Mrs J Herling v S&M Herling Ltd and S Herling: 2403662/2023
EMPLOYMENT TRIBUNALS
Case No 2403662/2023
Between
Mrs J HerlingClaimant1. S&M Herling Limited 2. Stefan HerlingRespondent
Before
Employment Judge BattenL Hatch (instructed by Counsel) for respondentDate 20 May 2024
JUDGMENT
[1]the complaint of unfair dismissal is well founded. The first respondent is ordered to pay to the claimant compensation of £5,281.16, comprising a basic award of £4,023.16 and a compensatory award of £1,258.00;[2]the claimant was wrongfully dismissed, and the first respondent is ordered to pay to the claimant damages in the sum of £2,099.04 for lack of notice;[3]the first respondent made unauthorised deductions from the claimant’s pay in the gross sum of £874.60;[4]the complaint about unpaid holiday entitlement is not well-founded and is dismissed;[5]the complaint about a failure to pay the claimant at the applicable national minimum wage rate is dismissed, the Tribunal having found that the claimant’s employment fell within the exception in Regulation 58 of the National Minimum Wage Regulations 2015; Case No: 2403662/2023[6]The first respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. In accordance with section 38 of the Employment Act 2002, the Tribunal awards 2 weeks gross pay, being £349.84 for such default;[7]the complaint of victimisation is well-founded and succeeds. The Tribunal awards the sum of £1,072.30 for injury to feelings which includes interest of £72.30 calculated in accordance with the provisions of The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. The respondents are jointly and severally liable for this award.
REASONS
[1]By a claim form dated 24 March 2023, the claimant presented complaints of unfair dismissal, wrongful dismissal (notice pay), unauthorised deductions from wages, holiday pay, a failure to pay the national minimum wage, lack of provision of a written statement of particulars of employment, victimisation and marital status discrimination. The claimant pursued her claim against what has been the family business, centred on a very successful pub in which the claimant used to work, and also against her estranged husband, who is the second respondent. The pub itself has also been the marital home.[2]On 27 April 2023, the respondents presented a joint response to the claim and, on 2 August 2023, there was a case management preliminary hearing, Case No. 2403662/2023 2 before Employment Judge Ross , at which a List of Issues was drawn up and agreed with the parties.[3]The complaint of marital status discrimination was withdrawn during the course of this hearing and was dismissed upon withdrawal on 18 April 2024, in a separate judgment.
Evidence
[4]The Tribunal was provided with a bundle of documents comprising one lever-arch file of 504 pages, albeit that a number of pages were added to the bundle in the course of the evidence including extracts from the claimant’s diary and unaudited accounts from the claimant’s business, Wynstay Farm.[5]The claimant gave evidence herself and also called Anthony Bunka, a former work colleague, to give evidence in support. For the respondents, the Tribunal heard evidence from the second respondent, and also from Molly Herling, a director of the first respondent and also the second respondent’s mother. Each of the parties’ witnesses gave evidence from written witness statements and were subject to cross-examination.[6]At the conclusion of the oral evidence, the respondents tendered written submissions which were expanded upon in oral submissions. The claimant’s representative produced a written closing statement and also made oral submissions.
