Mr K Moore v Parcel Power Logistics Ltd: 2400726/2024

EMPLOYMENT TRIBUNALS

Case No 2400726/2024

Between

Mr K MooreClaimant

Parcel Power Logistics LtdRespondent

Before

Employment Judge Hill

Date 12 August 2024

JUDGMENT

[1]2.

[6]The Claimant’s Claim for automatic unfair dismissal fails and is dismissed The Claimant’s claim for wrongful dismissal is well founded and the Respondent shall pay £450.90 equivalent to 1 weeks’ notice pay in compensation The Claimant’s claim for breach of contract by failing to make pension payments is well founded and the Respondent shall pay £321.87 in compensation The Respondent shall pay £901.80 equivalent of two weeks pay for failure to provide a main statement of terms and conditions The Claimant’s claim for accrued outstanding holiday pay was conceded by the Respondent and it was agreed the Respondent shall pay £1503.00 The Respondent shall pay a total of £3177.57 in compensation to the Claimant.

REASONS

[1]JUDGMENT having been sent to the parties and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:

Introduction

[2]The Claimant brought claims by way of an ET1 dated 2 February 2024 of automatic unfair dismissal, unlawful deduction of wages, outstanding holiday pay, wrongful dismissal and breach of contract.

[3]In the Respondent's ET3 the defence set out by the Respondent was that the Claimant had less than 2 years services and was therefore not entitled to claim unfair dismissal. The ET3 stated “Mr Moore’s employment was terminated due to the fact that he had been found to have made antisemitic comments to another member of staff. Any offers of future employment under different conditions were also withdrawn. As the Claimant had been in our employ for less than two years, short service dismissal laws mean he is not entitled to any redundancy or compensation. Further we are not required to give a reason or notice period as no discriminatory reason or protected characteristic was involved. ........ Mr Moore was not dismissed for requesting holiday.” Case No. 2400726/24 2

[4]The Respondent position today was that the Claimant not an employee and resisted all claims other than the holiday pay claim where it agreed some holiday pay was outstanding at the date of termination but there was no agreement on the amount payable. The evidence before the Tribunal today in the form of a witness statements from Mr Randall and Mr April state that Mr Moore was not an employee and that he was self-employed or at the most a worker.

[5]It was therefore agreed that the issues for the Tribunal to determine were:a. Was the Claimant an employee?

b. If so, what was the reason for his dismissal i. The Claimant says that it was an automatically unfair one in that he had asserted his statutory right to holiday pay ii. The Respondent says that he was dismissed for gross misconduct in that he made an antisemitic remark to a colleague.

c. If the Claimant was dismissed for asserting a statutory right, was he automatically unfairly dismissed?

d. If he was dismissed for making an antisemitic remark and or using an aggressive tone did that amount to gross misconduct entitling the Respondent to dismiss the Claimant without notice?

e. How much holiday pay was the Claimant entitled to? and

f. Did the respondent make unlawful deductions by failing to make payments in relation to pension payments,

The Evidence

[6]The hearing was conducted by CVP.

[7]The Tribunal was provided with a bundle of documents number 1-87 some additional documents were provided and the Claimant had recordings of voicemails which were not transcribed and therefore not considered as there was no facilities to hear them. The Tribunal considered that the Claimant was in a position to have disclosed and provided any significant written transcription prior to the hearing in accordance with the order. A schedule of loss from the Claimant.

[8]Written witness statements were provided, and the Tribunal heard oral evidence from, Mr Randall, Transport Manager, Mr White an employee of the company and Mr April Director of the Company on behalf of the Respondent and the Claimant also provided a written witness statement and gave oral evidence. Relevant Findings of Fact

evidence.

[9]The Respondent is a Parcel Delivery company. The company is run by Mr. Randall and Mr. April who are business partners. Mr. Randall is the Transport manager and responsible for employing all staff. Mr. Randall confirmed during evidence that at the time the Claimant was employed they employed 4 drivers (1 Class 1, 2 class 2 and a van driver) and Mr. Moore, Class 1 driver. Since Case No. 2400726/24 3 the Claimant’s employment ended, the company have now employed another Class 1 driver who Mr. Randall confirmed was an employee and full-time. Mr. Randall also confirmed that during the period the Claimant worked at the company there had been no concerns about the Claimant’s work and that nothing of concern had come to his attention until his termination.

