Miss D Trench v Mr H Patel and Performance Bar Ltd: 2603993/2020
EMPLOYMENT TRIBUNALS
Case No 2603993/2020
Between
Miss D TrenchClaimant(1) Mr H Patel (2) Performance Bar LimitedRespondent
Before
Employment Judge Victoria ButlerDate 5 June 2022
JUDGMENT
The decision of the
REASONS
Conclusions
[1]The Claimant presented her claim to the Tribunal on 4 November 2020 following a period of early conciliation between 3 November 2020 and 4 November 2020. She claims unfair dismissal and was unrepresented at the time of submitting her claim.[2]The parties attended a closed telephone preliminary hearing before me on 14 July 2021. By this stage the Claimant had secured legal representation who emailed the Tribunal prior to the hearing to confirm that the Claimant also claims automatically unfair dismissal for whistleblowing under section 103A Employment Rights Act 1996 (“ERA”) and victimisation under s.27 Equality Act 2010 (“EQA”).[3]The Claimant’s position is that the claims of automatically unfair dismissal and victimisation are merely further particulars of matters already contained within the 1 of 3 narrative in the originating claim, but I noted the following in my case management summary: “However, the Tribunal listed the claim as an ‘ordinary’ unfair dismissal only and, whilst the Claimant ticked the box ‘if claiming discrimination, a recommendation’ in section 9 of the claim form (which asks Claimants what they want if they are successful in their claim), she did not tick any of the discrimination boxes at Section 8, nor does she mention whistleblowing in her narrative. I was of the view, therefore, that the new claims should be subject to an application to amend and I will determine it. Importantly, the question of whether Mr Patel can be dismissed as a Respondent to these proceedings can be determined once I have heard the application to amend - as the claim stands, there is no live discrimination claim against him”.[4]The Claimant’s representative suggested that the Claimant was also pursuing a whistleblowing detriment claim against Mr Patel, but I saw nothing within the narrative of the email dated 24 February 2021 to indicate this to be the case.[5]The parties were agreeable to me hearing the application to amend on the papers and I made an order that the Claimant submit the application by 30 July 2021. The application[6]The application to amend was received late on 3 August 2021 due to issues with the Claimant’s representative’s e-mail server the week before. I have no reason to doubt the explanation for the slight delay.[7]The application to amend consisted of an amended Grounds of Claim but no submissions addressing the considerations in Selkent Bus Company Ltd v Moore 1996 ICR 836 as incorporated into the ‘Presidential Guidance on General Case Management – amending the claim or response’. Absent those submissions, I am unable to consider all the circumstances and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Accordingly, the application is refused. Mr Patel[8]At it stands, the Claimant’s claim is for unfair dismissal under ss.94 and 98 ERA. Given that there is no claim for discrimination or whistleblowing detriment in existence, the Tribunal has no jurisdiction to hear a case against Mr Patel and the proceedings against him are, therefore, dismissed. 2 of 3
Background
[1]This judgment follows my judgment dated 21 September 2021 in which I refused the Claimant’s application to amend her claim because no submissions accompanied the updated Grounds of Claim. At the time of considering this application, the only live claim was one of ‘ordinary’ unfair dismissal under sections 94 and 98 Employment Rights Act 1996 (“ERA”).[2]By way of explanation, I repeat the history to the claim so far. The parties attended a closed telephone preliminary hearing before me on 14 July 2021. By this stage the Claimant had secured a legal representative who e-mailed the Tribunal on 26 February 2021 to confirm that the Claimant also claims automatically unfair dismissal for whistleblowing under section 103A Employment Rights Act 1996 (“ERA”) and victimisation under s.27 Equality Act 2010 (“EQA”). 1 of 7[3]The Claimant’s position is that the claims of automatically unfair dismissal and victimisation are merely further particulars of matters already contained within the narrative in the originating claim, but I noted the following in my case management summary: “However, the Tribunal listed the claim as an ‘ordinary’ unfair dismissal only and, whilst the Claimant ticked the box ‘if claiming discrimination, a recommendation’ in section 9 of the claim form (which asks Claimants what they want if they are successful in their claim), she did not tick any of the discrimination boxes at Section 8, nor does she mention whistleblowing in her narrative. I was of the view, therefore, that the new claims should be subject to an application to amend and I will determine it. Importantly, the question of whether Mr Patel can be dismissed as a Respondent to these proceedings can be determined once I have heard the application to amend - as the claim stands, there is no live discrimination claim against him”.[4]The Claimant’s representative suggested that the Claimant was also pursuing a whistleblowing detriment claim against Mr Patel, but I saw nothing within the narrative of the email dated 24 February 2021 to indicate this to be the case.[5]The parties were agreeable to me hearing the application to amend on the papers and I made an order that the Claimant submit the application by 30 July 2021. The application[6]The initial application to amend on 3 August 2021 comprised an amended Grounds of Claim but no accompanying submissions as to why the amendment should be allowed. Following my judgment dated 21 September 2021, those submissions were filed on 6 October 2021.[7]The Respondent was given the opportunity to respond to those submissions but, despite requesting further time to respond, failed to do so. Accordingly, I have proceeded with the application on the Claimant’s submissions alone. For the avoidance of doubt, I have had sight of the Respondent’s amended Grounds of Resistance filed on 20 August 2021.[8]As above, the Claimant’s application is to amend her claim to include claims of i) automatically unfair dismissal by reason of whistleblowing (s.103A ERA) in that she raised health and safety concerns about PPE and breaks; and ii) victimisation contrary to s.27 Equality Act 2010 (“EQA”) because she was dismissed after raising allegations of sexual misconduct.[9]The basis of the application is that the addition of these two claims amounts to a relabelling exercise and there is no hardship to the Respondent in allowing the 2 of 7 claim, particularly given that it has already responded to the amended Grounds of Claim.
The law
[10]The starting point in an application to amend is always the original pleading set out in the ET1. In Chandok v Tirkey 2015 ICR 527, the EAT said: “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with the time limits but which is otherwise free to be augmented by whatever the parties choose to add or subject merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a Respondent is required to respond. A Respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Rules of Procedure 2013, the claim as set out in the ET1.”[11]In dealing with an application to amend, the Tribunal will take into consideration its duty under the overriding objective: to ensure that the parties are on an equal footing; to deal with the case in a way that is proportionate to the complexity and importance of the issues; to avoid unnecessary formality and seek flexibility in the proceedings; to avoid delay so far as compatible with proper consideration of the issues; and to save expense.[12]In Cocking v Sandhurst Stationers Ltd [1974] ICR 650 the President held that regard should be had to all the circumstances of the case and in particular the Tribunal should “consider any injustice or hardship which may be caused to any of the parties if the proposed amendment was allowed or, as the case may, be refused”.[13]In Selkent Bus Company Ltd v Moore [1996] ICR 83 the EAT held that relevant circumstances include: "Whenever the discretion to grant an amendment is invoked, the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant:(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal has to decide whether the amendment sought is one 3 of 7 of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions e.g., in the case of unfair dismissal, S.67 of the 1978 Act.(c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time - before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision."[14]The Presidential Guidance on General Case Management (“the Guidance”) incorporates the factors set out in Cocking and Selkent.[15]In respect of re-labelling, the Guidance provides: “While there may be a flexibility of approach to applications to re-label facts already set out, there are limits. Claimants must set out the specific acts complained of, as Tribunals are only able to adjudicate on specific complaints. A general complaint in the claim form will not suffice. Further an employer is entitled to know the claim is has to meet”.
