Ms J Witherspoon v SGA Forecourts Ltd: 2501499/2017

EMPLOYMENT TRIBUNALS

Case No 2501499/2017

Between

Ms J WitherspoonClaimant

SGA Forecourts LtdRespondent

Before

Employment Judge Garnon

Date 7 June 2018

REASONS

[1]The claim was served by post on the address “ Jet Service Station, A167 Northbound, Plawsworth , Durham DH2 3NL” on 14th November 2017. A response was due by 12th December 2017 but none was received. A preliminary hearing had been fixed for today. In such circumstances an Employment Judge is required by rule 21 of the Employment Tribunals Rules of Procedure 2013 to decide on the available material whether a determination can be made and , if so, obliged to issue a judgment which may determine liability only or liability and remedy.

[2]The text of the claim form complains mainly of the acts of a manager named Mr Miles Cole . Petrol Filling Stations are commonly operated under some form of franchise. The franchisee may change but the management remain in the hands of the same person. I know this station as I drive past it regularly. I was surprised no response had been received. On 13th December 2017 I decided to perform a search at Companies House

[3]The search revealed the respondent has a registered office at Cockton Hill Service Station , Cockton Hill Road , Bishop Auckland, DL14 6JN approximately 20 miles from Plawsworth. On 16th December I caused a letter to be sent to the claimant asking her to Case Number 2501499/17 confirm whether, to the best of her knowledge, the Plawsworth Filling Station remained operational and controlled by the respondent . Her reply on 20th December was unclear on the last point but she confirmed Mr Cole was still the manager.

[4]On 28th December 2017 , out of an abundance of caution , I caused a letter to be sent to the respondent at both the Plawsworth and Cockton Hill addresses saying that if it intended to defend it must contact the Tribunal without delay and explain why it did not respond earlier. Today still no contact from the respondent had been received. I conducted the prelimnary hearing with the claimant by telephone. She confirmed every payslip she had up to termination showed the respondent as her employer.

[5]The law of unfair dismissal is in Part X of the Employment Rights Act 1996 ( the Act) and the law of unlawful deduction of wages is in Part II. The common law provides a contract of employment may be brought to an end only by reasonable notice. Dismissal without such notice is termed ”wrongful”. The Working Time Regulations 1998 say in Regulation 14 that where a worker's employment is terminated during the course of his leave year, and on the date on which the termination takes effect the proportion he has taken of the leave to which he is entitled in the leave year differs from the proportion of the leave year which has expired. his employer shall make him a payment in lieu of untaken leave. The law relating to discrimination and harassment is in the Equality Act 2010, in particular sections 13, 18, 26, 39 and 40 in this case.

[6]I have in the claim form sufficient information to enable me to find the claims proved on a balance of probability but not enough to determine the remedy to be awarded. TM Garnon

[7]The first contact from the respondent was an e-mail from a Mr Jabbar Hussein sent at 02:58 on Thursday 1st February attaching an ET3 form with no reasoned defence to the claim. All it says is that the claimant did not complain of bullying when she was employed. This was followed at 03:11 by an application for reconsideration made after 14 days of the date of reasoned judgment being sent .

[8]The core of the application reads: “ Mr Mohammad Gulshan who was dealing with this matter unfortunately went off on sickness leave and we were unable to get in touch , to make matters worse all the paperwork was sent to one of our garages instead of head office The company thought this was being taken care of by himself or a solicitor who we thought was employed by him deal with all issues regarding this matter”

[9]Dealing first with the service address, a claim may be validly served on a limited company either at its registered office or any place of business. Under a previous version of the Rules, His Honour Judge Peter Clark in Zietsman and Du Toit t/a Berkshire Orthodontics-v-Stubbington found a claim had been properly served despite Mr DuToit having changed his practice address and not having actual notice of the proceedings. There is no evidence before me that the claim and notice of hearing were not delivered in the ordinary course of post and did not come to the attention of the directors of the respondent. The place of service point has no merit.

[10]Kwik Save-v-Swain and Pendragon plc-v-Copus both decided under earlier and different versions of the Rules concern delay in responding, as Mummery P said in Kwik Save, “ as the result of a genuine misunderstanding or an accidental oversight “. A Tribunal should be “ more willing to allow the late lodging of a response “ if there had been a genuine mistake.