[10]The Claimant began working for the Respondent on 30 July 2023 after enquiring about job vacancies via email. Initially, the Claimant had completed one shift through an agency before directly contacting the Respondent. He was informed of a part-time vacancy offering £16 per hour, which he accepted. The Claimant typically worked two long shifts each week, as confirmed by Mr. Randall. Payments of varying amounts depending upon the number of shifts he had done were made weekly into the Claimant’s bank account, and the Respondent provided a statement showing consistent weekly payments, including for additional shifts at this hearing. The Claimant did not receive a formal employment contract, was not required to provide any information other than his bank account details, and did not receive pay slips. The Claimant was not asked to provide a National Insurance (NI) number, and the Claimant believed that the Respondent had received all his relevant information from the agency and did not question why his NI number was not requested.

[11]Throughout his employment, the Claimant regularly worked from Tuesday to Thursday and occasionally took on additional shifts. He adhered to company rules and was provided with necessary equipment, including a tractor unit, trailer, fuel card, and insurance, all covered by the Respondent. The Claimant reported to the Transport Manager, Mr. Randall, and followed company procedures for log-in details, vehicle checks, and wore a uniform. Discussions about the Claimant transitioning to full-time employment occurred, but he was never informed that he was considered self-employed or a worker. The Claimant always believed he was an employee and, although he could turn down additional shifts, he was required to work his regular shifts and had a regular milk delivery shift and Mr Randall’s evidence was that the Claimant had ‘fixed shifts’.

[12]The Claimant did not receive any pay slips from the Respondent but now understands that no payments were made to a pension scheme and that he was not auto enrolled into any pension scheme. The Respondent accepts that no payments were made but stated that this was because he was selfemployed. As far as findings for this Judgment are concerned it is clear that the Claimant was not auto enrolled and no payments were made. The Respondent confirmed during evidence that the pension provider was NEST with an employer contribution of 3%.

[13]In late November to early December 2023, the Claimant requested holiday leave between 11th – 26th December 2023. The Claimant was informed that he would receive one week’s holiday pay. Given his short tenure (four months at that time), lack of a formal contract, and no information on holiday entitlement, the Claimant was unaware of his accrued leave on that date and was pleased that he was given some paid leave. Case No. 2400726/24 4

[14]It was also agreed that he would move to full-time employment in the New Year. On 18 December 2023, the Claimant had not received his holiday pay and contacted Mr. Randall via WhatsApp and voice mails. Mr. Randall assured the Claimant it was being processed by Mr. April. On 19 December, Mr. Randall followed up, and the Claimant confirmed he had not received the payment, leading to further communication with Mr. April, who was unavailable due to a family event. The Claimant was understandably frustrated and wanted to know when payment would be made. Mr. Randall perceived the Claimant’s tone as increasingly aggressive regarding the payment, which he did not consider overdue and was trying to resolve. The messages between the parties on 18th and 19th December demonstrated that the Respondent was not disputing holiday pay was owed or that it did not intend to make the payment. The Tribunal notes that payment was not made at the time.

[15]The Respondent observed all Jewish holidays, requiring staff to take mandatory leave during these times. Additionally, staff could take other holidays as suited them and the business. The evidence from the Claimant, Mr. Randall, Mr. White and Mr. April indicated that it was not clear what holidays were routinely given to employees. Mr. White did not have a contract of employment, but it was agreed that many of the Jewish holidays were mandatory and that there was additional holiday allowed to be taken freely. The Respondent provided details of the Jewish holidays for 2024, and it was agreed at the hearing that the total number of mandatory holidays was 23, with an additional 14 days, totaling 37 days per annum. The Claimant had accrued 10 days by the termination date, and the Respondent agreed to make payment for these days.

[16]On 19 December, during the period Mr. Randall was in communications with the Claimant, Mr. Randall had a conversation with Mr. White, a full-time driver, who reported that the Claimant had spoken to him about holidays and had referred to the Jewish holidays as “weird” holidays and would take all of them as well as paid leave and then using his holiday entitlement separately. Mr. White perceived this comment and the Claimant’s tone as racist. The Respondent, particularly Mr. Randall, considered the Claimant’s statement to Mr. White as antisemitic but did not investigate or address the issue with the Claimant.

