Mr A Carberry v Hazel Grove DIY Centre Ltd and Mr A Curry: 2402782/2021 and 2402801/2021

EMPLOYMENT TRIBUNALS

Case No 2402782/2021, 2402801/2021

Between

Mr A CarberryClaimant

Hazel Grove DIY Centre Ltd and Mr A CurryRespondent

Before

Employment Judge Ficklin

Date 25 February 2022

JUDGMENT

[1]There was a relevant transfer of the Respondent company on 25 January 2021 in accordance with the TUPE Regulations, from Mr Andrew Curry to Mr Michael Budd. (But see the Case Management Orders issued at the same time as this judgment.)

[2]The claim against the 2nd Respondent (2402801/2021, named as Mr Andrew Curry) is dismissed.

[3]The Claimant was an employee within the meaning of the Employment Rights Act 1996 of the 1st Respondent (Hazel Grove DIY Limited) at the relevant time (25 January 2021).

[4]The Tribunal did not determine whether the Claimant’s employment was terminated on 25 January 2021. This will be determined at the final hearing. Case nos. 2402782/2021 & 2402801/2021 2 Employment Judge Ficklin 25 February 2022 SENT TO THE PARTIES ON 28 March 2022 FOR THE TRIBUNAL OFFICE Notes:(1) This judgment follows an in-person hearing. Neither party objected to the format of the hearing.

(2) Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party makes a request in writing within 14 days of the date on which this judgment is sent to the parties. If written reasons are provided, they will be entered onto the tribunal’s online register, which is visible to internet searches. Case No. 2402782/2021 1 EMPLOYMENT TRIBUNALS Claimant: Mr A Carberry Respondent: Hazel Grove DIY Centre Limited HELD AT: Manchester ON: 26 September & 12 October 2022 (by CVP) BEFORE: Employment Judge Ficklin REPRESENTATION: Claimant: Respondent: In person Mr Michael Budd, Director The JUDGMENT of the Tribunal is:

[1]I reconsider my judgment dated 25 February 2022 with regard to the finding that there was a relevant transfer of Hazel Grove DIY Limited on 25 January 2021 in accordance with the TUPE Regulations, from Mr Andrew Curry to Mr Michael Budd. I find that there was a share transfer only, which did not affect the identity of the claimant’s employer.

[2]The claimant was unfairly dismissed. The respondent is ordered to pay the claimant:a. A basic award of £576 (3 weeks x gross pay £192); and

b. A compensatory award of £1156 (4 weeks x net pay £189, plus £400 for loss of statutory rights).

[3]The claimant's claim for wrongful dismissal is well-founded. The respondent is ordered to pay the claimant £576 (3 weeks x gross pay £192).

[4]The claimant’s claim for unpaid holiday pay is well-founded. The respondent is ordered to pay the claimant £1075.20 (5.6 weeks x gross pay £192) in holiday pay. Case No. 2402782/2021 2

[5]The claimant is awarded two weeks’ gross pay (£384) under Section 38 (3)(a)-(b) of the Employment Act 2002 due to the respondent's failure to provide a statement of employment particulars.

[6]The claimant is awarded a total of £3767.20. Employment Judge Ficklin ______________________________ Employment Judge Ficklin 12 October 2022 JUDGEMENT SENT TO THE PARTIES ON 21 October 2022 FOR THE SECRETARY OF THE TRIBUNALS Notes: (1) This judgment follows a remote hearing that took place on a remote video platform. Neither party objected to the format of the hearing. Case No. 2402782/2021 3 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 ARTICLE 12 Case number: 2402782/2021 Name of case: Mr A Carberry v Hazel Grove DIY Centre Limited Interest is payable when an Employment Tribunal makes an award or determination requiring one party to proceedings to pay a sum of money to another party, apart from sums representing costs or expenses. No interest is payable if the sum is paid in full within 14 days after the date the Tribunal sent the written record of the decision to the parties. The date the Tribunal sent the written record of the decision to the parties is called the relevant decision day. Interest starts to accrue from the day immediately after the relevant decision day. That is called the calculation day. The rate of interest payable is the rate specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as the stipulated rate of interest. The Secretary of the Tribunal is required to give you notice of the relevant decision day, the calculation day, and the stipulated rate of interest in your case. They are as follows: the relevant decision day in this case is: 21 October 2022 the calculation day in this case is: 22 October 2022 the stipulated rate of interest is: 8% per annum. Mr S Artingstall For the Employment Tribunal Office Case No. 2402782/2021 4 GUIDANCE NOTE