The issues
[16]Under ‘Time Limits’ the Guidance provides: “The Tribunal must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Where for instance a claimant fails to provide a clear statement of a proposed amendment when given the opportunity through case management orders to do so, an application at the hearing may be refused because of the hardship that would accrue to the respondent”.[17]A Tribunal can allow an application to amend but reserve any limitation points until the final hearing which might be necessary in cases where it is not possible to make a determination without hearing the evidence – Galilee v Commissioner of the Metropolis UKEAT/0207/16. Time limits 4 of 7
Findings of Fact
[18]S.123 EQA provides: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. Conclusions – Respondent (Performance Bar Limited)[19]The Claimant’s originating claim sets out clearly the factual background to the claim. On 24 October 2020, the Claimant’s boyfriend, who also worked at the Respondent, resigned rather than face dismissal. Later that day, he posted allegations on Facebook that Mr Patel, the Respondent’s Director, had made “inappropriate sexual advances to both staff and customers whilst drinking, as well as how he would ignore the covid guidelines and keep the business open longer, meaning some staff members wouldn't get breaks during their shift”. The Claimant liked and shared the post, albeit says she deleted it an hour later.[20]The next day, the Claimant was called into a meeting by the Respondent to discuss her actions in liking and sharing the post. She told the Respondent that she agreed with the contents of the post and raised allegations of sexual misconduct by Mr Patel, including inappropriate behaviour towards her personally. On 30 October 2020, she was dismissed for gross misconduct.[21]Given that the Claimant alleges that she discussed the matters forming the basis of the two additional claims in her originating claim, I am satisfied that the whistleblowing and victimisation claims amount to a relabelling of existing facts already pleaded against the Respondent. Given that I am satisfied that this is simply a matter of relabelling, I am not required to consider time limits but, for the avoidance of doubt, given that the act relied on in both claims is the Claimant’s dismissal, such claims were presented in time.[22]I am satisfied that there is no injustice or hardship to the Respondent in allowing the amendment given that it has already set out its response to the amendment and was aware of the facts unpinning the claims from the outset. Conclusions – Mr Patel
Background
[23]The Claimant still seeks to add Mr Patel as a named Respondent. He was initially named as a Respondent because the Claimant, who was unrepresented at the time, issued proceedings against him in error rather than the Respondent who was her employer. On 24 February 2021, the Claimant’s representative requested that the Respondent (Performance Bar Limited) be added as a second Respondent, which was duly done. 5 of 7[24]In my judgment dated 21 September 2021, I formally dismissed the claim against Mr Patel because the Tribunal did not have jurisdiction to hear a claim against him personally. Nature of the amendment[25]Turning to the application to amend, I have had regard to the originating claim and the amended Grounds of Claim. Within both, the Claimant raises allegations of inappropriate behaviour by Mr Patel towards her and other members of staff as background information. She does not say when they occurred, nor does she subsequently claim harassment. Her claim is confined to doing a protected act on 25 October 2020 and her subsequent dismissal.[26]In the amended Grounds of Claim, she simply says that ‘for the avoidance of doubt, the Claimant claims Mr Patel was material to the decision to discipline and dismiss’ (paragraph 7). This is simply a statement without any further detail supporting why she asserts this and, in my view, does not amount to a clear statement of the proposed amendment allowing Mr Patel to know the claim against him - particularly given he was not the decision maker, nor was he present at the investigatory or dismissal meetings.
The Law
[27]The first time this allegation is made against Mr Patel is within the amended Grounds of Claim and I am satisfied that it amounts to an entirely new claim against him. Time limits/timing and manner of the application[28]The initial application to amend was made on 3 August 2021, albeit was defective. However, even taking this date, the claim that Mr Patel was ‘material to the decision to discipline and dismiss’ is substantially out of time. The Claimant attended an investigatory meeting on 25 October 2020 and was dismissed on 30 October 2020. The allegation is, therefore, over nine months out of time.[29]The substantive application to amend made on 6 October 2021 asserts that it would be just and equitable to extend time to allow it to proceed because ‘the victimisation claim is founded on the same facts to be heard in the unfair dismissal claim and it is not in the interests of justice to deny the Claimant access to justice in consideration of a Convention Right’. Further, there is no prejudice because the Claimant’s representative alerted the Tribunal to the fact that she wanted to make the amendment on 24 February 2021. That may be so, but the application itself, or at the least the detail of the amendment was not provided until 3 August 2021, over five months later.[30]Within the application, there is no explanation for the length of, and reasons for, the delay in presenting the claim against Mr Patel; the extent to which the cogency of the evidence is likely to be affected by the delay; the promptness with which the Claimant acted once she knew of the facts giving rise to the claim; and the steps taken by her to obtain appropriate advice once she knew of the possibility of bringing the claim. It is for the Claimant to persuade me that it is 6 of 7 just and equitable to extend time and she failed to do so. Further, given that the claim against Mr Patel is inadequately pleaded and the substantial delay in making the claim, the balance of prejudice would fall against Mr Patel if the time limit was extended.[31]I am satisfied that that the claim against Mr Patel is an entirely new claim, it is not adequately pleaded, it is out of time (and it is not just and equitable to extend time) and there was a substantial delay in making the application to amend. Accordingly, the prejudice and hardship to Mr Patel in allowing the amendment would far outweigh that of the Claimant if it was refused. This is particularly so because the Claimant is not deprived of bringing a victimisation claim entirely given that the claim can proceed against the Respondent. Overall conclusion[32]The application to amend the claim to include claims for automatically unfair dismissal and victimisation against the Respondent (Performance Bar Limited) is allowed.[33]The application to amend the claim to include a victimisation claim against Mr Patel is refused.[1]The respondent is a bar in Lincoln. The claimant was employed by the respondent as a member of bar staff.[2]On 4 November 2020 following a period of Early Conciliation that started on 3 November 2020 and ended on 4 November 2020 the claimant issued proceedings in the Employment Tribunal. In the claim form she stated that her employment began on 4 November 2018 and ended on 8 November 2020, and that she had been unfairly dismissed.[3]The respondent says that the claimant’s employment started on 4 November 2018 but disputes the date of termination given by the claimant in her claim form. It says that the claimant was dismissed with immediate effect on 30 October 2020 for gross misconduct. At the start of the final hearing the claimant’s representative confirmed that the claimant now accepts that her employment terminated on 30 October 2020, but argues that her employment started on 26 October 2018.[4]The claim, which appears to have been prepared and filed by the claimant as a litigant in person, named Mr Himesh Patel as the respondent to the claim. Mr Patel is, we understand, the owner of Trebles / Performance Bar Limited. On 24th February 2021 the claimant’s representative wrote to the Tribunal. In her email, amongst other things, she asked for Performance Bar Limited to be added as a respondent to the claim.[5]On 25 February 2021 Employment Judge Adkinson ordered that Performance Bar Ltd be added as a respondent to the proceedings in accordance with Rule 34 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the Rules”). He also ordered that the final hearing, which had originally been listed in March 2021 be postponed and that a telephone case management discussion take place.