Ms O Odutayo v Compass Group UK & Ireland Ltd: 2304998/2021
JUDGMENT
The claim of unfair dismissal is dismissed as the claimant does not have the necessary qualifying period of employment with the respondent.REASONS
The claimant and Mr Byrne were in attendance at the hearing. The respondent had provided a bundle of documents and written submissions. The claimant provided further documents for consideration. Reference in the judgment to page numbers is to pages in the bundle unless otherwise stated.Findings of fact
[1]The claimant commenced employment with the respondent on 5 or 6 March 2020 in the position of a customer services assistant [55-57].[2]Within the particulars of the attachment to the ET1 claim [14-15], the claimant claims that she was dismissed from her position by the respondent. At the hearing, she said she was dismissed by Ms Denise Spillane on 11 June 2021 by telephone. The claimant states her belief that she had been dismissed in an e-mail on 11 June 2021 [84]. The respondent’s position is that that the claimant has not been dismissed, which is supported by the claimant’s line manager clarifying this to her via e-mail on 21 June 2021 [81-82]. Case Number: 2304998/2021 2 of 2[3]The respondent considers that she remains employed on a 0-hour contract which the claimant agreed to on 17 August 2020 [66] and which took effect on 1 September 2020 [67]. The claimant also stated within the ET1 claim form that she accepted the offer of a 0-hour contract [14]. She disputed this at the hearing. This is supported by the evidence that the contract director requested discussions regarding the claimant’s availability for work on the 3 and 13 December 2021 [88-90].Law
[4]The right to claim unfair dismissal is set out in section 94 of the ERA which provides: (1) An employee has the right not to be unfairly dismissed by his employer.[5]Section 108 provides: Exclusion of right Qualifying period of employment (1) Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than [two years] ending with the effective date of termination. Discussion and decision[6]The claimant thought that the two-year qualifying period did not apply to her as she was a whistleblower. The Tribunal examined all the material available to it and noted that this contention was only made at the hearing. The substance of the complaint was one of “ordinary” unfair dismissal. The qualifying period does apply to her.[7]The Tribunal considered that the respondent’s argument that the claimant remains employed and thus the Tribunal has no jurisdiction to hear her claim of unfair dismissal on those grounds was correct. The Tribunal also addressed the claimant’s claim taking it at its highest. It considered what the position would be if the claimant was correct that she was dismissed on 11 June. Her claim was not submitted within 3 months of the dismissal. Further as she was employed on 5 or 6 March 2020 and submitted her ET1 claim form on the 30 September 2021, at the time of submitting her claim, the claimant had a length of service of 1 year and 6 months or 1 year and 3 months as at the date she said she was dismissed.[8]The claim falls to be dismissed. __________________________ Employment Judge Truscott QC 18 August 2022 Case Number: 2304998/2021 1 EMPLOYMENT TRIBUNALS Claimant Respondent Ms O Odutayo v Compass Group UK and Ireland Limited[9]For the purpose of the judgment, the Tribunal reviewed the evidence provided. As narrated in paragraph 1, material was provided by the claimant. This consisted of at least six separate emails from the claimant with varying numbers of attachments. Whilst a large number of references to various wrongs made to the claimant are made, there is no reference to making a protected disclosure. That, in itself, does not mean there is no such claim. The Tribunal examined the grievance of 13 March 2021 and its outcome and considered whether the claimant made a qualifying disclosure of information to the respondent that, in the reasonable belief of the claimant, tended to show one of the instances in section 43B of the Employment Rights Act 1996 has taken place or is likely to take place. The Tribunal also asked itself the same question in relation to the date of dismissal relied on by the claimant which is described as arising from a request for flexible working. The dismissal is said to have occurred in a 1 minute 21 second telephone conversation with Ms Spillane on 11 June 2021.[10]The Tribunal also noted that the ET1 claim made by the claimant claimed unfair dismissal based on bullying and harassment, unfair treatment and goes on to incorporate her email to the respondent headed unfair dismissal/constructive dismissal and dated 9 July 2021. The Tribunal particularly considered point 10 of the email which the claimant relies on to claim that she was dismissed. Although that was her claim, the Tribunal also considered whether if viewed from the standpoint of constructive dismissal, any different decision would be reached and concluded that it would not. Case Number: 2304998/2021 4[11]As the claimant insisted that she had been dismissed, and the Tribunal could not identify that the dismissal was causatively linked to any complaints made by the claimant that would amount to a protected disclosure, she requires to have the qualifying service for unfair dismissal which she did not. It does bring about the odd state of affairs where the respondent still considers her to be employed but parties do not seem to be able to agree a work pattern.[12]The Tribunal considered the letter of 14 September 2022, to see if it contained any material which would cause it to reconsider the judgment, it did not.[13]In paragraph 7, the Tribunal commented that the claim was out of time in any event. This is not correct. Because of the involvement with ACAS, the period for lodging the claim is extended and the claim is in time. This does not affect the judgment of the tribunal that the claimant has insufficient service to claim unfair dismissal.[14]The claimant is dissatisfied with the outcome but the facts and the relevant issues were fully explored and the legal tests applied. There is nothing in what is now said which indicates that it is in the interests of justice to re-open matters. The Tribunal considers that there are no grounds for revisiting the judgment within the scope of its powers of reconsideration under Rule 70 of the Employment Tribunal Rules of Procedure 2013.[15]The claimant’s application for reconsideration of the judgment dated 18 August 2022 is refused because there is no reasonable prospect of the original decision of the Tribunal being varied or revoked.