[1]There is more information about Tribunal judgments here, which you should read with this guidance note: www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, you can ask for a paper copy by telephoning the Tribunal office dealing with the claim.

[2]The payment of interest on Employment Tribunal awards is governed by The Employment Tribunals (Interest) Order 1990. Interest is payable on Employment Tribunal awards if they remain wholly or partly unpaid more than 14 days after the relevant decision day. Sums in the award that represent costs or expenses are excluded. Interest starts to accrue from the day immediately after the relevant decision day, which is called the calculation day.

[3]The date of the relevant decision day in your case is set out in the Notice. If the judgment is paid in full by that date, no interest will be payable. If the judgment is not paid in full by that date, interest will start to accrue from the next day.

[4]Requesting written reasons after you have received a written judgment does not change the date of the relevant decision day.

[5]Interest will be calculated as simple interest accruing from day to day on any part of the sum of money awarded by the Tribunal that remains unpaid.

[6]If the person paying the Tribunal award is required to pay part of it to a public authority by way of tax or National Insurance, no interest is payable on that part.

[7]If the Secretary of State has claimed any part of the sum awarded by the Tribunal in a recoupment notice, no interest is payable on that part.

[8]If the sum awarded is varied, either because the Tribunal reconsiders its own judgment, or following an appeal to the Employment Appeal Tribunal or a higher court, interest will still be payable from the calculation day but it will be payable on the new sum not the sum originally awarded.

[9]The online information explains how Employment Tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No. 2402782/2021 1 EMPLOYMENT TRIBUNALS Claimant: Mr A Carberry Respondent: Hazel Grove DIY Centre Limited HELD AT: Manchester ON: 26 September & 12 October 2022 (by CVP) BEFORE: Employment Judge Ficklin REPRESENTATION: Claimant: Respondent: In person Mr Michael Budd, Director

REASONS

[1]In a claim form received on 7 April 2021 following ACAS early conciliation the claimant, who was employed from 8 September 2017 until he was dismissed on 26 January 2021 brought complaints of unpaid redundancy payment, unfair dismissal, breach of contract (notice pay) and unlawful deduction from wages (holiday pay). He withdrew his claim of unpaid redundancy payment on 7 September 2021.

[2]I gave judgment on 12 October 2022 that the claimant’s claims for unfair dismissal, breach of contract (notice pay) and unlawful deduction from wages (holiday pay) were well-founded.

[3]I heard evidence from the claimant on his own behalf. For the respondent I heard from Mr Michael Budd, the current director, and Mr Andrew Curry, the former director from whom Mr Budd purchased the business.

[4]The documentary evidence included witness statements, the claimant’s payslips, tax information, communications between the parties and the claimant’s geolocation coordinates for particular days in January 2021. Issues Case No. 2402782/2021 2

Issues

[5]Issues for unfair dismissal:a. What was the substance of the Claimant’s oral contract with the Respondent?

b. Was the Claimant dismissed upon the sale of the business to Mr Budd?

c. Can the respondent prove the sole or principal reason for the dismissal?

d. Was that reason one of the potentially fair reasons in sections 98(1) and (2) of the Employment Rights Act 1996?

e. Did the respondent act reasonably or unreasonably in treating that reason as sufficient to dismiss the claimant?

[6]Issues for breach of contract ie wrongful dismissal / notice pay:a. Was the claimant dismissed?

b. What was the claimant’s notice period?

c. Was the claimant paid for that notice period?

[7]Issue for holiday pay: a. Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended?

