Ms W M D Law v Canny Trading Limited T/a The Bowling Green Chorlton: 2412153/2023
EMPLOYMENT TRIBUNALS
Case No 2412153/2023
Between
Ms W M D LawClaimantLiam WalshRespondent
Before
Employment Judge HolmesIn person for claimantDate 17 December 2024
JUDGMENT
The complaint of Unfair Dismissal is struck out.
REASONS
[1]By a letter dated 27 January 2024 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the complaint of Unfair Dismissal should not be struck out because under section 108 of the Employment Rights Act 1996 claimants are not entitled to bring a complaint of unfair dismissal unless they were employed for two years or more except in certain specific circumstances which do not seem to apply in your case.[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The complaint of Unfair Dismissal is therefore struck out.[3]The claimant’s remaining claim(s) remains listed for hearing on 18 April 2024. Employment Judge Holmes Date: 23 February 2024[1]Neither party had complied with the case management orders made at a preliminary hearing on 31 May 2024 for the preparation of the case for final hearing. The respondent provided two short witness statement and one document on the day before the hearing. The claimant provided some documents and a short witness statement on the morning of the first day of the hearing. Case No: 2412153/2023 2[2]We had a discussion with the parties on the morning of the first day of the hearing about whether the hearing could go ahead. The claimant was keen that the hearing proceed, rather than be postponed. The claimant told us she was not available that afternoon, because she was working but would be available for the hearing on 6 December. We noted that, at the preliminary hearing, it was recorded that there were unlikely to be many relevant documents to be disclosed. We made orders for the respondent to provide disclosure of documents that afternoon and said we would consider, at the start of 6 December, whether we could fairly go ahead with the hearing. It seemed unlikely that the claimant would have any further relevant documents, other than documents relevant to remedy, so we made no further order for disclosure by the claimant at that time. It seemed unlikely that we would have time to deal with remedy within the remainder of the two days allocated, even if we were able to make a decision on whether the complaints succeeded. We would have made further orders for disclosure relevant to remedy, if the discrimination complaints had succeeded.[3]The respondent provided some documents by way of disclosure on the afternoon of 5 December and the morning of 6 December. The claimant said she wanted to go ahead with the hearing. The respondent was also happy to proceed. The Tribunal took the view that postponement of the hearing was unlikely to result in much more, if any, disclosure of relevant documents. Although the documents were not contained in one bundle of documents, as they should have been, had the parties complied with the case management orders, but in a series of separate pdf documents, we decided that we could manage to work with them. We decided, therefore, to proceed with the hearing.[4]We heard evidence from the claimant and from Mr Canny, the business owner and director, and from Mr Walsh, the General Manager, for the respondent.[5]We heard evidence in the remaining part of the morning of 6 December and early part of the afternoon, followed by the parties’ submissions. Due to the delay in being able to start evidence, we did not have time to make and deliver an oral judgment that day, so reserved our decision. Claims and issues[6]The claimant claimed direct sex discrimination in relation to an alleged reduction in her working hours and her dismissal. She also claimed breach of contract in relation to not being given notice of termination of her employment.[7]The claims and issues had been identified at a preliminary hearing on 31 May 2024 and set out in the record of that hearing. These are reproduced in the Annex to these reasons.[8]Although it had been identified at the preliminary hearing that the claimant was relying on a hypothetical comparison for her direct discrimination complaints, during cross examination, the claimant said she thought an employee called Pete got better treatment than she did in relation to hours allocated.[9]At the preliminary hearing, the respondent accepted that they should have given the claimant notice or pay in lieu of notice and agreed to pay this. Payment was Case No: 2412153/2023 3 made on 26 June 2024. Although the claimant accepted that the correct payment had been made, she refused to withdraw her claim for breach of contract.