[11]This respondent operates three sites , the two already mentioned and one other close to Bishop Auckland. Mr Gulshan is one of three directors the others being Mr Sajad Hussein and Mr Asif Hussein. Mr Jabbar Hussein is the Company Secretary At all material times the manager at the Plawsworth site was Mr Cole.

[12]Turning to the sickness of Mr Guishan , I accept he was sick for a time he did not specify but from the moment he was delegated by his fellow directors to deal with this claim , on or shortly after 16th November, nothing at all was heard from the respondent until 1st February. Mr Sajad Hussein Mr Asif Hussein and Mr Jabbar Hussein must have known Mr Guishan was prevented by illness from dealing with a claim of potentially serious consequence to the company. If Mr Cole opened post addressed to the Plawsworth site , it is not credible he did not pass it to a director.

[13]Although I have a discretion under Rule 5 to extend the time limit for applying for a reconsideration. I have been given no reason to exercise it. Mr Jabbar Hussein, and probably others, must have known from the time the judgment was received urgent action was needed but he failed to take it .

[14]Rule 2 of the Rules provides their overriding objective is to enable Employment Tribunals to deal with cases fairly and justly. That means all cases not just this one . Under the 2013 rules, the only ground for a reconsideration is whether one is necessary in the interests of justice. That means justice to both sides and to other litigants. The respondent had the chance to advance its arguments when it received the claim and on subsequent occasions. It did not do so and still has not in the proposed response. The only reason it has given does not excuse the inactivity of the directors . The 2013 Rules were clearly intended to be a modernised system . designed to do justice between the parties but requiring the respondent to the claim to put forward its arguments in a prescribed way at a prescribed time . They made greater provision than earlier for determinations without a hearing. Everyone is still entitled to a hearing if they follow the rules to avail themselves of that right.

[15]The Employment Tribunals send to every respondent very detailed explanations of what they must do, how and when they must do it and the consequences of not complying. I find this claim arrived and was ignored. A procedure followed which resulted in a judgment. It would cause the claimant and the Tribunal delay and expense to revoke the judgment and start afresh. To allow a respondent, who has not taken advantage of the opportunity to defend, to do so only after a Rule 21 judgment would make a mockery of the system.

[16]When I announced my decision Mr Gulshan said the respondent would appeal. Although it was decided under the 2004 Rules, the case of DH Travel Ltd -v-Foster held the respondent is entitled to be heard on remedy. I must emphasise to the respondent, as the Employment Appeal Tribunal did to DH Travel, that this is not an opportunity to run arguments about liability. For reasons I give in separate Orders , I was unable to deal with remedy today. TM Garnon

[1]This matter was listed to deal with remedy, following a Rule 21 default judgment given in circumstances set out in more detail below.

[2]The remedy hearing took place on 10 May 2018. The tribunal gave an oral judgment on 10 May 2018 and subsequently sent to the parties a written and signed judgment on 30 May 2018. On the same date, the respondent asked for written reasons. Procedural Background

[3]On 9 January 2018, under Rule 21 of the Employment Tribunal Rules 2013, EJ Garnon gave judgment on liability in the following terms: “Claims of unfair dismissal, wrongful dismissal (breach of contract), sex discrimination and/or pregnancy discrimination and harassment, unlawful deductions of wages and failure to pay compensation for untaken annual leave are well founded. There will be a remedy hearing fixed at which the respondent may attend to be heard on remedy only”.

[4]EJ Garnon gave detailed reasons, at the end of which he stated “I have in the claim form sufficient information to enable me to find the claims proved on a balance of probability but not enough for me to determine the remedy to be awarded”.

[5]The case was then listed for a remedy hearing. The hearing took place on 12 February 2018. EJ Garnon dealt with that hearing: Ms Witherspoon attended in person; Mr Gulshan, Page 1 of 6 director, attended on behalf of the respondent. EJ Garnon was asked to re-consider his decision on liability. He treated it as an application for reconsideration, which he refused, and he gave detailed reasons for the refusal. He then re-affirmed that it was for the remedy hearing to attach the correct “label” to the type of conduct relied on by the claimant. However, it was apparent that the matter was not in fact ready for determination as to remedy and it was adjourned as a result.