The issues
[7]A list of issues for determination at the final hearing had been drawn up at a case management discussion before Employment Judge Ross, on 2 August 2023.[8]At the commencement of the final hearing, the Tribunal reviewed and discussed the list of issues with the parties. At this point, the claimant’s representative said that the list of issues drawn up previously should include a claim of victimisation which had been intimated in the amended grounds of claim and/or in an email sent to the respondents’ solicitors on or about 13 October 2022. Counsel for the respondent objected on the basis that this was a new complaint and would require an amendment application. The Tribunal directed the parties to consider the matter over the course of the first morning whilst the Tribunal read into the case.[9]At the start of the afternoon, the Tribunal heard from the claimant’s representative who applied to amend the claim to include a complaint of victimisation whilst the respondents maintained their objection. Having heard from both parties, the Tribunal applied the principles summarised in Selkent Bus Co Limited v Moore [1996] ICR 836 and granted the application to amend, having regard to the overriding objective in rule 2, on the basis that it amounted to a relabelling of facts already pleaded and allied to the discrimination complaint (albeit that the discrimination complaint was later withdrawn). Case No. 2403662/2023 3[10]It was therefore agreed that the complaints and issues to be determined by the Tribunal at this hearing were as follows [the issues relating to the complaint of discrimination because of marital status have been removed as that complaint was withdrawn in the course of the hearing]: 1. Time limits1.1 Was the unauthorised deductions complaint made within the time limit in s23 Employment Rights Act 1996 (“ERA”)? The Tribunal will decide:1.1.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the date of payment of the wages from which the deduction was made?1.1.2 If not, was there a series of deductions and was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the last one?1.1.3 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit?1.1.4 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within such further period as the Tribunal considers reasonable?1.2 Was the claimant's claim under the National Minimum Wage legislation made within time? 2. Unfair dismissal (ERA) Dismissal2.1 Was the claimant dismissed by the first or second respondent? If so, when?2.2 Was it a dismissal by the respondent or a resignation? What are the facts-what was said or done or written by the parties? The claimant says she was dismissed in or around November 2022. The respondent says the claimant resigned on 30 May 2022. Reason2.3 Does the respondent rely on a reason for termination by dismissal? (The respondent suggests that the claimant simply resigned; alternatively, the respondent relies upon some other substantial reason) Fairness2.4 If so, applying the test of fairness in section 98(4) ERA, did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant? 3. Remedy for unfair dismissal3.1 What basic award is payable to the claimant, if any? Case No. 2403662/2023 43.2 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?3.3 If there is a compensatory award, how much should it be? The Tribunal will decide:3.3.1 What financial losses has the dismissal caused the claimant?3.3.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?3.3.3 If not, for what period of loss should the claimant be compensated?3.3.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?3.3.5 If so, should the claimant’s compensation be reduced? By how much?3.3.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?3.3.7 Did the respondent or the claimant unreasonably fail to comply with it and if so, how?3.3.8 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?3.3.9 If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?3.3.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?3.3.11 Does the statutory cap of fifty-two weeks’ pay apply? 4. Wrongful dismissal (Notice pay) 4.1 Is the claimant owed notice pay? If so, how much? 5. Holiday pay (Working Time Regulations 1998)5.1 Did the respondent fail to pay the claimant for annual leave the claimant had accrued but not taken when their employment ended?5.2 What was the claimant’s leave year?5.3 How much of the leave year had passed when the claimant’s employment ended?5.4 How much leave had accrued for the year by that date?5.5 How much paid leave had the claimant taken in the year?5.6 Were any days carried over from previous holiday years? Case No. 2403662/2023 55.7 How many days remain unpaid?5.8 What is the relevant daily rate of pay? 6. Unauthorised deductions and National Minimum Wage Regulations (“NMW”) claim6.1 Is the claimant owed arrears of pay?6.2 Was the claimant paid less than the National Minimum Wage? If so, when? The Tribunal will need to determine the hours worked by the claimant and the sums received for the hours work.6.3 Does the claimant fall within the exception in Regulation 58 of the NMW? 7. Written particulars of employment (Employment Act 2002)7.1 When these proceedings were begun, was the respondent in breach of its duty to give the claimant a written statement of employment particulars or of a change to those particulars?7.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.7.3 Would it be just and equitable to award four weeks’ pay? 8. Victimisation (Equality Act 2010 (“EqA”) section 27)8.1 Did the claimant do a protected act by bringing these proceedings which at the time included a complaint of discrimination because of marital status and/or by sending further particulars of that complaint on 21 June 2023?8.2 Did the respondents do the following things: 8.2.1 Cancel direct debits which had been for the claimant’s benefit?8.3 By doing so, did the respondents subject the claimant to detriment?8.4 If so, was that because the claimant did a protected act? 9. Remedy for discrimination - Victimisation9.1 What financial losses has the victimisation caused the claimant?9.2 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?9.3 If not, for what period of loss should the claimant be compensated? Case No. 2403662/2023 69.4 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?9.5 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?9.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?9.7 Did the respondent or the claimant unreasonably fail to comply with it and if so, how?9.8 If so, is it just and equitable to increase or decrease any award payable to the claimant?9.9 By what proportion, up to 25%?9.10 Should interest be awarded? How much?