[6]On 14 July 2021 a Preliminary Hearing took place by telephone before Employment Judge V Butler. The claimant, who was represented at that hearing, indicated that she wished to amend her claim. She was ordered to make any application to amend by 30 July 2021, and the respondent was ordered to respond to the application to amend by 20 August.[7]On 21 September 2021 Employment Judge V Butler:a. Refused the claimant’s application to amend her claim to include complaints of automatically unfair dismissal under section 103A of the Employment Rights Act 1996 (“the ERA”) and of victimisation under section 27 of the Equality Act 2010 (“the EQA”); andb. Dismissed the claim against Mr H Patel and removed him as a respondent to the proceedings;[8]On 19 January 2022 Employment Judge Butler allowed the claimant’s application to amend the claim to include claims for automatically unfair dismissal under section 103A of the ERA and for victimisation under section 27 of the EQA. She refused the claimant’s application to amend the claim to include a complaint of victimisation against Mr Patel. The Proceedings[9]The hearing took place via Cloud Video Platform (“CVP”).[10]We heard evidence from the claimant and, on behalf of the respondent, from Ian Hughes, General Manager, and Dale Robinson, former General Manager.[11]The Tribunal was provided on the first morning of the hearing with an electronic bundle of documents in a pdf format. The bundle, which ran to a total of 215 pdf pages comprised an index, 196 paginated pages and three witness statements which were not paginated.[12]Both advocates also provided written skeleton arguments, for which we are grateful.[13]The parties had not agreed a List of Issues, and we therefore spent some time at the start of the hearing identifying the issues which the Tribunal would have to decide, and which are set out below.[14]The main area of dispute between the parties in relation to the List of Issues was about the alleged protected disclosures which the claimant relies upon in relation to her complaint that her dismissal was automatically unfair under section 103A of the ERA. The claimant sought to rely upon disclosures made orally on 25 October 2020 before she was suspended and by sharing and liking a Facebook post on the 24 October 2020 which she says disclosed information tending to show:a. That the respondent breached its legal obligation to avoid the sexual harassment of workers when the respondent’s owner, Mr Patel, repeatedly attempted to kiss a member of staff whilst they were working; andb. That the respondent had breached its legal obligations under the Working Time Directive by failing to provide breaks for staff.[15]The respondent objected to the claimant putting her case in this way. It said that the case is not pleaded in that way, despite the claimant having made two applications to amend her claim, and objected to the claimant being given leave to amend her claim. The respondent submitted that the pleaded case refers to disclosures of information tending to show a breach of health and safety legal obligations in relation to PPE.[16]The respondent also objected to the claimant relying on a ‘combined’ disclosure of(1) liking and sharing a Facebook page on 24 October and(2) comments made orally on 25 October in a meeting with Dale Robinson and Ian Hughes. These changes to the pleaded case, in the respondent’s submissions, required an application to amend the claim.[17]Both parties made submissions as to whether the claimant should be allowed to argue her case by relying on the disclosures set out at paragraph 14 above. Ms Jiggens clarified that she was not seeking to argue that liking and sharing the Facebook post was a discrete protected disclosure, but rather that, when combined with the information disclosed orally on 25 October, there was a protected disclosure.[18]After considering carefully the submissions made by both parties, the Tribunal decided unanimously to allow the claimant to amend her claim to include the disclosures set out in paragraph 14 above. Whilst we were concerned by the timing of the application to amend the claim, the nature of the amendment was a minor one, and amounted to a mere relabeling of facts previously pleaded. No further evidence would be required as a result of the amendment, but merely a change in submissions. Given that the respondent is legally represented we saw no prejudice to the respondent in allowing the amendment. The Issues[19]The parties had been unable to agree a List of Issues to be determined at the hearing. At the outset of the hearing and following the claimant’s successful application to amend the claim, the following issues were discussed and agreed.[20]What date did the claimant’s employment start? The claimant says 26 or 29 October 2018, the respondent says 4 November 2018.[21]Should the effective date of termination of the claimant’s employment be extended from 30 October 2020 to 6 November 2020 in accordance with section 97(2) of the ERA?[22]What was the reason or principal reason for the dismissal? The respondent says that it was conduct. The claimant says that it was because she made a protected disclosure.[23]If the reason for dismissal was conduct, did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?a. Did the respondent genuinely believe that the claimant had committed misconduct?b. Did the respondent have reasonable grounds for holding that belief?c. At the time the belief was formed had the respondent carried out a reasonable investigation?d. Did the respondent act in a procedurally fair manner?e. Was dismissal within the range of reasonable responses?[24]If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?[25]If so, would it be just and equitable to reduce the claimant’s compensatory award and/ or basic award? By what proportion?[26]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? Automatically unfair dismissal: section 103A of the ERA[27]Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The claimant says that she made a disclosure orally to her employer on 25 October 2020, which incorporated and referred to a Facebook post that she had shared and liked on 24 October 2020.a. Did the claimant disclose information?b. Did she believe that the disclosure of information was made in the public interest?c. Was that belief reasonable?d. Did the claimant believe that it tended to show that: i. A person had failed, was failing or was likely to fail to comply with any legal obligation; and / or that ii. The health or safety of any individual had been, was being or was likely to be endangered?e. Was that belief reasonable?[28]The claimant says she made a protected disclosure orally in a meeting with Ian Hughes and Dale Robinson on 25 October 2020 when she disclosed information about a Facebook post that she had liked and shared on 24 October 2020 and other information tending to show:a. That the respondent breached its legal obligation to avoid the sexual harassment of workers when the respondent’s owner, Mr Patel, repeatedly attempted to kiss a member of staff whilst they were working; andb. That the respondent had breached its legal obligations under the Working Time Directive by failing to provide breaks for staff.[29]The claimant asserts that these disclosures fall within section 43B(1)(b) and (d) of the ERA.[30]If the claimant made a qualifying disclosure was it a protected disclosure under section 43C of the ERA because it was made to the claimant’s employer?[31]Was the reason or principal reason for dismissal that the claimant made a protected disclosure? Victimisation: section 27 Equality Act 2010[32]Did the claimant do the following protected acts:a. Share and like a Facebook post written by Dan Sergeant on 24 October 2020 which contained allegations of sexual harassment of female staff and customers; and/orb. Make allegations of sexual harassment of female staff to Ian Hughes and Dale Robinson in a meeting on 25 October 2020?[33]Did the respondent believe that the claimant had done or might do a protected act?[34]Did the respondent dismiss the claimant because it believed that she had done, or might do, a protected act? Remedy
Conclusions
[35]If any of the claimant’s claims succeed, what sums should be awarded to her by way of compensation?[36]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?[37]If so, should the claimant’s compensation be reduced? By how much?[38]If the claimant was unfairly dismissed, did she cause or contribute to dismissal by blameworthy conduct?[39]If so, would it be just and equitable to reduce the claimant’s compensatory and/or basic award because of that conduct? Findings of Fact[40]The following findings of fact are made unanimously by the Tribunal.