[6]It was in these circumstances that the determination of the appropriate remedy to be awarded in this case came on for hearing on 10 May 2018. The Remedy Hearing

[7]Ms Witherspoon again attended in person. Mr Hussain, a director of the respondent attended and spoke on behalf of the respondent. The tribunal also gave permission to the respondent’s witness, Miles Cole, to speak at times during the remedy hearing and to make submissions on behalf of the respondent.

[8]At the outset of the hearing, it was explained to both parties that the tribunal was not looking at questions of liability; and that the tribunal could not re-open the question of liability because the previous Employment Judge had made a Rule 21 decision on liability and he had already decided that the facts complained of by the claimant in her claim form happened on a balance of probabilities. The task of tribunal at the remedy hearing was to hear evidence and submissions as to remedy and to examine how to put a value on the claim in which she has succeeded.

[9]Both parties accepted that this was the scope of the tribunal’s decision making at the remedy hearing on 10 May 2018.

[10]The tribunal re-emphasised that the respondent was allowed to take part in the proceedings but only to the extent of the remedy claimed– e.g. as to extent of injury to feelings - but not for example to seek to re-open questions of liability.

[11]As for evidence received, the tribunal was provided with 2 bundles, one from the claimant and one from the respondent. There were sufficient copies for each party. The tribunal received a witness statement from the claimant and from Miles Coles, both of whom gave oral evidence and were cross examined. There were additional witness statements from directors of the respondent although little weight attaches as they did not give oral evidence. The tribunal took into account oral submissions from Ms Witherspoon and both Mr Hussain and Mr Cole for the respondent.

[12]In evidence, the claimant described how she had received no support from the respondent during her pregnancy, the examples she gave included a lack of any risk assessment and no advice on the circumstnaces in which she could take maternity leave. Subsequently during her maternity leave and in conversation (including by text message) with her manager, Miles Cole, at least from January 2017, the claimant was told that staff at the respondent were not happy with the claimant and that they were not happy covering her shifts. This resulted in comments being made at the respondent about the claimant’s absence. At this time, it appeared that the claimant was contemplating an (early) return to work but in the event she was not well enough and her doctor advised her to use her full maternity entitlement. She stated that, “it all started to get awkward from January onwards”. The claimant felt under pressure to return as a result. Her evidence was expressly that as a result of the unfair pressure that she felt that the respondent had Page 2 of 6 brought to bear prior to the end of her maternity leave she felt that she could not return to work and had no option but to resign. The impact that the claimant describes was a loss of confidence and a loss of self-esteem. The tribunal finds as a fact that, on the basis that the facts on liability were judged to be well founded and cannot be re-opened, a material influence in the claimant’s decision to resign was the pressure consequent upon the discriminatory actions of respondent.

[13]Mr Cole in his evidence complained that he had been “painted in a bad light” and that he considered that he had not harassed her and that he had considered that they had previously had a good friendship. He accepted that the claimant had not been provided with any Keeping In Touch days and in terms of the earlier risk assessment he stated that he didn’t realise that it needed to be done. There had been no offer of a phased return to work. This was, according to Mr Cole, because the claimant had not indicated that she was ready to come back to work. This is inconsistent with the claimant’s evidence that she had arranged a potential return to work in February 2017 but at the last minute had not done so on her doctor’s advice.

[14]Both the claimant and Mr Cole gave detailed evidence on the circumstances of payment of holiday pay and this is reflected below. Discussion and Conclusions

[15]The description of the conduct complained of by Claimant in her claim form was sufficient for the Employment Judge to enter judgment on liability.

[16]The tribunal has taken into account the fact that the claimant was entitled to ordinary and additional maternity leave. Her claim form describes being asked about returning to work and refers to text messages and in her words being pressured into returning to work. She gave an example also of being told by a manager that staff at the respondent were not happy with the claimant and that they were being made to cover additional shifts. These facts in the claimant’s claim form meant that the claimant felt continuously unfairly pressured into returning to work. In her claim form, she states, “I have been discriminated against because I was on maternity leave and was forced to resign because returning to work was no longer an option”. These are the facts on liability which the tribunal is working with at this remedy hearing. Whilst the tribunal accepts that Mr Coles gave evidence in an attempt to assist the tribunal, at times Mr Coles’ evidence touched upon matters of liability which the tribunal had to remind the parties was beyond the scope of the remedy hearing.