[17]Mr. White stated that the Claimant’s tone was racist, and he took the comment to be racist. He said he was concerned enough to raise the issue with Mr. Randall and that as he remembers it was between 7.00pm and 9.00pm on 19th December but could not give an exact time. The Tribunal found Mr. White to be a convincing straightforward witness with no reason to lie. Mr. Randalls evidence was that the conversation took place before his last text to the Claimant which agreed with the timings given by Mr. White.

[18]At 20.22 on 19th December 2024 the Respondent, Mr. Randall messaged the Claimant via WhatsApp and said, “Hi Kev unfortunately due to a downturn in work we will not be requiring your services…..’ The Claimant was therefore dismissed on 19th December and did not work for the Respondents again. The Respondent said that the Claimant had made what his considered was a racist comment about the Jewish holidays and that coupled with what he considered the Claimant’s increasing aggressive in his tone over the holiday pay issue was Case No. 2400726/24 5 the reason for his dismissal. Mr. Randall’s evidence was that he did not want a confrontation, which is why he stated the reason in the WhatsApp messages was due to a downturn in work.

[19]The Claimant did not receive his holiday pay or payment into a pension scheme.

[20]The Tribunal finds that based on the above facts the Claimant wasa. An employee of the Respondent and not a worker or self employed

b. He was not enrolled into a pension scheme and payments to a pension were not made and therefore the respondent made unlawful deductions from the Claimant’s wages

c. The Claimant did not receive holiday pay and was entitled to 37 holidays per year and at the date of termination he was entitled to 10 days accrued holiday.

d. The reason or principal reason for his dismissal was the perceived antisemitic comment made to Mr. White and reported to Mr. Randall at or around 8.00pm on 19th December 2023.

e. The alleged conduct did not amount to gross misconduct entitling the Respondent to dismiss the Claimant without notice. Relevant disputed evidence

[21]There was significant disputed evidence between the parties. The Respondent’s case was that the Claimant was either self-employed or a worker and fully aware of this status. The following points were raised in evidence:a. Gross Income: The Respondent claimed the Claimant was paid gross income and therefore that indicated that he was self-employed and not an employee. The Tribunal found that the Claimant did not receive wage slips, a fact that the Respondent did not dispute, and the Claimant was paid various amounts each week. The Claimant's evidence was that he was not aware that he was not paying tax and assumed the Respondent was dealing with that issue. He would send a text each week setting out his hours and would receive payment into his bank account. The Tribunal accepts the Claimant’s evidence that he was unaware that the Respondent was not deducting tax or National Insurance from his wages.

b. Ability to Turn Down Shifts: The Respondent argued that the Claimant could turn down shifts. No evidence was provided to show the Claimant ever turned down shifts. In fact, the evidence showed that the Claimant had regular shifts and would often work additional hours. This was supported by the various payments made each week and that the Claimant worked every week during his employment. The Claimant confirmed he could turn down extra shifts but was required to work his usual shifts each week, indicating part-time employment. Further the evidence showed that discussions had taken place about the Claimant working full-time in the New Year. The Tribunal noted that the messages from Mr. Randall did not refer to becoming an employee or going on their books but referred to taking up a full-time position. The Tribunal prefers the Claimant’s evidence on this point and finds that the Claimant was required to work his minimum three shifts a week and would be offered additional hours when available which could be refused. Case No. 2400726/24 6

c. Holiday Pay and the Claimant’s use of the word ‘Favour’: The Respondent relied on the Claimant’s use of the word ‘favour’ in a text between the Claimant and Mr Randall when he was told he would be paid for one week of his two-week holiday. The Respondent argued this showed the Claimant knew he was not entitled to holiday pay because he was self-employed. The Claimant, however, testified that he was unsure of his holiday entitlement due to his short tenure and lack of information, and thus considered the payment a favour because he may not have accrued 1 week at the time of the request. The Tribunal accepts the Claimant’s evidence on this point that Claimant had asked for holiday and enquired what holiday pay he might receive; the Tribunal accepts that he was grateful that at least part of his holiday would be covered by holiday pay. The Tribunal also finds that the fact Mr. Randall did not dispute the Claimant was entitled to holiday pay shows that Mr. Randall did not consider him as self-employed.