Background
[41]In October 2018 the claimant applied for a job in the respondent’s bar, Trebles. She was interviewed for the post by Dale Robinson who was, at the time, General Manager of the bar. The interview took place on 22nd October 2018 and went well. Mr Robinson indicated that the claimant was likely to be offered the job, subject to the completion of a trial shift. The purpose of the trial shift was for both parties to decide whether they wanted to go ahead with the claimant’s employment.[42]On Friday 26 October 2018 the claimant worked a trial shift of one hour. She was not paid for the trial shift at the time and, had she not gone on to take up employment with the respondent, would not have been paid for it. The trial shift was part of the respondent’s recruitment process and was much shorter than a normal shift for employees. At the time she applied for the job with the respondent, and at the time of the trial shift, the claimant had a job at another bar in Lincoln.[43]On Monday 29 October 2018 Dale Robinson sent an email to the claimant asking her whether she was still interested in the position and if so, what her notice period was in her current employment, so that he could get her added to the respondent’s rota.[44]The claimant replied the same day saying that she was still interested and that her last shift in her other employment would be on 3 November.[45]On 31 October the claimant resigned from her job in the other bar.[46]On 4 November 2018 Mr Robinson sent an email to the claimant at 2.11 am to confirm her start with the respondent. He told the claimant that the respondent had rota’d her to work from the following Friday, that he would get her added to the Facebook staff page, and asked her to bring in some form of identification and her National Insurance number on the Friday.[47]The claimant’s first full shift was on 9th November 2018. She was not issued with a contract of employment or a statement of employment terms and conditions. On her first shift Dale Robinson went through an induction process with her. This included giving her copies of certain documents including the respondent’s House Rules, but he did not give her a contract of employment or a statement of terms and conditions. At no point during her employment with the respondent was the claimant provided with a written contract or statement of terms and conditions.[48]Throughout the period that the claimant was employed by the respondent the respondent did not have a disciplinary policy, a grievance policy, a policy dealing with harassment and equality, or a social media policy. A social media policy was drafted at one point, but it was not shared with the claimant.[49]The respondent is owned by Himesh Patel. Mr Patel visits the bar most days both as owner and as a customer. He often drinks in the bar and leaves the day to day management of the bar to Mr Hughes and the rest of the management team. There are four members of the management team who were, at the relevant time, Mr Hughes, Dale Robinson and two female supervisors.[50]The respondent is a small business with approximately 14 employees at any one time. Many of its staff and customers are students. Events of 24 October 2020[51]The claimant’s partner, Dan Sargeant, also worked at the respondent’s bar. On 24th October 2020 he resigned with immediate effect at the end of his shift. The reason he resigned was because he was told by the respondent that it believed he had been drinking alcohol during his shift, and that he had been repeatedly late for work. The respondent explained that disciplinary action would be taken, but also offered him the opportunity to resign. He chose to resign rather than face disciplinary action.[52]After resigning from the respondent’s employment, Mr Sargeant went home and wrote a Facebook post which was highly critical of the respondent and its owner, Mr Patel. He shared the post on a Facebook page called “Overheard at University of Lincoln” which has approximately 20,000 members, some of whom may be customers of the respondent.[53]In the post Mr Sargeant wrote: “TREBLES is a messed up place I’ve worked there over a year until tonight. The owner HIMESH PATEL is a creepy and wildly inappropriate man he has made countless creepy comments to most of the female staff including asking a member of staff who still works there if he could have a threesome with her, he came in drinking one night and tried to kiss a member of staff, she had to stop him 3 times before he finally fucked off, these are just a couple of the many times he’s acted like this with staff. He does the same to customers, recently a 17 year old managed to sneak in and he joined their table and creeped on them, he tends to approach girls and tell them he’s the owner, buy them drinks and creep on them, he does this most times he comes in. He has no interest in the wellbeing of the staff, cutting corners in PPE for Covid leaving the staff and customers unsafe, as well as not following Covid safety rules, such as not wearing a mask. Some of the staff aren’t given breaks after having shifts over 7 hours. Mate I’m not saying don’t go trebles because I actually like the place, but the owner is a creepy cunt that treats his staff like this”[54]Mr Sargeant originally made the post at approximately 11 pm on 24 October 2020. Within 20 minutes however the moderators of the Overheard at University of Lincoln Facebook page took the post down, because they were concerned that it was defamatory and contained hearsay. Mr Sergeant then posted it on his personal Facebook page with the comment “Overheard took this down so back up it goes”. The post was also shared on a Facebook page called “Lincoln Girl Gang Safety Chat” where several people commented on it.[55]The claimant, at approximately 11.30 pm, and after she became aware that Overheard at University of Lincoln had taken the post down, liked Mr Sargeant’s post and shared it both on her own Facebook page and on SnapChat. The reason she did this was because she agreed with the content of the post and wanted to spread awareness about Mr Patel’s behaviour. She was concerned to protect female customers and potential customers of Trebles from possible harassment by Mr Patel, and to protect all customers against possible breaches of Covid safety rules.[56]The claimant had approximately 1,200 Facebook friends at the time and did not know how many people would have seen her SnapChat post. The claimant accepted that her Facebook friends would have seen her post, and that her Facebook friends included people who worked in other bars in Lincoln and customers of the respondent.[57]The claimant was the only member of the respondent’s staff to share the Facebook post, as her partner Mr Sargeant was no longer an employee of the respondent. There was no evidence before us of any other member of staff having posted criticism of the respondent on social media. Except for the comments about not providing staff with breaks, the claimant had not raised any of the issues set out in the Facebook post with any members of the respondent’s management team before she shared and liked the post publicly.[58]The claimant knew on the evening of 24th October that the Facebook post reflected badly on Trebles. Not only did the moderators of Overheard at University of Lincoln take the post down quickly, but members of Trebles’ staff contacted Dan Sargeant to ask him to take the post down due to it looking badly on Trebles. The claimant and Mr Sargeant were living together at the time and the claimant was aware that colleagues contacted Mr Sargeant and asked him to delete the post.[59]The claimant deleted her post on both SnapChat and on her Facebook page within an hour or two of having originally posted it. Before she did so however, several people liked and commented on her Facebook post.[60]The managers of Trebles - Mr Hughes and Mr Robinson, also saw the Facebook post and were very concerned about it. On 25th October 2020 the claimant was invited to a meeting at which Ian Hughes, Dale Robinson and Gaby Smithson (Trainee Assistant Manager) were present. Dale Robinson took notes of that meeting, which were not a verbatim record of what was said.[61]During the meeting Mr Hughes and Mr Robinson went through the Facebook post in detail with the claimant. The claimant was told that the respondent was concerned that by liking and sharing the post she was essentially showing that she supported the things that it said about Trebles. The claimant appeared to understand and accept this but said that she was supporting the allegations made about Mr Patel, rather than the allegations about the bar.[62]The focus of the respondent’s concerns were the comments made at the start of the post about Trebles being “messed up”, and about the suggestions in the post that the respondent was not providing PPE for staff, or following Covid safe operating procedures, was not allowing staff to take breaks and was allowing under age drinking. Ian Hughes and Dale Robinson had both been involved in implementing Covid safe ways of working at Trebles, and Mr Hughes therefore had personal knowledge of the safety measures in place. He believed that the allegations made in the post about providing insufficient PPE and not following Covid safe procedures were untrue.[63]Mr Hughes also knew that staff were now provided with breaks. There had been occasions previously when the bar had reopened following lockdown when staff had worked more than six hours without a break. The claimant had raised the question of breaks with the respondent in August 2020 and, as a result of this, the respondent had put systems in place to ensure that all staff got breaks. Mr Hughes therefore knew that the allegations about lack of breaks were no longer true at the time that they were made, and that the claimant would have known that.[64]The claimant accepted in her evidence that when she had raised concerns about breaks with the management of the bar, they had listened to her and responded by making sure that, from then onwards, all staff got breaks. There was no adverse action taken against the claimant when she raised the question of breaks in the past, but to the contrary the respondent responded positively to her concerns and made changes in working practices.[65]During the meeting on 25 October, the claimant was asked if she wanted to put in a complaint about Mr Patel’s behaviour and she said that she did. She believed that her complaint would be dealt with when she returned to work following her suspension. In the event, no investigation was carried out into the claimant’s complaints about the behaviour of Mr Patel.[66]Mr Hughes held a meeting with staff, after the claimant was dismissed, to ask them if they had any concerns that they wished to raise. Nobody raised any concerns. This did not however lead us to conclude that the allegations of sexual harassment against Mr Patel were untrue, given that Mr Patel owned the bar and there was no process or policy enabling staff to speak up about sexual harassment.[67]During the meeting on 25 October Mr Hughes told the claimant that the post could be seen as ‘negative against Trebles’, and she agreed with this. He also told her that if the post hadn’t referred to Trebles as a ‘messed up’ place, it might have been OK, and that if the post had just been about Hamesh Patel then it would have been fine.[68]We found Ian Hughes to be a straightforward and honest witness, who was willing to admit when he couldn’t remember what had happened given the length of time that has elapsed since October 2020. He was very clear in his evidence that it was the comments about Trebles, PPE, Covid safety, breaks and underage drinking that were of concern to him, and not the comments about Mr Patel’s behaviour. We accept his evidence.[69]At the end of the meeting on 25 October the claimant was suspended with immediate effect. The respondent sent her a letter confirming her suspension. The letter stated that the claimant was being suspended “pending investigation into an allegation of misconduct” and that “When we have carried out our investigation, we shall write to inform you whether we intend to hold a disciplinary hearing. If we consider that there are grounds for disciplinary action we shall inform you of those grounds in writing and you will have the opportunity to state your case at the hearing, in accordance with the Disciplinary Procedure”.[70]Although the respondent told the claimant that an investigation would be carried out, none was in fact carried out. Instead, Mr Hughes took advice from a business consultant who advised him that the respondent should focus on the comments made in the Facebook post about the business and dismiss the claimant for the comments made about Trebles.[71]The claimant was subsequently invited to a disciplinary meeting. Contrary to what the respondent had written in the letter suspending the claimant, the grounds for disciplinary action were not set out in writing, and the respondent did not have a disciplinary procedure in place. The claimant was however told that she could bring a representative to the meeting with her.[72]The meeting was originally scheduled for 28 October 2020, but the claimant was unwell, so it was rescheduled to 30 October. At the meeting on 30 October the claimant was dismissed for gross misconduct. It was clear to us that the decision to dismiss had been made before the meeting on 30 October.[73]Mr Hughes told us that the decision to dismiss was his, on the advice of the business consultant. He also told us that he had considered sanctions other than dismissal but formed the view with the advice of the consultant, that given the severity of the comments in the post, the claimant should be dismissed.[74]One of the concerns that Mr Hughes had was that the allegations that the claimant had made about breaks and PPE were not true at the time she liked and shared them, and he believed that she knew they weren’t true. This was because she had been instrumental in getting the issue of breaks sorted for staff several weeks earlier, and she knew the steps that had been taken to make the bar Covid secure. Mr Hughes said in evidence that had the concerns she’d raised about health and safety been true, they would not have dismissed her but would have worked with her to resolve them. In light of the approach taken when the claimant raised the issue about lack of breaks previously, we accept this evidence.[75]Having heard the evidence of Mr Hughes, we find that the reason the claimant was dismissed was because of the health and safety issues that the claimant had raised and the comments about the bar, which Mr Hughes felt could have seriously damaged the reputation of the bar and which had been shared, albeit briefly, with customers and competitors of the respondent. We accept Mr Hughes’ evidence that the claimant was not dismissed because she raised allegations of sexual harassment against Mr Patel. The claimant’s own evidence was that Mr Hughes told her on 25 October that if it was just the allegations against Mr Patel, they wouldn’t be there.[76]Mr Hughes wrote to the claimant confirming her dismissal. In his letter he stated that: “After our investigation meeting, we found that by sharing and liking the post on social media that’s in question, it is detrimental to our business (Trebles). This is an act of gross misconduct and cannot be taken lightly. We have decided to terminate your employment with immediate effect due to the seriousness of your act…”[77]There was no mention in the letter of the right to appeal against the decision. The claimant did not appeal against the decision to dismiss her because, quite simply, she did not know that she could. The Law Length of service
The Law
[78]In order to bring a complaint of ordinary unfair dismissal, an employee must have two complete years’ service with the respondent, in accordance with section 108(1) of the ERA: “Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.”[79]The definition of the ‘effective date of termination’ is set out in section 97 of the ERA which provides that: “(1) Subject to the following provisions of this section, in this Part “the effective date of termination” – … (b) In relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect… (2) Where –(a) The contract of employment is terminated by the employer, and(b) The notice required by section 86 to be given by an employer, if duly given on the material date, expire on a date later than the effective date of termination (as defined by subsection (1)) for the purposes of sections 108(1), 119(1) and 227(3) the later date is the effective date of termination. (3) In subsection (2)(b) “the material date” means – (a) The date when notice of termination was given by the employer, and (b) Where no notice was given, the date when the contract of employment was terminated by the employer.[80]Section 86 of the ERA sets out the minimum periods of notice that an employer (and an employee) must give to terminate a contract of employment. The relevant provisions are – “(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more –(a) Is not less than one week’s notice if his period of continuous employment is less than two years,(b) Is not less than one week’s notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years… (6) This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party…”[81]The combined effect of these provisions is that, where an employee who has more than one month’s service is dismissed without notice, the statutory period of notice of one week is added on to the employee’s period of continuous employment, unless the employee is guilty of gross misconduct.[82]Section 211 of the ERA (Period of continuous employment) provides that: “(1) An employee’s period of continuous employment for the purposes of any provision of this Act –(a) …begins with the day on which the employee starts work, and(b) Ends with the day by reference to which the length of the employee’s period of continuous employment is to be ascertained for the purposes of the provision…”[83]Continuous employment starts upon the first day that the claimant works for the respondent. Work carried out before an official start date will not count towards continuous employment under section 211(1)(a) ERA unless it is clearly carried out under a contract of employment. Smith v The International Development Co plc EATS 1422/01[84]There is therefore a distinction between preparatory work or work carried out under an ancillary contract and work carried out under a contract of employment.[85]In an unfair dismissal case, such as this one, where the respondent admits that it dismissed the claimant, the respondent must establish that the reason for the dismissal was one of the potentially fair reasons set out in section 98(1) and (2) of the Employment Rights Act 1996.[86]Section 98(1) provides that: “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”[87]Section 98(4) states as follows: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) Shall be determined in accordance with equity and the substantial merits of the case. “[88]Where a Tribunal finds that a claimant has been unfairly dismissed, the respondent can be ordered to pay a basic award and a compensatory award to the claimant. Sections 119 to 122 of the ERA contain the rules governing the calculation of a basic award and include, at section 122(2) the power to reduce a basic award to take account of contributory conduct on the part of a claimant: - “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. “[89]The rules on compensatory awards are set out in sections 123 and 124 of the ERA and include, at section 123(6) the following: - “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[90]The leading case on contributory conduct is Nelson v BBC (No.2) 1980 ICR 110 in which the Court of Appeal held that, for a Tribunal to make a finding of contributory conduct, three factors must be present:-a. There must be conduct which is culpable or blameworthy;b. The conduct in question must have caused or contributed to the dismissal; andc. It must be just and equitable to reduce the award by the proportion specified. 91. ‘Culpable or blameworthy’ conduct can include conduct which is ‘perverse or foolish’, ‘bloody-minded’ or merely ‘unreasonable in all the circumstances’ (Nelson v BBC (No.2)).[92]In Polkey v AE Dayton Services Ltd 1988 ICR 142 the House of Lords held that it is, in most cases, not open to an employer to argue where there are clear procedural failings, that following a different procedure would have made no difference to the outcome (ie the employee would still have been dismissed) and that accordingly the dismissal is fair. Their Lordships did however find that when deciding the amount of compensation to be awarded to an employee who has been unfairly dismissed, a deduction can be made if the Tribunal concludes that there is a chance that the employee would have been dismissed anyway had a fair procedure been followed. Automatically unfair dismissal: section 103A of the ERA[93]Section 103A of the ERA provides that “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.[94]In a complaint under section 103A of the ERA an employee does not need to have two years’ continuous employment. Where an employee does not have two years’ service however, the burden of proving, on the balance of probabilities, that the reason for dismissal was an automatically unfair one lies with the employee (Smith v Hayle Town Council 1978 ICR 996).[95]A Tribunal can draw an inference as to the real reason for the dismissal[96]Section 43A of the Employment Rights Act 1996 (“the ERA”) defines a protected disclosure as “a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[97]Section 43B of the ERA (“Disclosures qualifying for protection”) provides as follows: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –(a) That a criminal offence has been committed, is being committed or is likely to be committed,(b) That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) That a miscarriage of justice has occurred, is occurring or is likely to occur,(d) That the environment has been, is being or is likely to be damaged, or(e) That information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed…”[98]Under section 43C of the ERA (“Disclosure to employer or other responsible person”): “(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure (a) To his employer… (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.”[99]In Cavendish Munro Professional Risks Management Ltd v Geduld [2010] ICR 325 the EAT considered what amounts to a ‘disclosure of information’ and held that there is a distinction between disclosing information, which means ‘conveying facts’ and making allegations or expressing dissatisfaction. It gave, as an example of disclosure of information, a hospital employee saying ‘wards have not been cleaned for two weeks’ or ‘sharps were left lying around’. In contrast, the EAT held, a statement that ‘you are not complying with health and safety obligations’ is a mere allegation.[100]The Court of Appeal, in Kilraine v London Borough of Wandsworth [2018] ICR 1850, established that ‘information’ and ‘allegation’ are not mutually exclusive. There must, however, be sufficient factual content tending to show one of the matters in subsection 43B(1) of the ERA in order for there to be a qualifying disclosure.[101]The information disclosed by the worker does not have to be true, but rather, the worker must reasonably believe that it tends to show one of the matters falling withing section 43(B)(1). The employee must also reasonably believe that the disclosure is in the public interest. When deciding whether the worker had the relevant ‘reasonable belief’ the test to be applied is both subjective (ie did the individual worker have the reasonable belief) and objective (ie was it objectively reasonable for the worker to hold that belief). See Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, which was endorsed in Phoenix House Ltd v Stockman [2017] ICR 84, in which the EAT held that, on the facts believed to exist by an employee, a judgment must be made, first, as to whether the worker held the belief and, secondly, as to whether objectively, on the basis of the facts, there was a reasonable belief in the truth of the complaints.[102]When considering whether a disclosure is in the public interest, the Tribunal must decide what the worker considered to be in the public interest, whether the worker believed that the disclosure served that interest and whether that belief was held reasonably. In Chesterton Global Ltd (t/a Chestertons) and anor v Murmohammed (Public Concern at Work intervening) [2018] ICR 731 the EAT held that it is not for the Tribunal to consider for itself whether a disclosure was in the public interest, but rather the questions are(1) whether the worker making the disclosure in fact believes it to be in the public interest and(2) whether that belief was reasonable. Tribunals should be careful not to substitute their views of whether disclosures are in the public interest for that of the worker.[103]Following Chesterton, there are four questions for the Tribunal to consider when deciding whether a disclosure is made in the public interest:a. the numbers in the group whose interests the disclosure served;b. the nature of the interests affected and the extent to which they are affected by the matters disclosed;c. The nature of the wrongdoing disclosed, and in particular whether it was deliberate or inadvertent; andd. The identity of the employer. Victimisation: section 27 Equality Act 2010[104]Section 27 of the Equality Act 2010 states as follows: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith…”[105]Although Tribunals must not make too much of the burden of proof provisions (Martin v Devonshires Solicitors [2011] ICR 352) in a victimisation claim it is for the claimant to establish that she has done a protected act and has suffered a detriment. There needs to be some evidence from which the Tribunal could infer a causal link between the protected act and the detriment, for example, the detriment occurs soon after the protected act, or others were not treated in the same way.