist work at Tulse Hill than that done by Alex because only two weeks after the Claimant’s dismissal she offered Fransys work on Fridays, and Fransys ended up, on occasions, also doing some work on Saturdays and other days. While EW assumed the Claimant would not have been able to work on Fridays because of her other job, this was never discussed formally with the Claimant. It may be that had a proper consultation happened, the Claimant would have been able to change her working days at the estate agent so she could work on Fridays and/or that some arrangement between EW, Alex and the Claimant would have enabled the Claimant to retain some or all of her hours.[27]As regards the level of compensation to which the Claimant is entitled, I have come to the conclusion she should be awarded a further 3 months’ loss of pay. I am satisfied the Claimant made some efforts to mitigate her loss but I also consider there was more she could have done and consider she could reasonably have been expected to find 17 hrs work per week at the National Living Wage rate within a period of 3 months (13 weeks).[28]Since the Claimant was paid £10.42 per hour and worked 17 hrs per week, she is entitled to £2,302.82 by way of compensation for unfair dismissal (namely 10.42 x 17 x 13).[29]Further, since the Claimant did not have a statement of employment particulars at the time these proceedings were begun, pursuant to s.38 Employment Act 2002 I must increase the Claimant’s award by two weeks’ pay and may increase that award by four weeks’ pay (unless there are exceptional circumstances which would make that unjust or inequitable).[30]I have decided it is appropriate to increase the Claimant’s pay by two weeks’ pay because I accept the Respondent is a very small company without any human resources function or much understanding of employment law. I also note that the Claimant does not appear to have asked EW for a contract of employment at any time.[31]The Claimant is therefore entitled to a further award of £354.28.[32]The claim for a redundancy payment is dismissed because the Claimant has been paid her redundancy pay. 5 of 6 Approved By: