Mr T Morris v GTC Pub Management Ltd: 2410438/2021

EMPLOYMENT TRIBUNALS

Case No 2410438/2021

Between

Mr T MorrisClaimant

GTC Pub Management LtdRespondent

Before

Employment Judge A M Buchanan

In person for claimant

Not represented for respondent

Date 8 June 2022

JUDGMENT

[1]The complaint in respect of unauthorised deduction from wages is well founded and the respondent is ordered to pay to the claimant £3131.58 for unpaid wages in respect of the period ending with the date of termination of his employment on 14 July 2021. The sum of £3131.58 is a gross amount and the claimant is to account to the appropriate authorities for any income tax and employee national insurance contributions due in respect of the sum of £3131.58. This amount is increased by 10% namely £313.15 pursuant to the provisions of section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). Accordingly, the total due in respect of this complaint is £3444.73p. 2.The complaint of unauthorised deduction from wages in respect of unpaid holiday pay is well founded and the respondent is ordered to pay to the claimant £769.49 in respect of unpaid holiday pay. The sum of £769.49 is a gross amount and the claimant is to account to the appropriate authorities for any income tax and employee national insurance contributions due in respect of such sum of £769.49. This amount is increased by 10% namely £76.94 pursuant to the provisions of section 207A of the 1992 Act. Accordingly, the total due in respect of this complaint is £846.43p.

[3]The complaint of automatic unfair dismissal by reason of having made a protected disclosure pursuant to section 103A of the Employment Rights Act 1996 is well founded and the claimant is entitled to a remedy. The alternative complaint of dismissal by reason of assertion of a statutory right pursuant to section 104 of the Employment Rights Act 1996 falls away.

[4]The respondent is ordered to pay to the claimant £3420 compensation for unfair dismissal. This amount is increased by 10% namely £342 pursuant to the provisions of section 207A of the 1992 Act. The total due in respect of this complaint is £3762.00p.

[5]The Employment Protection (Recoupment of Benefits) Regulations 1996 (“the 1996 Regulations”) do not apply to this award.

[6]The complaint of wrongful dismissal is well founded. There will be no award of compensation in order to avoid double recovery.

[7]The complaint of harassment related to sexual orientation advanced pursuant to sections 26 and 40 of the Equality Act 2010 fails and is dismissed.

[8]The alternative claim of direct sexual orientation discrimination advanced pursuant to section 13 of the Equality Act 2010 fails and is dismissed.

[9]The total sum due from the respondent to the claimant is £8053.16 and this sum is payable forthwith.

REASONS

1.1 The claimant instituted these proceedings on 27 August 2021 relying on an early conciliation certificate on which Day A was shown as 13 July 2021 and Day B was shown as 24 August 2021. Complaints were advanced of automatic unfair dismissal, harassment related to sexual orientation or in the alternative direct sexual orientation discrimination, arrears of pay and notice pay.

1.2 The respondent failed to file a response or appear at this or an earlier hearing.

1.3 A private preliminary hearing (“PH”) by telephone took place on 29 November 2021. Orders were made at that hearing for a hearing of the complaints advanced as the burden of proof lay with the claimant, and it was inappropriate to give Judgment under Rule 21 of Schedule I of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the 2013 Rules”).

1.4 The claimant represented himself at the final hearing. The respondent did not attend. RESERVED JUDGMENT Case Number: 2410438/2021

1.5 At the conclusion of the submissions, I decided to reserve Judgment in order to give detailed consideration to the complaints advanced. This Judgment is issued with full reasons in order to comply with the requirements of Rule 62(2) of the 2013 Rules.

The complaints

[2]The claimant advances the following complaints to the Tribunal:-2.1 A complaint of automatic unfair dismissal advanced pursuant to sections 103A or 104 of the Employment Rights Act 1996 (“the 1996 Act”).

2.2 A complaint of harassment related to sexual orientation pursuant to sections 26 and 40 of the Equality Act 2010 (“the 2010 Act”) or in the alternative discrimination because of sexual orientation pursuant to sections 13 and 39 of the 2010 Act.

2.3 A claim for “other payments”. This relates to unpaid wages by unpaid or underpaid furlough payments and holiday pay and is advanced pursuant to the provisions of Part II of the 1996 Act.