d. Agency Fee: The Respondent argued that the Claimant knew the agency would charge a fee for taking on a worker. No evidence was provided to show any fee was payable or the amount. Mr. Randall’s evidence was that both he and the Claimant were ‘aware of the conditions’ under which he was taken on. The Claimant’s evidence was that it was of no benefit to him whether a fee was paid or not. In any event if the Claimant was self-employed as alleged by the Respondent no fee would be payable. The Respondent also suggested that the Claimant’s failure to provide his National Insurance (NI) number indicated he knew he was selfemployed. The Claimant testified that he was never asked for his NI number and assumed the Respondent had all necessary information from the agency. The Tribunal found that the Respondent failed to clearly outline the terms of employment and showed a disregard for basic employment law and process and that this failure contributed to the Claimant not questioning how his pay was being processed.

e. Gross Payments: The Claimant stated that he provided his weekly hours and was paid accordingly, with varying amounts due to different allowances such as shift allowances. Without wage slips, the Claimant was unaware he was being paid a gross amount. The Respondent admitted to mistakes in hiring processes and failed to produce records of hours worked or payment calculations until requested by the Tribunal. The Tribunal accepted the Claimant’s evidence and found it reasonable for him to assume his employer was handling wage payments correctly.

f. The perceived antisemitic remark. The Claimant did not deny making the comment but said that he did not recall the conversation with Mr. White. The Tribunal accepted Mr. White’s evidence and that he informed Mr. Randall about his conversation with the Claimant on 19th December and Mr. White’s evidence that it would have been between 7 pm and 9 pm when he had finished his run and the Tribunal finds that this matches with Mr. Randall’s evidence. The Tribunal finds that the Respondent did not provide an explanation as to why it considered it to be gross misconduct and notes that no attempt was made to discuss the issue with the Claimant.

g. Reason for dismissal. The Claimant’s case is that he was dismissed for asserting a statutory right. The Respondent says that the reason given at the time was incorrect because Mr. Randall did not want a Case No. 2400726/24 7 confrontation with the Claimant but that the principal reason for the dismissal was the perceived antisemitic remark. The Tribunal finds that it is clear from the evidence that at some point during 19th December exchange of messages the Respondent went changed its position from trying to agree with the Claimant how and when payment for his holiday would be made to informing him that there was a downturn in work, and he was no longer required. The Respondent agreed that the reason given at the time was not correct and the evidence of Mr. White supports that the intervening event on the evening of 19th December 223 was that fact that he informed Mr. Randall of the conversation he had had with the Claimant. The Law Employment Status

The Law

[22]The Tribunal first needed to determine whether the Claimant was an employee under section 230 of the Employment Rights Act 1996. The Tribunal found that he was, based on several factors indicating employment:a. Control: The Respondent controlled what work was required, where, and when it was to be done.

b. Personal Performance: The Claimant was required to perform the work personally, with no right of substitution.

c. Integration: The Claimant was integrated into the Respondent’s business, working alongside other drivers and following company procedures.

d. Mutuality of Obligation: The Respondent required the Claimant to carry out regular shifts, and he was paid for them, indicating mutual obligations.

[23]Determining whether someone is an employee, or a worker/self-employed involves examining various factors that define their relationship with the employer. An employee typically works under an employment contract, which includes rights such as sick pay, holiday pay, and protection against unfair dismissal. A worker, however, has a more flexible arrangement and may not enjoy the same level of rights and benefits as an employee. Key factors considered include the degree of control the employer has over the individual, the individual’s financial dependence on the employer, and whether the work performed is integral to the employer’s business. The overall economic reality of the relationship is assessed to determine the correct classification.