Findings of Fact
[11]The Tribunal made its findings of fact on the basis of the evidence before it, taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. The Tribunal resolved such conflicts of evidence as arose on the balance of probabilities. The Tribunal has taken into account its assessment of the credibility of witnesses and the consistency of their evidence with surrounding facts.[12]The findings of fact relevant to the issues which have been determined are as follows.[13]The claimant and the second respondent were married in 2008, and have conducted the business known as the Beehive Inn at Combs in Derbyshire for approximately 18 years. The claimant, the second respondent and their family live in the pub, and they still live in the pub.[14]The pub business is owned by the first respondent, a company which was incorporated on 15 March 2021. The claimant and the second respondent are directors whilst the shareholders are the second respondent and his mother, Molly Herling, who each own 50% of the shares. The first respondent company also owns the property of the pub building and land.[15]The second respondent has throughout worked as a chef and landlord of the pub and has undertaken various other jobs in the business from time to time. From February 2003, the claimant started work behind the bar on a part-time basis.[16]In 2005, the claimant and the second respondent formed a relationship, and the claimant began to work more hours on a flexible ad-hoc basis. The claimant had their first child in 2007. In 2008 the claimant and the second respondent married, with a second child arriving in 2009. The family resided in the pub. Case No. 2403662/2023 7[17]The claimant described her role as “more than an employee” and she came to consider herself to be a co-owner of the business. In fact, the Tribunal found that the claimant was not an owner of the business. At most, she was the landlady. She was treated differently to other employees because of the family arrangement – she was, after all, the second respondent’s wife. The claimant was paid a notional salary of £758.00 per month, with no deductions showing on her payslips. The amount of £758.00 was around the tax-free pay limit at the time and is not an unusual arrangement in family businesses which seek to take advantage of a family member’s entitlement to tax-free pay up to a limited amount. The claimant had access to other monies generated by the business, via a joint account, and she also enjoyed a number of benefits which other employees did not. For example, the claimant had use of a car (fully expensed), mobile phone, private health insurance, contributions to her private pension, accommodation in the pub and all bills paid by the business and meals. The Tribunal did not consider this to be unusual in a family business situation.[18]The claimant also separately owned and ran a smallholding of 32 acres in the fields adjacent to the pub, on land which was owned by the claimant's mother. The smallholding supplied the pub with produce including meat products from livestock reared on the smallholding, which were sold in the pub’s shop.[19]On 30 May 2022, the claimant confronted the second respondent because she had discovered he had been having an affair with the sous-chef. The second respondent initially denied it, until the claimant explained that she had seen CCTV footage. There was a row. The gist of what was said by the claimant was that she wanted nothing more to do with the pub and that she would not set foot in the pub again.[20]However, the claimant did not leave. The children went to stay with relatives for a short period whilst the couple talked, as they did that night. In fact. the claimant never moved out of the pub and the children soon returned. Nevertheless, from then on, the claimant did not work in the pub and, at most, performed occasional duties which benefitted the business, for example chopping logs, mowing the lawns and on one occasion, a visit to Costco for various supplies.[21]The first respondent continued to pay the claimant at the same level as before, being the £758.00 per month notional salary. The second respondent asked the claimant to think about things and take her time before making any or any long-term decisions.[22]In July 2022, the claimant issued divorce proceedings.[23]In September 2022 there was a conversation between the claimant and the second respondent, about the claimant's mobile phone. The contract was due for renewal and the second respondent said the business would not be renewing the contract for the claimant.[24]At some point in this period, the second respondent also had a conversation with the business’ accountant about the claimant no longer working in the business. The accountant’s advice was to the effect that the business could Case No. 2403662/2023 8 not continue to pay the claimant a notional salary if she was not working in the business, as that would be a potential fraud on the Inland Revenue.