[106]It has been suggested by commentators that the three stage test for establishing victimisation under the pre-Equality Act legislation, endorsed by Baroness Hale in Derbyshire and ors v St Helens Metropolitan Borough Council and ors [2007] ICR 841 can be adapted for the Equality Act so that it involves the following questions:a. Did the alleged victimisation arise in any of the prohibited circumstances set out in section 27?b. If so, did the respondent subject the claimant to the alleged detriment?c. If so, was the reason the claimant was subjected to the detriment that the claimant had done, or might do, a protected act?[107]Following the decision of the House of Lords in Nagarajan v London Regional Transport [1999] ICR 877 it is not necessary in a victimisation case for the Tribunal to find that the employer’s actions were consciously motivated by the claimant’s protected act. Victimisation may occur if the discriminator was subconsciously affected by the protected act, and it had a ‘significant influence’ on his or her treatment of the claimant. An employer can be liable for an act of victimisation even where the motives for the treatment of the claimant are benign. Submissions[108]Both parties made detailed written and oral submissions which we have taken into account when making our decision. We summarise below the oral submissions made by each party. Claimant[109]Ms Jiggens submitted that the claimant’s employment started on 26 October 2018, which was the first day that she had been paid to work and lasted until she was dismissed on 30 October 2020. In the alternative she argues that employment started on 29 October when the claimant and respondent exchanged emails confirming the claimant’s employment.[110]She also argues that if the Tribunal finds that employment started on 4 November 2018, then under sections 97 (2)(b) and 108(1) of the ERA the nature of the misconduct that the respondent asserts is the reason for the dismissal is a brief period overnight on a Saturday when the claimant liked and shared someone else’s Facebook post. In the absence of any disciplinary policy and any social media policy these were not circumstances that entitled the employer to terminate the contract without notice. As such the effective date of termination should be deemed to be 6 November 2020, giving the claimant the required length of service to pursue a claim of ordinary unfair dismissal.[111]Ms Jiggens submitted that it is for the employer to show the reason for dismissal and, if more than one reason, the principal reason for dismissal. She reminded the Tribunal that it should consider whether dismissal is within the range of reasonable responses and must not substitute its view for that taken by the employer.[112]She also submitted that the ACAS Code of Practice must be considered by the tribunal in deciding the fairness of the dismissal. The claimant’s case is that the respondent failed at every step to comply with the ACAS code. The respondent did not even carry out the steps set out in the suspension letter. The respondent did not articulate a specific disciplinary charge and no investigation was carried out. The decision to dismiss was based on the advice of a business consultant that liking and sharing a Facebook post amounted to gross misconduct. Mr Hughes’ evidence was that he did not consider any alternatives to dismissal.[113]When asked what investigation the respondent should have carried out, Ms Jiggens submitted that the respondent should have found out if the claimant was aware of the alleged unwritten social media policy, and whether the claimant did believe the comments made in the Facebook post to be untrue. There was no investigation into the impact of the claimant’s liking and sharing the Facebook post, as opposed to any damage caused by her partner writing and sharing the post. There was no investigation into the truth of the allegations in the post. Mr Hughes criticised the claimant for not appealing against the decision to dismiss her but gave her no opportunity to appeal.[114]In relation to the victimisation complaint, the claimant argues that it is not plausible for the respondent to maintain that the claimant was dismissed for the health and safety complaints within the Facebook post, rather than the allegations of sexual harassment. The comments that the dismissal was not linked to the allegations of sexual harassment were merely an attempt to cover up that protected acts were at the heart of the reason for dismissal.[115]Ms Jiggens relies on protected acts made under both section 27 (c) and 27(d) of the EQA. The claimant’s act of liking and sharing the post fell within section 27(c), she argues. A protected act does not necessarily have to be an allegation of a breach of Part 5 of the EQA act, namely the work provisions, and allegations of breach of the legislation applying to service providers can amount to a protected act.[116]Ms Jiggens referred to Martin v Devonshire and in particular to paragraphs 22, 23 and 24 of the Employment Appeal Tribunal’s judgment. She accepts that a distinction can be made between the content of a protected act and the manner in which it is made.[117]The claimant’s submission is that it is not credible that the respondent had a genuinely separable reason for dismissal. Mr Hughes’ evidence was that the respondent did not investigate any of the sexual harassment complaints. This is not a case in which the claimant had been instructed not to speak to the media but continued to do so.[118]The protected act does not need to be the only or even the principal reason for dismissal for the claimant to succeed in her victimisation complaint. If the protected act had a more than trivial impact on the decision to dismiss then victimisation is made out in Ms Jiggens’ submission.[119]In relation to the automatic unfair dismissal under S103A of the ERA, Ms Jiggens said that the question is whether the principal reason for the dismissal was the protected disclosure. She accepts that protected disclosure has a much narrower definition than protected act. She relied on the case of Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540 as authority for the proposition that multiple disclosures (namely the sharing and liking of the Facebook post on 24 October and the verbal disclosures on 25 October) can be aggregated to make a single disclosure.[120]The claimant shared and liked the Facebook post to raise awareness of the risks to women of the behaviour of Mr Patel. The claimant’s position is that the respondent’s reaction to her liking and sharing the Facebook post and her ultimate dismissal were precisely because her protected disclosures contained allegations of breaches of legal obligations.[121]Ms Jiggens also submitted that the respondent had not followed a fair procedure, had made no attempt to do so, and had presumed that the contents of the Facebook post were false without any investigation. The decision to dismiss was therefore way beyond the range of reasonable responses and was because the claimant raised health and safety concerns and allegations of sexual harassment.[122]In relation to Polkey and contributory conduct Ms Jiggens submitted that liking and sharing a Facebook post without any policy prohibiting her from doing so cannot justify a dismissal and that any fair procedure would have resulted in a lower sanction. It was not reasonable for an employer which employs almost exclusively people of the claimant’s generation and who did not tell staff that they could not post on social media their legitimately held views to dismiss someone who did so. If an employer wishes to restrict what employees can say on social media than it has to say so. It is natural behaviour for the claimant’s generation to post on social media. They have the right to post whatever they want on social media if they believe it to be true and have not been told not to do it. Respondent[123]Mr Castle submitted that the claimant’s submissions are not supported by the evidence in the case. The evidence of both of the respondent’s witnesses was clear and both witnesses made appropriate concessions. He described the evidence of Mr Hughes as being frank and artless. Mr Hughes, he says, does not know the jargon of the employment legislation but came across as someone having a sense of natural justice. He did not come across as Mr Patel’s enforcer. The claimant in her evidence had accepted that Mr Hughes ‘heard her out’ both during the disciplinary hearing and on other occasions, and that Mr Hughes was not concerned with the allegations made against Mr Patel from a disciplinary perspective. The claimant’s evidence therefore mainly coincides with that of Mr Hughes.