2.4 A claim for unpaid notice pay (breach of contract) relying on the provisions of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.

[3]The claimant also advanced a claim for a redundancy payment but withdrew that claim and it was dismissed by a Judgment dated 24 November 2021.

[4]The Issues The issues in the complaints advanced are as follows: Time limits

The complaints

[1]Given the date the claim form was presented and the effect of early conciliation, any complaint about something that happened before 14 April 2021 may not have been brought in time.

[2]Was the discrimination complaint made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:2.1 Was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates?

2.2 If not, was there conduct extending over a period?

2.3 If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period?

2.4 If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide:

[3]Did the claimant make one or more qualifying disclosures as defined in section 43B of the 1996 Act?3.1 The claimant says he made disclosures on these occasions: PD1 On 23 December 2020 to LW when he asserted that furlough pay had not been correctly calculated. PD2 On 13 January 2021 when he raised the same matters with LW and with Lisa W. PD3 In January/ February 2021 when he raised the same matters with the accountants of the respondent. PD4 0n approximately 22 January 2021 when he raised the same matters with HMRC.

3.2 Did he disclose information?

3.3 Did he believe the disclosure of information was made in the public interest?

3.4 Was that belief reasonable?

3.5 Did he believe it tended to show that:3.5.1 a criminal offence had been, was being or was likely to be committed;

3.5.2 a person had failed, was failing or was likely to fail to comply with any legal obligation;

3.5.3 information tending to show any of these things had been, was being or was likely to be deliberately concealed.

3.6 Was that belief reasonable?

3.7 If the claimant made a qualifying disclosure, was it made:3.7.1 to the claimant’s employer?

3.7.2 to the respondent’s accountant?

3.7.3 to HMRC being a prescribed person namely HMRC within section 43F of the 1996 Act. If so, it was a protected disclosure. Unfair dismissal

[4]Can the claimant prove that there was a dismissal?

[5]Has the claimant shown the reason or principal reason for dismissal?

[6]Was the reason or principal reason for dismissal that the claimant made a protected disclosure? If so, the claimant will be regarded as unfairly dismissed or RESERVED JUDGMENT Case Number: 2410438/2021

[7]Did the claimant assert a statutory right referred to in section 104 of the1996 Act?

[8]Was the reason or principal reason for dismissal that the claimant asserted a statutory right? If so, the claimant will be regarded as unfairly dismissed. Remedy for unfair dismissal

[9]What basic award is payable to the claimant, if any?

[10]If there is a compensatory award, how much should it be? The Tribunal will decide:10.1 What financial losses has the dismissal caused the claimant?

10.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?

10.3 If not, for what period of loss should the claimant be compensated?

10.4 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

10.5 Did the respondent or the claimant unreasonably fail to comply with it?

10.6 If so, is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?

10.7 Does the statutory cap of fifty-two weeks’ pay or £88,519 apply? Wrongful dismissal / Notice pay

[11]What was the claimant’s notice period?

[12]Was the claimant paid for that notice period?

[13]If not, can the respondent prove that the claimant was guilty of gross misconduct which meant that the respondent was entitled to dismiss without notice? Harassment related to sexual orientation (Equality Act 2010 section 26)

[14]Did the respondent do the following alleged things:14.1 In or around October 2020 say the claimant had only been employed to enable the respondent to matchmake him with another member of staff?

14.2 Ask the claimant to perform as a dame at an event at the Pub in December 2020?

14.3 Make other off the cuff throw away remarks about sexual orientation directed to the claimant?

[15]If so, was that unwanted conduct?

[16]Was it related to sexual orientation?

[17]Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?

[18]If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Direct sexual orientation discrimination (Equality Act 2010 section 13)

[19]What are the facts in relation to the following allegations:20.1 The matters mentioned at 14.1-14.3 above

20.2 Did the claimant reasonably see the treatment as a detriment?

20.3 If so, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances was or would have been treated? The claimant relies on a hypothetical comparison.

20.4 If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of sexual orientation?

20.5 If so, has the respondent shown that there was no less favourable treatment because of sexual orientation? Unauthorised deductions

[21]Did the respondent make unauthorised deductions from the claimant’s wages in respect of furlough pay and holiday pay and, if so, how much was deducted?