[24]When determining if someone is an employee or a worker, several key factors must be considered. These include the degree of control the employer has over the individual, such as setting work hours and supervising tasks. The mutuality of obligation is also crucial, where both parties have reciprocal commitments to provide and accept work. The integration of the individual’s work into the business, indicating whether the work is a core part of the business operations, is another important factor. Additionally, the economic reality of the relationship is assessed, considering whether the individual is financially dependent on the employer or operates as an independent business. Other considerations include the right to substitution, where the ability to delegate work to others can Case No. 2400726/24 8 indicate a lack of employment status, and the provision of tools and equipment, which can suggest an independent contractor status if the individual provides their own. These factors collectively help in determining the true nature of the working relationship.

[25]Mutuality of obligation is a fundamental concept in determining employment status in the UK. It refers to the reciprocal obligations between an employer and an individual. Specifically, it means that the employer is obligated to provide work, and the individual is obligated to accept and perform that work. This mutual commitment is essential for establishing the existence of a contract. Without mutuality of obligation, there can be no contract of employment or even a contract for services. This concept is crucial in distinguishing between employees, who typically have ongoing mutual obligations with their employers, and independent contractors, who may not. Automatic Unfair Dismissal for asserting a statutory right

[26]Section 104, Employment Rights Act 1996, provides that a dismissal is considered automatically unfair if the principal reason for the dismissal is that the employee asserted a statutory right. This includes situations where the employee brought proceedings to enforce a relevant statutory right or alleged that their employer had infringed such a right. Importantly, there is no qualifying period of employment required for this protection, meaning even employees with less than two years of service can claim automatic unfair dismissal.

[27]In determining whether a person has been automatically unfairly dismissed a Tribunal must determine the reason or if more than one reason the principal reason for the dismissal. Wrongful dismissal

[28]When determining if someone has been wrongfully dismissed, a tribunal should consider whether the employer breached the terms of the employment contract and the reason for the dismissal.

[29]Wrongful dismissal occurs when an employer breaches the terms of an employee’s contract during the termination process. This typically involves dismissing an employee without providing the required notice period or failing to follow the contractual procedures for dismissal. Unlike unfair dismissal, which focuses on the fairness of the dismissal process and reasons, wrongful dismissal is strictly about whether the employer adhered to the contractual obligations. For example, if an employee is dismissed without the notice period stipulated in their contract, they may have grounds to claim wrongful dismissal.

[30]Where an employee is dismissed for gross misconduct, the Respondent must show that the reason for dismissal was conduct and that the Claimant was guilty of the misconduct. In Sekander v Rocketmill Ltd the Employment Tribunal found that Mr. Sekander was both wrongfully and unfairly dismissed despite allegations of gross misconduct. The tribunal highlighted the importance of following a fair process when dismissing an employee for gross misconduct. Case No. 2400726/24 9

[31]When determining if a dismissal qualifies as gross misconduct in wrongful dismissal claims, a tribunal should consider:a. Nature of the Misconduct: Whether the behaviour in question constitutes gross misconduct, typically involving serious offenses like theft, fraud, violence, or significant breaches of company policy.

b. Employer’s Investigation: If the employer conducted a thorough and fair investigation into the alleged misconduct, including gathering evidence, interviewing witnesses, and allowing the employee to present their side.

c. Procedural Fairness: Whether the employer followed a fair disciplinary process. This includes providing the employee with a clear explanation of the allegations, an opportunity to respond, and a fair hearing.

Conclusions

[32]I have found that the claimant was working under a contract of employment and therefore an employee of the respondent within the meaning of section 230 of the Employment Rights Act 1996.

[33]In determining the Claimant’s employment status, several relevant factors suggest the Claimant was an employee. It is evident that the Claimant was subject to a degree of control by the Respondent, who determined the nature of the work, the hours of work, as well as where and when it was to be performed. In Autoclenz Ltd v Belcher & Others

[2011] IRLR 820

, the Supreme Court emphasised that Tribunals must consider the reality of the situation. Lord Clarke stated that “the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed, and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem.”