[25]On 1 October 2022, and as a result of the accountant’s advice, the first respondent issued a P45 to the claimant via its electronic ‘BrightPay’ payroll system. However, the second respondent did not tell the claimant that this had happened and so the claimant was entirely unaware of the P45 until later.[26]On 4 November 2022, the claimant discovered that her pay had not arrived in her bank account at the end of October, as she had expected. She asked the second respondent about it, at which point the second respondent told the claimant he had issued her with a P45 which was dated 1 October 2022.[27]As a result of no pay from the business, the claimant sought and soon found alternative employment. On 5 December 2022, the claimant started a new job at a local supermarket.[28]On 15 January 2023, the claimant commenced ACAS early conciliation with a certificate issued on 26 February 2023. The ET1 claim form was presented on 24 March 2023.[29]In the course of these proceedings, on 21 June 2023 the claimant served further and better particulars of her discrimination claims, in advance of the case management preliminary hearing. This was in reply to a request for such from the respondents’ solicitors, within their grounds of resistance. That evening, the second respondent learned of the claimant’s further and better particulars from his solicitor. In response, the second respondent cancelled a number of direct debits paid by the first respondent, for the claimant’s benefit, including contributions to the claimant's private pension in the sum of £250 per month. The second respondent also cancelled a life insurance policy in respect of the claimant, even though he was the beneficiary of the policy.
The applicable law
[30]A concise statement of the applicable law is as follows. Unfair dismissal[31]To pursue a complaint of unfair dismissal, a claimant must be an employee with a least 2 years’ continuous service and must have been dismissed in accordance with the definitions of dismissal in ERA section 95. These include a resignation which may amount to a constructive dismissal if the employee terminates their contract of employment, with or without notice, in circumstances whereby they are entitled to terminate their contract by reason of the employer’s conduct.[32]If an employee has been dismissed, section 98 ERA sets out a 2-stage test to determine whether an employee has been unfairly dismissed. First, the employer must show the reason for dismissal, or the principal reason, and that reason must be a potentially fair reason in law. The respondent contends that the claimant resigned freely; alternatively, they say the reason for dismissal Case No. 2403662/2023 9 was ‘some other substantial reason’ [being the marital breakdown] which is a potentially fair reason for dismissal under Section 98 (1) (b) ERA.[33]If the employer shows a potentially fair reason in law, the Tribunal must then consider the test under section 98 (4) ERA, namely whether, in the circumstances, including the size and administrative resources of the respondent’s undertaking, the respondent acted reasonably or unreasonably in treating that reason, as a sufficient reason for dismissing the claimant and that the question of whether the dismissal is fair or unfair shall be determined in accordance with equity and the substantial merits of the case.[34]The issue of the reasonableness of the dismissal must be looked at in terms of the set of facts known to the employer at the time of the claimant’s dismissal. The Tribunal must also consider whether the decision to dismiss fell within the band of reasonable responses open to a reasonable employer in the circumstances of the case: Iceland frozen Foods Ltd -v- Jones [1982] IRLR 439.[35]The ACAS Code of Practice on Disciplinary and Grievance Procedures contains guidance on the procedures to be undertaken for a dismissal in circumstances where a disciplinary or capability process would or should applicable. It is doubted that the Code applies to dismissals for some other substantial reason where that reason does not pertain to the employee’s conduct, ill-health or capability. Wrongful dismissal (notice pay)[36]Section 86 ERA provides that an employer is required to give minimum notice to an employee to terminate his contract of employment. The minimum period of notice which an employer is required to give, where the employee has been continuously employed for one month or more, is one week’s notice for each completed year of service up to a maximum of 12 weeks’ notice. Unauthorised deductions from wages[37]A worker is entitled to be paid for work done under his or her contract of employment. ERA Part II provides that a failure to pay wages owing constitutes an unauthorised deduction from wages.