[22]How much is the claimant owed? 5. Witnesses In the course of the hearing, I heard from the following witnesses: Claimant5.1 The claimant gave evidence and called no other witnesses. The claimant confirmed the contents of a witness statement extending to 6 pages and also confirmed the contents of a schedule of loss (pages 2 and 3). Respondent

5.2 The respondent had not entered a response and I had no evidence from the respondent. 6. Documents I had a bundle running to some 98 numbered pages. Any reference to a page number in these reasons is a reference to the corresponding page in the agreed bundle. I noted that the bundle contained some correspondence which the claimant had had with ACAS as part of the conciliation exercise. That correspondence is not admissible RESERVED JUDGMENT Case Number: 2410438/2021 pursuant to section 18(7) of the Employment Tribunals Act 1996 and therefore I did not have regard to it. Findings of Fact 7. Having considered all the evidence both oral and documentary placed before us and in particular the way the oral evidence was given, I make the following findings of fact on the balance of probabilities:

7.1 The claimant was born on 27 April 1995. The claimant began work for the respondent on 2 September 2020 as a bar manager at a new public house under the name of Hogarth’s in Rochdale (“the Pub”). It was run by a husband and wife duo namely Lee and Lisa Wolstenholme. The claimant’s employment began following a period of closure because of the covid-19 pandemic.

7.2 The claimant was issued with a contract of employment (pages 4-5). The contract confirms the date of commencement of employment as 2 September 2020 and the hours of work to be 16 hours minimum (per week). The contract provided that the claimant should give two weeks’ notice to leave employment but that he would receive one weeks’ notice of termination once his probationary period had expired. The probationary period was three months during which employment could be terminated without notice. The claimant was paid the national living wage which was £8.72p per hour when his employment began and rose to £8.91 per hour on 1 April 2021.

7.3 The respondent was obliged to close the Pub on 22 October 2020 following reintroduced restrictions because of the pandemic. The claimant was assured that he would be placed on furlough, and he agreed to that being so. Up until that point in time, taking information from payslips before me (page 28), the claimant had worked 233.5 hours over a period of 7 weeks 1 day. This equated to an average of some 32.65 hours per week. This equates to a gross weekly income of £284.70p (£8.72 x 32.65) over that period. The gross figure for that period would equate to some £2035 60. From information before me, I find the claimant received £1991.89 net (pages 18 and 28) and that gives me confidence in those figures. There was no income tax due and only minimal national insurance and employee pension contribution.

7.4 The claimant received the first furlough payments on 3 December 2020 of £546.06 net (page 18) which was considerably less than he was expecting. On 24 December 2020 there was an exchange of messages in which Lisa Wolstenholme (“Lisa”) told the claimant the furlough payment was based on an average of the previous 4 weeks before furlough to which the claimant replied: “80% of the previous 4 weeks would have been £821. I only got £546” (page 7).

7.5 The claimant raised the matter with Lisa and she promised to look into it. The matter was in point of fact looked into by Lee Wolstenholme (“Lee”) who wrote to the claimant on 6 January 2021 to confirm that “the government have under paid you. You will get it backdated not sure when this will happen though” (page 9). The claimant wrote to the respondent and said that he was entitled to receive the correct amount from the respondent even though the employer may have received a reduced amount from the government. A heated exchange took place on 13 January 2021 between the claimant and Lee during which I accept Lee said to the claimant “You RESERVED JUDGMENT Case Number: 2410438/2021 keep pushing and pushing, you’re going to fuck it up for everybody else”. Lisa then became involved again and calmed the situation but said words which the claimant found troubling namely: “The accountant has done a little something so we all get a little bit more”. The claimant was genuinely and reasonably troubled by these remarks.

7.6 On 14 January 2021 Lee wrote to the claimant: “I have just got off the phone to them, you will receive £971.86 on your next pay day, this brings everything up to date, you will then get £792 every four weeks after that . That’s take-home pay”. The claimant replied: ”Thank you for sorting this, Lee. I completely understand how stressful it is on everyone. So, I really appreciate it”. Lee replied: “OK do you agree with the figures before they send it again”? The claimant replied “Yes, I do” (page 10).