[34]An essential requirement of any employment relationship is mutuality of obligation: Carmichael v National Power PLC

[2000] IRLR 43

. The employer is obliged to make work available for the employee, and the employee is obliged to undertake that work. Furthermore, it is permissible to consider the subsequent conduct of the parties as evidence of what they believed they had agreed upon as part of the contract. The Tribunal finds that there was a mutuality of obligations between the parties in that the Respondent required the Claimant to carry out regular shifts weekly and he was paid for them. This state of affairs persisted for the entire time the Claimant was employed, and the Tribunal finds that this amounts to mutuality of obligation between the parties. The Claimant was required to perform the work personally, with no right of substitution, and indeed, the Claimant did perform all of his work personally throughout. The Claimant was also integrated into the business of the Respondent, working alongside other drivers, using log-in details, conducting vehicle checks, and participating in discussions about full-time hours. It was clear that he was treated the same as other drivers, both positively and negatively, such as not having a formal contract of employment. Case No. 2400726/24 10

[35]I am satisfied that the arrangement reached between the parties was that of employer and employee. It is clear that the Respondent did not provide any employee with a contract of employment and that the Respondent itself referred to an employment relationship within the ET3 where it considered that as the Claimant had less than 2 years' service, he could not bring a claim. Was he automatically unfairly dismissed for asserting a statutory right?

[36]Under Section 104 of the Employment Rights Act 1996 (ERA), an employee (but not a ‘worker’) is considered automatically unfairly dismissed if the reason or principal reason for the dismissal is that:a. The employee brought proceedings against the employer to enforce a ‘relevant statutory right’ (S.104(1)(a)), or

b. The employee alleged that the employer had infringed such a right (S.104(1)(b)).

[37]My role is to determine the principal reason for the dismissal. In this case, I have found that the principal reason was the perceived anti-Semitic comment made by the Claimant and the perceived aggressive tone. The Claimant argued that the dismissal was due to asserting a statutory right, specifically related to his holiday pay. However, considering the evidence and looking at the text messages between the parties, the Respondent had agreed to grant the holiday and to make payment. I accept that the Respondent had not made the payment at the time of dismissal and the Claimant was upset by the Respondent’s lack of urgency over dealing with the issue. However, this is not a case where the Claimant ask for holiday and was refused or asked to0 be paid and was refused and then dismissed because he wanted to take holiday and be paid. Instead, the Claimant was pursuing the late payment of the agreed holiday pay, not disputing the entitlement to it. I am satisfied that the Respondent’s view of the Claimant changed during the evening of 19th December after Mr. Randall’s conversation with Mr. White. This change of view and believing him to have made antisemitic comments is in the Tribunal’s view the principal reason for ending the claimant’s employment. I accepted Mr. White’s evidence and whilst the Respondent had no documentary evidence, indeed the original reason was a downturn in work, I am satisfied that Mr. White gave honest unbiased evidence to this Tribunal that he informed Mr Randall on 19th December of his conversation with the Claimant. The timing of events fits with this evidence and there was no evidence to support the Claimant’s veiw that the reason for dismissal was the fact that he was chasing a late payment because Mr. Randall and Mr. April were engaging in those text exchanges. Whilst after the dismissal there may have been discussions by phone or text where the Respondent indicated they may not pay the amount due, I must make a determination of what was in the mind of the Respondent at the point of dismissal.

[38]Furthermore, even if the issue of holiday pay was a factor in the Respondent’s decision-making process, I have concluded based on the evidence before me that the principal reason for the dismissal was the alleged misconduct. The tribunal considered the evidence and found that the alleged anti-Semitic comment along with the perceived aggressive tone was the primary reason for the dismissal, rather than any assertion of a statutory right. Therefore, the Case No. 2400726/24 11 dismissal was not automatically unfair under Section 104 of the Employment rights Act 1996. Wrongful Dismissal

[39]The Tribunal has found that the Claimant was wrongfully dismissed and is entitled to one weeks' notice pay. The Respondent took no steps to speak to the Claimant after the allegation of misconduct was made or to investigate the concerns further. Further the Respondent did not provide this Tribunal with evidence as to why it considered the comment or behaviour amounted to gross misconduct entitling it to dismiss without notice. I am not satisfied that the Respondent demonstrated that the behaviour complained of amounted to gross misconduct entitling the Respondent to dismiss the Claimant without notice. Pension Payments

[40]The Respondent conceded that no payment had been made into a pension scheme on behalf of the Claimant and that if the Claimant is found to be an employee that payment for the amount equivalent to a 3% contribution would be payable.

[41]The total compensation and amount payable by the Respondent is set out in the Judgment.