[38]Wages are defined in section 27 ERA. Section 27(1) (a) provides that: “wages includes any fee, bonus, commission, holiday pay or other emolument referable to his employment whether payable under his contract or otherwise”.[39]ERA section 13 governs circumstances in which an employer can make deductions from an employee’s wages. Section 13 provides that an employer: “shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or relevant provision of the worker’s contract or the worker has Case No. 2403662/2023 10 previously signified in writing his agreement or consent to the making of the deduction.” National Minimum Wage[40]The National Minimum Wage Act 1998 and the National Minimum Wage Regulations 2015 have the effect of amending a worker’s contract of employment so as to provide a minimum rate of pay per hour below which the worker should not be paid. The applicable rates of pay are set and uprated usually on 1 October of each year.[41]Regulation 58 provides that the national minimum wage provisions do not apply to a worker who is a member of the employer’s family, residing in the family home and who participates in the running of the family business. Holiday pay[42]Section 27 (1) (a) ERA defines ‘wages’ as including holiday pay – see above. Hence, the non-payment of holiday pay can be an unauthorised deduction from wages.[43]The Working Time Regulations 1998, Regulations 13 and 13A, provide that every worker is entitled to a minimum of 5.6 weeks’ paid holiday entitlement in each holiday year.[44]Regulation 14 of the Working Time Regulations 1998 provides for an employee’s entitlement to outstanding accrued untaken holiday pay at the termination of employment and provides a formula for calculation of such entitlement. In the absence of any express contractual provisions as to holiday entitlement, the holiday year for calculation purposes is determined in accordance with Regulation 13 and commences on the anniversary of the date on which the claimant’s employment began. Failure to give a statement of particulars[45]Section 38 of the Employment Act 2002 provides that if a claimant succeeds with certain claims before the Tribunal, such as her claim for unfair dismissal or unpaid wages, then the Tribunal must consider whether the respondent was in breach of its duties under sections 1 and/or 4 ERA, namely whether the respondent gave the claimant a written statement of initial employment particulars or a statement of particulars of change, in accordance with sections 1 and/or 4 ERA. If the respondent has failed to comply with those duties, the Tribunal can make an additional award of 2 or 4 weeks’ pay for such failure. Victimisation[46]Section 27 EqA provides that a person(a) (A) victimises another person(b) (B) if A subjects B to a detriment becausea. B does a protected act or Case No. 2403662/2023 11b. A believes B has done or may do a protected act[47]A protected act includes bringing proceedings under EqA and/or making an allegation (whether or not express) that A or another person has contravened the Act.[48]In Martin v Devonshires Solicitors UKEAT/0086/10 Mr. Justice Underhill analysed the previous similar provisions as follows: “The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: If it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where an employer has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable. The most straightforward example is where the reason relied on is the manner of the complaint.”[49]A claim of victimisation does not require any comparison. Answering the question of the ‘reason why’ involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator to see whether the protected act had any material influence on the detrimental treatment; see for example Amnesty International v Ahmed [2009] IRLR 884. Time limits[50]The time limit for complaints of unauthorised deductions from wages is found in section 23(2) ERA. This provides that such complaints shall be presented to the Tribunal before the end of the period of 3 months beginning with the date of payment of the wages from which the deduction was made or, where the Tribunal is satisfied that it was not reasonably practicable for such complaint to be made before the end of the 3 months’ period, within such further period as the Tribunal considers reasonable.[51]Two issues may therefore arise: whether it was not reasonably practicable for the claimant to present the complaint within time; and, if not, whether it was presented within such further period as is reasonable.[52]Something is “reasonably practicable” if it is “reasonably feasible” (see Palmer v Southend-on-Sea Borough Council [1984] ICR 372, Court of Appeal).