7.7 The claimant received from the respondent new calculations of his entitlement on 14 and 19 January 2021. The claimant accepted that the calculations looked accurate and agreed them. Cordial relations with his employers were restored.

7.8 On 22 January 2021 the claimant contacted HMRC and reported suspected fraud on the part of his employer in relation to the furlough scheme. The claimant was told he would not hear the outcome of his report.

7.9 On 1 February 2021 whilst still on furlough, the claimant was asked to complete outstanding on-line training and did so by 19 February 2021. The courses undertaken were a variety of Front of House and Management courses (pages 41-52). The claimant had apparently been assigned the wrong courses but, after discussion with Lee, decided to remain on the same management courses with a view to increasing his prospects for promotion.

7.10 On 19 February 2021 Lee wrote to the claimant that he had just received £344.49 being the shortfall from the furlough scheme and that he would transfer it over. The claimant received that amount into his bank on 19 February 2021 (page 18).

7.11 On 6 May 2021 the claimant received a missed call from Lee at 20:09 and then a message from Lee which read: “OK, well you haven’t turned up to any training so we will take as you have left”. and which stated that the claimant had resigned his employment by not attending some in person COVID 19 compliance training which had taken place at the Pub on 5 and 6 May 2021. The claimant had not been notified of any training and thus had not attended. The claimant lived very close to the Pub (where the training took place) and, whilst working before the lockdown, had been telephoned by the respondent on more than one occasion to cover shifts which were short staffed. Those requests were made by telephone or text and the claimant had made himself available at short notice. There were five employees who did not attend the so-called mandatory training days but only the employment of the claimant and one other (Kelly Sheldon “KS”) was terminated. KS had also contacted HMRC in respect of furlough payments received from the respondent.

7.12 When other employees attended the mandatory training days, they noticed that nothing had been laid out for the claimant and KS. This was reported later to the claimant who concluded that it suggested that neither the claimant nor KS were in RESERVED JUDGMENT Case Number: 2410438/2021 fact expected to attend. At no point over the two-day training period was the claimant contacted by the respondent to enquire where he was and why he had not attended. The claimant could and would have attended if he had been notified.

7.13 The claimant contacted KS after hearing she was no longer employed by the respondent and discovered that she too had made reports of fraud to HMRC. The claimant accessed his own personal tax account from HMRC and found that there appeared to be a discrepancy of some £2866.25 between the amounts claimed by the respondent for him in furlough payments and the amounts paid over to him. The claimant made another report of suspected fraud by the respondent to HMRC after the message of 6 May 2021 from Lee. The claimant heard nothing from the respondent after the message of 6 May 2021.

7.14 The claimant had not resigned his employment and so raised a grievance with the respondent on 2 July 2021 (pages 19-20). In the letter dated 1 July 2021, the claimant made it plain that the training dates of 5 and 6 May 2021 had not been communicated to him and that he had not resigned his employment. He did not consider that his employment had been terminated. The claimant referred back to the events of 13 January 2021 when he had been subjected to what he described as “verbal abuse, aggressive language and an overall unpleasant voice call”. The claimant complained that he was still underpaid and that there appeared to have been a claim of furlough pay made by the respondent for him on 14 June 2021 amounting to £1024.90 which he had not received. The claimant asked that all his pay slips be sent to him.

7.15 Lee responded to the grievance on 7 July 2021 (page 23) with a letter which said a letter had been sent to the claimant on 7 May 2021 to confirm his employment had been terminated. It was asserted that the claim of £1024.90 on 14 June 2021 had been the result of a clerical error by accountants. A copy P60 to 5 April 2021 and a copy P45 was enclosed which showed the termination date of the claimant’s employment to have been 24 April 2021 (pages 24 and 25). The claimant received that letter on 14 July 2021.

7.16 The respondent claimed to have sent to the claimant a letter terminating his employment on 7 May 2021, but the claimant received no such letter. The pay slips sent to the claimant by letter dated 7 July 2021 stated that some payments had been made to the claimant in cash. I find that the claimant never received any payment from the respondent in cash and that all payments were sent direct to his bank account (pages 17/18).