Facts
[10]The claimant identifies herself as being of Chinese nationality/national origin, from Hong Kong.[11]The claimant worked at the Bowling Green pub in Chorlton from 14 September 2023 until she was dismissed without notice or prior warning on 30 October 2024.[12]The claimant was employed initially by Mr Canny as a sole trader but, towards the end of her employment, the business was transferred to a company, Canny Trading Limited, and all employees working at the Bowling Green, including the claimant, transferred to the employment of that company.[13]The claimant described the Bowling Green as an Irish pub, but we find that, although Mr Canny and Liam Walsh, the General Manager, are Irish, it is not an Irish themed pub. It is a traditional community pub. An employee, Pete, with whom the claimant compares herself, is Irish, but the other employees come from diverse backgrounds, including English, American, Jamaican, Australian and Indian.[14]The claimant was interviewed by Liam Walsh and offered the job of Front of House. The claimant had floor service experience but not working in a pub environment, serving alcoholic drinks. We accept Liam Walsh’s evidence that he hired the claimant because of her pleasant personality and her floor service experience. He was not concerned that she did not have experience in dealing with alcoholic drinks, taking the view that she could be trained on the product range.[15]The claimant was employed on a variable hours’ contract with no minimum or maximum number of hours. The hours were set out in a rota drawn up by Liam Walsh and notified to employees a week in advance. From a comparison of rotas with hours worked, it appears that the hours worked were not always exactly those on the rota. The rotas were drawn up taking account of employees’ availability, time off requirements, and business needs. As well as its normal day to day business, various events and functions would be held at the pub from time to time.[16]The claimant and Pete started working for the respondent about the same time. We find that they worked the following hours in the weeks during which the claimant was employed. Where the information is available, and where this is legible on the copies provided (many of the pdf copies being of poor quality), we also set out the hours originally put on the rota for that week. w/c C – rota hours C – actual hours Pete – rota hours Pete – actual hours 11.9.23 ? (training week) 28 ? 20 18.9.23 ? 35 ? 31.75 25.9.23 30? 39 29 19.5 2.10.23 ? 39 ? 32 9.10.23 38 37 40 40.5 Case No: 2412153/2023 4 16.10.23 40 39 39 30 (projected – a/c going on holiday) 23.10.23 37 35 40 Information not provided[17]The claimant was keen to work 40 hours per week, if possible.[18]The claimant said, in evidence, that she did not know how many hours other members of staff actually worked, but could see what hours they were allocated on the rota. She said that Pete, on two consecutive weeks, was given 40 hours on the rota. From the entries on the rota which we are able to read, which include those from w/c 9 October 2023 to the end of the claimant’s employment, this is not correct. Of the last 3 weeks the claimant worked, Pete was allocated 40, 39 then 40 hours per week; the claimant was allocated 38, 40, 37 hours per week for the same weeks.[19]Hours worked by employees other than the claimant and Pete varied considerably from as few as 5 hours one week to as many as 50.75 hours (the highest figure being a considerable outlier in terms of hours worked). Hours of work will reflect, in part, the employee’s availability for work, some employees only wanting to work part-time hours. The claimant had the highest number of hours worked some weeks and was amongst the highest in other weeks. Excluding the week she started and was training, she worked 39 hours per week in 3 of the 6 weeks, including the penultimate week of her employment. Her lowest number of hours per week was 35.[20]It is common ground that, after a relatively short period working taking table orders and serving front of house, Mr Walsh moved her to work behind the bar. The claimant acknowledges that she had some difficulties with the front of house work. We find that Mr Walsh moved her because of these difficulties, hoping that she would perform better at the bar. The claimant’s performance when working on dispensing drinks (pouring drinks at Mr Walsh’s instructions for table orders) was good. However, when the bar opened for general bar service, we find the claimant struggled with dealing with customers’ orders and sometimes went to do less urgent back of house tasks such as preparing cutlery, rather than staying at the bar taking orders.[21]We accept Mr Walsh’s evidence about the difficulties with the claimant’s performance in a front of house role, which was what the respondent needed her to do. However, we find that Mr Walsh and others did not clearly alert the claimant to the difficulties with her performance so her dismissal came, for her, as an unpleasant surprise.[22]We find that Mr Walsh dismissed the claimant, on Mr Canny’s instructions, on Monday 30 October 2023, by telephone, before the claimant was due to start work. Mr Walsh and the claimant agree that Mr Walsh told the claimant that he could not give her the hours she wanted. We accept Mr Walsh’s evidence that he meant that he could not give her close to 40 hours work per week if she was not doing the front of house work which was needed. He did not clearly explain to her that there were problems with her performance which has made her suspect that her dismissal may have been because of her race. Case No: 2412153/2023 5[23]The claimant received her final pay into her bank account on the evening of 29 October 2023, before she was dismissed on 30 October 2023. We find that the decision to dismiss her was taken on 29 October.[24]The claimant received a P45 dated 18 October 2024 but with a leaving date of 30 October 2023, with the employer’s name given as “Bowling Green Chorlton”. We accept the evidence of Mr Walsh and Mr Canny that all employees were given a P45 around this time, when the business was transferred from Mr Canny as a sole trader to Canny Trading Limited, which had been incorporated on 23 September 2024. We note that the claimant’s payslip for 24 October 2023 was in the name of “Bowling Green”, whereas the payslip for 6 November 2023 was in the name of “Canny Trading Ltd” which is consistent with this evidence. Why the claimant did not get a further P45 from Canny Trading Limited when her employment ended is not explained but may be related to the accountant having been on holiday around the time the claimant was dismissed. Mr Walsh and Mr Canny speculated that the accountant may not have felt it worthwhile issuing the claimant with a P45 in the name of the new company as well as the other P45.[25]The respondent was advertising for experienced front of house staff on Indeed by 23 October 2024. Submissions[26]The claimant and Mr Canny made very brief oral submissions. Mr Canny apologised for the mistake in not paying notice pay when the claimant’s employment was ended. The claimant did not make any submissions about matters from which the Tribunal might be able to draw inferences of discrimination.