[17]In terms of approaching remedy, EJ Garnon correctly identified that it is for the remedy hearing to apply the correct “label” to these facts as outlined in the claim form. In doing so the tribunal makes the following conclusions: 17.1. Unfair pressure upon the claimant during her maternity leave can constitute unlawful maternity discrimination contrary to s.18 of the Equality Act, see s.18(4): On the facts of this case, pressure including unfair pressure into returning to work amounts to unfavourable treatment as a result of taking an entitlement to maternity leave; 17.2. When the claimant resigned, she did so because for her returning to work was no longer an option as a result of the Respondent unfairly pressurising her. These facts fit within s.99 ERA. EJ Garnon has already concluded that a claim of unfair dismissal is well founded, and it is this tribunal’s decision that the correct description Page 3 of 6 of that is that the resignation of the claimant was an unfair constructive dismissal within s.95 (1) and s.99 of ERA because the reason or the principal reason for the dismissal related to maternity or the ordinary and additional maternity leave taken by the claimant.

[18]The tribunal therefore turns to its conclusions on remedy: Unfair dismissal:

[19]The claimant is entitled to a Basic Award which, by virtue of her 7 years’ continuous service at an (agreed) weekly gross pay of £112.50, amounts to £787.50. Compensatory award for unfair dismissal:

[20]It is fortunate that the claimant has been able to mitigate her loss because shortly after the termination of her employment she obtained alternative employment which she acknowledged was at higher rate of pay. As a consequence, the claimant is not seeking any compensatory award based on loss of earnings.

[21]The claimant is awarded £300, which is a conventional sum to reflect the fact that by reason of this dismissal, she had lost her statutory right not to be unfairly dismissed, which she cannot regain until she has been in her new employment for 2 years. Holiday Pay

[22]The claimant seeks holiday pay. During the course of evidence, the situation became much clearer. The relevant holiday year period is the same as the calendar year. The claimant makes a claim in relation to both the 2016 year and the part of the 2017 year up to termination.

[23]As to 2016, the respondent agreed that the claimant had an annual entitlement of 84 hours (which is 15 hours x 5.6 weeks) and it was also agreed that the claimant could (by virtue of her maternity leave) carry over into 2017 any shortfall in her holiday entitlement from 2016. Relevant pay slips show payments to the claimant during 2016 reflecting a total of 60 hours (4 different payments reflecting 15 hrs). The tribunal finds these to be payments in respect of the claimant’s 2016 entitlement to holiday pay. This leaves a shortfall of 24 hours.

[24]The respondent gave evidence that a further 9 hours was paid in May 2017 as this was the respondent’s understanding at that time of the claimant’s residual entitlement from 2016. The respondent has subsequently acknowledged that its understanding was wrong and that it had understated the claimant’s full entitlement. The tribunal accepts that there was an additional payment in May 2017 relating to 9 hours holiday pay.

[25]This left a shortfall of 15 hours, which the tribunal finds was due and payable on termination, at (an agreed rate of) £7.50 per hour, amounting to £112.50.

[26]Turning to 2017, the tribunal finds that there was a single occasion when payment for holiday pay was made prior to termination. This was following a request by the claimant. There are two pay slips which together with the content of the claimant’s P45 indicate that the respondent made payment for 30 hours in addition to the 9 hours carry-over from 2016. At the time of payment, an amounting reflecting 30 hours was thought by the respondent to be the amount then due to the claimant for 2017. However, by the time of termination, on 7 July 2017, the claimant’s entitlement had risen in effect to 52% (it being 27 weeks Page 4 of 6 into 2017) of her annual entitlement: the claimant was therefore entitled to payment of 43 hours at the time of termination.

[27]This left a shortfall of 13 hours, which the tribunal finds was due and payable on termination, at (an agreed rate of) £7.50 per hour, amounting to £97.50. Wrongful dismissal:

[28]The claimant was not in repudiatory breach of her contract of employment and was entitled to pay during any notice period that the respondent should have given. In her case, it was agreed between the parties that the claimant would have been entitled to 7 weeks’ notice. The claimant was not working at the time of termination due to sickness absence but it does not follow that the claimant would have remained on sickness absence in circumstances where the respondent was not in breach of contract:

[29]The tribunal therefore finds that the claimant was entitled to 7 weeks’ notice of termination. The claimant is awarded a sum to reflect that entitlement less the 2 weeks’ notice that she did in fact give and for which she did in fact not work due to sickness and was not entitled to full pay.