7.17 In planning for Christmas 2020 events at the pub, the claimant was asked by Lisa if he would dress up as a pantomime dame and serve drinks. The claimant had never expressed an interest in drag and had given no indication that dressing up in that way would be of interest to him. The claimant could not say when that conversation took place, but I infer it was before the pub closed on 20 October 2020. The claimant did not raise this issue with the respondent at any time before instituting these proceedings.

7.18 The evening before the closure of the pub on 22 October 2020, a conversation developed between the claimant and Lisa in which she stated to the claimant that one of the motivating factors in employing him was to “set him up” with another male RESERVED JUDGMENT Case Number: 2410438/2021 employee whom she suspected to be gay. The claimant is an openly gay man. The claimant did not raise this issue with the respondent at any time before instituting these proceedings.

7.19 The claimant made various applications for employment in July and August 2021 (pages 53 onwards). He was successful in finding employment and began work on 4 October 2021. From that point in time, he has no ongoing loss of earnings.

7.20 The claimant was advised on 14 January 2021 that the respondent company proposed to enter into creditors’ voluntary liquidation. That information came to the claimant from the accountants appointed to assist in the voluntary liquidation. That step was taken after the claimant had served his schedule of loss on the respondent which claims a total sum of £46326.39 compensation in these proceedings. The letter from the accountants stated that they had been advised that the claimant was “owed funds by the Company following a Court Order”. The claimant was sent forms to complete in relation to the Redundancy Payments Office. Submissions 8. The claimant chose not to make submissions. 9. The Law Automatic Unfair Dismissal

9.1 I have reminded myself of the provisions of part IVA of the 1996 Act and the detailed definition of qualifying disclosure and protected disclosure. I note that the claimant must show that he disclosed information as opposed to simply making an allegation but that I should not become too concerned with the distinction between an allegation and information. I note that a communication – whether written or oral – which conveys facts and makes an allegation can amount to a qualifying disclosure.

9.2 I note that in Darnton v University of Surrey and Babula v Waltham Forest College

2007 ICR 1026

it was confirmed that the worker making the disclosure does not have to be correct in the assertion he makes. His belief must be reasonable. The claimant must also have a reasonable belief that any disclosure being made is in the public interest.

9.3 I have reminded myself that any disclosure which in the reasonable belief of the employee making it tends to show that a breach of a legal obligation has occurred (or is occurring or is likely to occur) amounts to a qualifying disclosure.

9.4 I have reminded myself of the provisions of sections 43F of the 1996 Act and the provisions of the Public Interest Disclosure (Prescribed Persons ) Order 2014. I note that the Commissioners for Her Majesty’s Revenue and Customs (“HMRC”) are the appropriate body to receive information in respect of matters relating to the functions of HMRC and I note that the administration of the furlough scheme was a function of HMRC.

9.5 I have reminded myself of the provisions of section 103A of the 1996 Act which read:- RESERVED JUDGMENT Case Number: 2410438/2021 “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure”.

9.6 In relation to the burden of proof I note that the burden to prove the reason for any dismissal lies with the claimant as he did not have two years qualifying service to advance a claim of ordinary unfair dismissal against the respondent pursuant to sections 94/98 of the 1996 Act. Harassment related to sexual orientation: section 26 of the 2010 Act

9.7 The relevant provisions of section 26 of the 2010 Act provided: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B….. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are--.sexual orientation;

9.8 In relation to what is required to establish a case of discrimination by harassment I have reminded myself of the guidance given by Underhill J in Richmond Pharmacology Limited –v- Dhaliwal

2009 IRLR 336

and in particular that the Tribunal should focus on three elements namely: (a) unwanted conduct (b) having the purpose or effect of either violating the claimant’s dignity or creating an adverse environment for him and (c) being related to the claimant’s sexual orientation (in this case).

9.9 I have noted the provisions of section 123 of the 2010 Act in respect of time limits. I have reminded myself of the distinction between continuing discrimination extending over a period of time and a series of distinct acts. I have reminded myself of the decision in British Coal Corporation -v- Keeble

1997 IRLR 336

and the provisions of section 33 of the Limitation Act 1980 in respect of the exercise of discretion to extend time in which to allow a claim of discrimination to be considered for remedy. Unauthorised deduction from wages.

9.10 I have noted the provisions of the Coronavirus Job Retention Scheme and the provisions of the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 which came into force on 31 July 2020.