[53]In University Hospitals Bristol NHS Foundation Trust v Williams UKEAT/0291/12 the EAT upheld a Tribunal decision that a late claim was “in time” even though the medical evidence “did not entirely support the Judge’s findings about the Claimant’s mental health” (EAT judgment paragraph 12) and even though the claimant had been able to move home and find a new school for her child during the period when the Tribunal found it had not been reasonably practicable to have presented a claim. Case No. 2403662/2023 12[54]In Marks and Spencer Plc v Williams-Ryan [2005] ICR 1293 the Court of Appeal reviewed some of the authorities and confirmed in paragraph 20 of its Judgment that a liberal approach in favour of the employee was still appropriate. What is reasonably practicable and what further period might be reasonable are ultimately questions of fact for the Tribunal[55]The Tribunal also considered a number of cases to which it was referred by Counsel for the respondent, in submissions. The cases were: Royal Mencap Society v Tomlinson-Blake [2018] IRLR 932, [2021] UKSC 8 Omar v Epping Forest District Citizens Advice [2024] IRLR 92[56]The Tribunal took those cases as guidance and not in substitution for the provisions of the relevant statutes.
Conclusions
[57]The Tribunal has applied its relevant findings of fact and the applicable low to determine the issues in the following way. Unfair dismissal[58]The Tribunal considered that the claimant was dismissed on 4 November 2022, when she found out that she had been issued with a P45 which she understood to mean the termination of her employment by the respondent The claimant was not aware of this until 4 November 2022. The Tribunal found this to be the effective date of termination of the claimant’s employment, on the understanding that an employee cannot effectively be dismissed unless or until she is told so or has been given notice of such. A P45 is understood to mark the end of employment.[59]The respondent had contended that the claimant ‘resigned’ by her conduct on 30 May 2022, when she discovered the second respondent’s affair. The Tribunal disagreed. The claimant was very upset that night, and a number of things were said/suggested, in the heat of the moment, none of which were acted upon nor carried through. The claimant did not leave or move out and she did not have nothing to do with the business from then on, albeit that she reduced the tasks she undertook to the bare minimum, whilst the parties talked. The second respondent’s evidence was that he wanted to give the claimant time to think about things. He did not want her to leave and left the position open. In those circumstances, the Tribunal considered that the second respondent did not, at the time, consider the claimant to have resigned; alternatively, he had not accepted such.[60]The Tribunal accepted the respondent’s alternative submission, namely that in the event the Tribunal decided there was a dismissal, it was for “some other substantial reason”, namely a breakdown in the relations between the second respondent and the claimant. The reality was that, by November 2022, the claimant had not worked for several months in any significant way for the business, certainly not in any manner comparable to the amount of duties and tasks she performed previously. The Tribunal accepted that the claimant did occasional jobs which contributed to the running of the business, but she also Case No. 2403662/2023 13 did them because she was on site and, to some extent, it suited her. For example, the Costco trip: on the balance of probabilities, the Tribunal considered that the claimant was going to Costco anyway and asked, “is there anything we need?” which led to her doing her own shopping and at the same time, picking up additional, mainly food, items for the business.[61]The respondent followed no procedures when terminating the claimant’s employment. However, the Tribunal took account of the fact that this all happened in the context of the family breakdown and divorce proceedings. Nevertheless, the Tribunal considered that the second respondent should have at least told the claimant when he issued her P45. The parties could have talked about what was intended and required, given the accountant’s advice that such an arrangement could not realistically continue.