Law
[27]The law in relation to direct race discrimination is contained in the Equality Act 2010. Section 13(1) provides that: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[28]Protected characteristics include race and race is defined as including nationality and ethnic or national origins.[29]Section 23 provides that: “On a comparison of cases for the purposes of direct discrimination there must be no material difference between the circumstances relating to each case.”[30]Section 136 contains provisions about burden of proof which say that, if there are facts from which the court could decide, in the absence of any other explanation, that a person contravened the provision concerned, the court must hold that the contravention occurred, but this does not apply if the employer shows that they did not contravene the provision. The effect of that is that there is an initial burden of proof on the claimant to prove facts from which the Tribunal could conclude that there was direct race discrimination. When considering whether the claimant has proved such facts, the Tribunal must not take any account of the Case No: 2412153/2023 6 explanation the respondent provides for its actions. If the claimant satisfies that initial burden of proof, the burden then passes to the respondent to satisfy the Tribunal that the reason for what they did was nothing to do with race. Conclusions Breach of contract (notice)
Conclusions
[31]The respondent now accepts that it should have given the claimant notice of termination or pay in lieu of notice and that the claimant was entitled to one week’s notice of termination. We, therefore, conclude, as admitted, that the respondent was in breach of contract by dismissing the claimant without notice.[32]Since notice pay has now been paid, there is no further loss in respect of this complaint and we award no damages for breach of contract. Direct race discrimination[33]We consider the issues identified in the list of complaints and issues.[34]In relation to allegation 1.2.1, the claimant has not satisfied us that Mr Walsh did initiate, on or around 18 October 2024, a plan to dismiss her. We do not consider the date on the P45 to be sufficient to prove, on a balance of probabilities, that there was such a plan. We consider it more likely that the date on the P45 was because all employees were issued with a P45 around that time, due to the transfer of the business from Mr Canny, as a sole trader, to Canny Trading Limited. Since the claimant has not proved the facts on which she relies, this allegation must fail.[35]In relation to allegation 1.2.2, the claimant has not satisfied us that, between the middle of October 2023 and 29 October 2023, Mr Walsh reduced her working hours. As noted in our findings of fact, the claimant had the highest number of hours worked some weeks and was amongst the highest in other weeks. Excluding the week she started and was training, she worked 39 hours per week in 3 of the 6 weeks, including the penultimate week of her employment. Her lowest number of hours per week was 35. The table of hours worked does not show a downward trend. In any event, a drop of a few hours a week for only a couple of weeks, even if the figures supported this, would be insufficient to prove that Mr Walsh was intentionally dropping her hours, rather than responding to business needs and factoring employees’ availability over the period when drawing up the rota. Although the hours on the rota for Pete for the last 3 weeks of the claimant’s employment were slightly greater, overall, than for the claimant, this is not a sufficient difference, or a sufficiently consistent pattern, for us to be able to conclude that Mr Walsh was reducing the claimant’s hours, compared to Pete’s hours. Since the claimant has not proved the facts on which she relies, this allegation must fail.[36]Dismissal on 30 October 2024 is admitted.[37]The only complaint in respect of which we need to consider whether the claimant has proved facts from which we could conclude that the treatment was less favourable treatment because of race is, therefore, the complaint about her dismissal. We conclude that the claimant has not proved facts from which we could Case No: 2412153/2023 7 conclude that the claimant’s dismissal was because of race. The claimant has not identified factors from which we could draw such an inference. There are no facts on the basis of which we could conclude the respondent treated the claimant less favourably, when dismissing her, because of her race. The complaint in relation to dismissal must, therefore, fail.[38]Even if we had concluded that Mr Walsh had initiated, around 18 October 2024, a plan to dismiss the claimant and that Mr Walsh had reduced her working hours between the middle of October 2023 and 29 October 2023 (which we did not), we would have concluded that the claimant had not satisfied the initial burden of proof. There are no facts from which we could conclude that such treatment (had we found it occurred) was less favourable treatment because of race.[39]In relation to the claimant’s dismissal, had the claimant satisfied the initial burden of proof, so that the burden passed to the respondent, we would have been satisfied that the reason for the claimant’s dismissal was because of her performance when doing front of house tasks and not in any material way because of her race. The respondent needed people to do front of house tasks, not the behind the scenes work which the claimant was more comfortable doing. Mr Walsh and Mr Canny did not consider, based on the claimant’s performance over the weeks she had worked for the respondent, that the claimant was sufficiently competent in a front of house role, carrying out floor service or on bar service when the bar was open for normal service. They considered that the claimant had not responded well enough to training. The advert shown to us by the claimant supports that the respondent had a need for front of house staff.[40]For these reasons, we conclude that the complaints of direct race discrimination are not well founded.