Findings of fact

[8]I find the relevant findings of fact on the balance of probabilities.

[9]I find that the substance of the claimant’s contract of employment with the respondent was that he was a salaried employee working 24 hours over the same three days every week.

[10]The claimant occasionally worked more than his standard hours, and was paid by the former director Mr Curry in cash for the extra hours. Except for a few weeks during the COVID pandemic, the claimant did not work fewer than his standard 24 hours during his employment.

[11]I find that Mr Budd told the claimant that his hours and days would change when he took over the business on 26 January 2021, on the erroneous understanding that the claimant was on a zero-hours contract. Mr Budd did not contact the claimant for work at his usual hours and days, or at all. I accept that on that day the claimant was told that his work pattern would not continue, and that he was not contractually entitled to any hours at all. He was not offered redundancy. I find that the claimant was dismissed as of 26 January 2021.

Law

[12]Section 94(1) of the Employment Rights Act 1996 (“the 1996 Act”) provides that an employee has the right not to be unfairly dismissed by her employer. Section 98(1) of the 1996 Act provides that in determining whether the dismissal is fair or unfair, it is for the employer to show the reasons for the dismissal, and that it is a reason falling within section 98 (2) of the 1996 Act. Section 98(2) states that fair reasons include the employee’s conduct, his capability or qualifications to do the job, redundancy, or that the employment could not continue without contravention of a duty or restriction under an enactment. Case No. 2402782/2021 3

[13]Section 98(4) provides that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal if fair or unfair (having regard to the reasons shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the respondent’s undertaking) the employer acted unreasonable or reasonably in treating it as a sufficient reason, and this shall be determined in accordance with equity and the substantial merits of the case.

Conclusion

[14]I find that the claimant was dismissed on 26 January 2021. This is because I accept that on that day he was told that his work pattern would not continue, and that he was not contractually entitled to any hours at all. He was not offered redundancy. None of the reasons for dismissal in the 1996 Act were made out by the respondent.

[15]The claimant’s claims are well-founded. The claimant is entitled to an award and compensation for unfair dismissal, breach of contract (notice pay) and unlawful deduction from wages (holiday pay).

Remedy

[16]For Unfair Dismissal, the claimant was awarded three weeks gross pay for three years’ employment (3 weeks x gross pay £192: £576), plus four weeks’ net loss of earnings (4 weeks x net pay £189: £756), plus £400 for loss of statutory employment rights.

[17]Regarding the loss of earnings, the claimant brought no evidence at all of attempt to mitigate his losses. On that basis it is just and equitable to award four weeks compensation only.

[18]For breach of contract (notice pay) the claimant’s notice period based on his length of employment was three weeks. The claimant was awarded three weeks’ gross pay (3 weeks x gross pay £192: £576).

[19]I found that the claimant had not taken any holiday in the year before dismissal, and so was due 5.6 weeks’ holiday at his gross pay (5.6 weeks x gross pay £192: £1075.20).

[20]Section 38 of the Employment Act 2002 mandates that I award a minimum 2 weeks’ gross pay to the claimant for the lack of a written statement of particulars. That award can be as high as four weeks, but I decline to award four weeks as it is a small business. (2 weeks x gross pay £192: £384)

[21]I award the claimant a total of £3767.20 (£576+£756+£400+£576+£1075.20+£384)

[22]The claimant sought reconsideration of the remedy portion of my judgment on the basis that I found no evidence that he had mitigated his loss of earnings. His email referred to various arguments and evidence that he had indeed Case No. 2402782/2021 4 mitigated his losses. He did not present any of that information or evidence at the hearing.

[23]Paragraph 7 of the Case Management Order sent to the parties on 28 March 2022 states, “The parties must be prepared to deal with all issues including remedy if it arises.” The claimant had been duly informed that the full hearing would deal with all aspects of remedy. It is not the tribunal’s role to advise parties on evidence they should bring or how to present their case. There is no reasonable prospect that the claimant’s compensatory award will be varied based on evidence he did not rely on at the hearing.