[30]The tribunal awards the sum of 5 weeks x (an agreed rate of) £112.50 as damages for wrongful dismissal, amounting to £562.50. One week lying on:

[31]Properly understood, this is a claim in respect of the fact that pay is made in arrears so that there needs to be a catch up payment at the end of employment. Indeed, that was the advice given to the claimant by ACAS.

[32]In the present case, the pay slip evidence provides the answer. The claimant commenced her maternity leave on (or about) 9 May 2016. Subsequent to that date, she received a further pay slip (with a pay date of 13 May 2016). Initially, the claimant could not understand why, but during the course of evidence and questions from the tribunal the claimant acknowledged that this was payment in arrears.

[33]In the tribunal’s judgment, this was in fact a payment for what in the claimant’s words was her one week lying-on. The tribunal therefore awards nothing in respect of this element of her claim. Injury to Feelings

[34]The level of an injury to feelings award is an inexact science. The case of Vento v Chief Constable of West Yorkshire Police provides a starting point of three bands for potential awards: lowest band of £500 - £5,000; middle £5,000 - £15,000; top £15,000 - £25,000. The guidance provided by these bands has been subsequently updated and developed both by the EAT in the 2010 case of Da’Bell v NSPCC and the Court of Appeal in the case of De Souza v Vinci Construction (UK) Ltd

[2017] EWCA Civ 879

which invited the President of the Employment Tribunals in England & Wales to issue fresh guidance to adjust the Vento figures for inflation and to incorporate the Simmons v Castle 10% uplift.

[35]The tribunal takes into account that the Presidents of the Employment Tribunals have produced Presidential Guidance on the matter, applicable to claims presented on or after 11 September 2017. The present claim was issued on 13 November 2017. The Page 5 of 6 applicable bands are: lowest £800 - £8,400; middle £8,400- £25,200; top £25,000 - £42,000.

[36]In determining the appropriate band, the tribunal has taken into account the guidance in Armitage, Marsden and HM Prison Service v Johnson

[1997] IRLR 162

EAT that such award must be compensatory just as an award in relation to loss of earnings should be compensatory. The award needs to be just to both parties and to compensate the claimant fully without penalty or punishment of the respondent. The tribunal takes into account that the award must not be so low as to diminish respect for the equality legislation nor so excessive as to be seen as awarding untaxed riches.

[37]The tribunal has also kept in mind that the claimant has had significant trauma in her personal life and it needs to keep separate in its deliberations such elements of the evidence that might properly relate to that.

[38]The claimant in evidence reaffirmed that her decision to resign was the result of what she regarded as the unfair pressure imposed by the respondent. The resignation in particular was the consequence of a significant loss of confidence and loss of self-esteem. This is how the claimant described it in evidence and the tribunal has accepted her evidence. Discrimination which results in dismissal is not a trivial matter and is not usually a one off or isolated occurrence. See: Voith Turbo Limited v Stowe

[2005] IRLR 228

EAT.

[39]The tribunal concludes that this case justifies a middle band award and it reflects the claimant’s statements made in her claim form and corroborated in her evidence that she had concluded that returning to work at the respondent was no longer an option. At the same time, the tribunal continued to take account of the fact that the claimant has been able to obtain alternative employment within a short period of time and has to her credit been able to move on with her life.

[40]The appropriate award in the tribunal’s judgment is in the middle band, which in accordance with the Presidential Guidance falls at a minimum of £8,400. The tribunal considers that the appropriate award in the present case is £8,500. The claimant is also entitled to interest albeit a small sum which the tribunal calculates at the rate of 0.5% since July 2017 (10 months), amounting to £354.16. Interest will accrue separately and additionally on the sum at a rate of 8% per year if not paid within 14 days of the written judgement date. The parties will be sent a separate notice in that respect by the tribunal.

[41]No separate award to reflect financial loss or personal injury is appropriate. EMPLOYMENT JUDGE BEEVER