[62]The evidence was that the parties continued to live side by side in the pub and did converse. Discussions about the claimant’s position and the accountant’s advice might have resulted in the parties coming to some alternative arrangements for the claimant’s employment, for example, it may have led to the second respondent offering the claimant the opportunity to return to work in the business on revised terms and conditions. So, whilst the Tribunal considered that procedures would have made little difference to the situation the parties were in, nevertheless, the Tribunal considered that there could and should have been at least a month taken, to talk and think, before the finality of termination of employment was put into effect. The likely outcome may have been that the claimant would not ultimately have returned to work, but the second respondent should have tried, at that stage to reach a compromise.[63]In light of all the above, the Tribunal found that the claimant was unfairly dismissed but that any compensation should be limited to a month’s pay, to cover the period in which the parties could and should have talked about arrangements further. Notice pay[64]The claimant was not dismissed for gross misconduct nor for anything that would justify summary dismissal. Given her length of service, the claimant is entitled to 12 weeks’ statutory minimum notice pay in lieu. Holiday pay[65]The Tribunal makes no award in relation to holiday pay for any accrued unused holiday entitlement at termination of employment. The Tribunal heard evidence that the claimant had taken a number of holidays in the last few months of her employment, to the extent that whatever entitlement she had (which was entirely unclear from the evidence) was most likely used up. The Tribunal was therefore unable to find that there was any accrued, untaken holiday entitlement at the termination of the claimant’s employment and so no holiday pay is awarded. Unpaid wages and the national minimum wage Case No. 2403662/2023 14[66]The Tribunal has found that the claimant was not paid for 5 weeks, between 30 September and 4 November 2022. She is entitled to wages for the period up to the effective date of termination of her employment.[67]As to the amount of wages, and application of the national minimum wage or otherwise, the Tribunal considered that the claimant’s employment situation fell squarely within the exception in regulation 58 of the National Minimum Wage Regulations 2015, because this was a family business arrangement. Statement of employment particulars[68]The respondent has accepted that the claimant was never issued with any statement of particulars of employment nor a contract of employment, and we find that proven. The tribunal has decided to make an award for such of 2 weeks’ gross pay. Victimisation[69]The Tribunal found that the relevant protected act was the sending of further and better particulars on 21 June 2023. In response, and within a matter of a few hours, the second respondent had taken action to cancel certain direct debits which had been for the claimant’s benefit, including a regular contribution to the claimant's private pension. However, the Tribunal also took account of the fact that such actions occurred in the wider context of the marital separation. On that basis, the Tribunal considered the detriment to be relatively slight, as these items would ultimately need to be addressed and cancelled, in the long run. Time limits[70]The only complaint which raised an issue as to the applicable time limit was the complaint about unauthorised deductions from wages. The Tribunal has found that the claimant was entitled to be paid up to the termination of her employment on 4 November 2022 and, therefore, the complaint about unauthorised deductions is in time.
Remedy
[71]For unfair dismissal, the claimant is entitled to a basic award of £4,023.16, based upon the claimant’s earnings of £758.00 a month gross, which equates to £174.92 per week. The claimant was aged 49 at dismissal and had 19 years of service, so that is a multiplier of 23 x £174.92 = £4,023.16.[72]In respect of a compensatory award, the Tribunal awards £1,258.00 comprising: one month’s pay of £758.00 for the time it might take to discuss matters – see paragraph 62 above; and £500.00 for the loss of statutory rights.[73]The claimant is entitled to 12 weeks’ statutory notice pay, which is £2,099.04 based on the claimant’s weekly earnings of £174.92 x 12 = £2,099.04.[74]The Tribunal makes no award in respect of holiday pay – see paragraph 65 above. Case No. 2403662/2023 15[75]The claimant is awarded 5 weeks’ unpaid wages for the period between 30 September and 4 November 2022, being the sum of £874.60 gross.[76]The respondent is ordered to pay the claimant 2 weeks’ pay, being £349.84, for the absence of any statement of particulars of employment.[77]The Tribunal awards the sum of £1,072.30 in respect of the victimisation complaint, comprising £1,000.00 for injury to feelings and interest, pursuant to The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996, regulation 6(a), for the period from the act of victimisation on 21 June 2023 to the calculation date of 20 May 2024, at 8%, being £72.30.