[124]In Mr Castle’s submission, the evidence of both sides was that Trebles is a friendly bar with a friendly atmosphere and good relationships between staff and managers. Staff concerns were taken seriously and there was always someone to go to. The claimant accepted in her evidence that the Facebook post she liked and shared was negative about Trebles. It was also common ground that other people had commented on the post she shared. Mr Hughes’ evidence was that the ‘likes’ of the post were from the post that she shared (as opposed to her partner’s post) and that there was therefore evidence of widespread sharing of the post and of reputational damage.[125]The claimant conceded in cross examination that the question of breaks had now been resolved and that there were rules in place to keep staff and customers safe from Covid, including social distancing. It was also common ground that Mr Hughes told the claimant that facemasks were not compulsory at the time the post was written. It therefore follows from the common ground that the final third of the Facebook post (the allegations about breaks and PPE) was not true, and that the claimant knew it wasn’t true.[126]Ian Hughes properly took advice after he had already told the claimant that his concerns about the Facebook post were the first sentence (that Trebles was ‘messed up’) and the final third. There was, Mr Castle submitted, no need for any further investigation because the disciplinary charge had been admitted by the claimant.[127]The claimant understood that she had been dismissed for sharing a Facebook post that could have caused damage to the business. It was also the claimant’s evidence that the post had been flagged as defamatory by the moderators of the Overheard at Lincoln Facebook page, and that she knew that when she shared it. The claimant acknowledged that she had made a mistake and paid the price for it.[128]It is, in Mr Castle’s view, commonsense that whether or not there is a policy in place; if an employee says publicly to customers and competitors that her employer’s venue is unsafe, that amounts to gross misconduct.[129]Mr Castle submits that the claimant was dismissed for the first sentence and the final third of the Facebook post. The claimant had accepted that the people she shared the post with included friends in Lincoln, people who work in bars in Lincoln and customers of the respondent. She also accepted that she was the only member of staff to share the Facebook post.[130]Mr Castle also submitted that for the reasons above, if the tribunal were to find that the dismissal was unfair, the claimant’s compensation should be reduced by 100% to reflect Polkey and or contributory conduct.[131]In relation to the allegation of victimisation, Mr Castle submitted that in order for an allegation to amount to a protected act, the seriousness of the allegation of a breach of the Equality Act must be such that, if the allegation were proved, it would be a contravention of the Equality Act. The respondent submits that an allegation that Mr Patel as the owner of the business repeatedly tried to kiss a member of staff whilst she was not whilst she was at work in his bar is not a protected act. He was not there in his capacity as an employer, but rather as a customer. The post does not, in his view, contain sufficient information to make good an allegation of harassment against anyone.[132]Mr Castle also submits that the Tribunal has to identify which part of the Facebook post amounts to the protected act. The protected acts are a minority of the Facebook post. On the question of causation, even if Mr Hughes considered the whole of the Facebook post, the claimant’s best case is that 25% of the post amounts to a protected act. Therefore, the ratio of potential protected acts to the rest of the post means that looking at the post as a whole, the protected acts it contains were not more than a trivial cause of the dismissal.[133]Turning now to with the whistleblowing complaint, it is Mr Castle submits, common ground that the allegations that the claimant made about breaches of the Working Time Regulations were no longer true. It was, he says, nonsensical to suggest that Mr Hughes would have dismissed the claimant for something raised months earlier and resolved. In the meeting on 25 October when the claimant was told that wearing a mask was not compulsory, she appeared to have accepted that.[134]Mr Castle also submitted that the disclosure made by the claimant was not in the public interest as her stated goal was to damage Mr Patel personally and that is incompatible with the belief in the public interest.[135]In relation to unfair dismissal, Mr Castle referred to the case of General of the Salvation Army v Dewsbury 1984 ICR 498 as authority for the proposition that continuous employment starts when the contract of employment starts and not when the employee first turns up for work. In that case he said, the contract of employment started on a Friday, but the claimant didn’t start work until the following Monday. The court held that the contract of employment was formed on the Friday and that was when employment started. Relying on this case, he says that the start date for the claimant’s employment was the date her contract was formed, namely 4 November 2018. Her trial shift was part of the recruitment process, and her employment was contingent on completing a trial shift.[136]A contract is formed when there is a clear offer and acceptance. In light of the email from the respondent to the claimant on 29 October in which Dale Robinson asked the claimant if she was still interested in the job, it was clear that at that point there was no contract in place. The Tribunal should, he submitted, look at the totality of the parties conduct and the fact that the claimant did not resign from her previous job until 31 October.[137]Mr Castle also argued that section 86(6) of the ERA makes clear that the right to a minimum period of notice does not apply if the employer has the right to terminate the contract without notice because of the behaviour of the claimant. Notice is therefore not required to be given in a gross misconduct case, and the effective date of termination of the claimant’s employment for the purposes of section 108(1) of the ERA was 30 October 2020.[138]The reason for the claimant’s dismissal was, in Mr Castle’s submission, conduct. He reminded the Tribunal that it needs to be cautious and whilst a lot of evidence had been submitted that was not reasonably available before to Ian Hughes, the focus should be on how the respondent saw matters at the time. The question is not ‘would a lesser sanction have been appropriate’, but rather whether the decision taken was within the range of reasonable responses. Mr Hughes had conceded that there could have been other ways of dealing with the issue but that did not mean that dismissal was outside the range of reasonable responses.[139]Mr Castle also argues that the respondent is a small organisation and that it was recognised long ago in Mackaler v Bolton [1979] IRLR 59 that in a small employer there is no need for an elaborate disciplinary or appeals process. Personal ties between an employer and employees generally remove the need for formal procedures.[140]Mr Castle also referred us to the case of ILEA v Gravett [1988] IRLR 497 in which Justice Ward said that at one extreme there will be cases where the employee is virtually caught in the act and the other involving pure inference. As the scale moves towards the latter end, so the amount of enquiry and investigation that may be required including the questioning of the employee is likely to increase. This is, he says, a ‘caught in the act’ case in which further investigation was not necessary.[141]The respondent, in Mr Castle’s submissions, followed the ACAS code by establishing the facts of the case, informing the claimant of the problem during the meeting on 25 October and deciding appropriate action.
Conclusions
[142]In reaching our conclusions we have considered carefully the evidence before us, the legal principles set out above, and the detailed written and oral submissions made by the parties. The following conclusions, with the exception of that on contributory conduct, are made unanimously Start date of employment[143]We find that the claimant’s employment started on 4 November 2018. The one hour of work that the claimant carried out as a trial shift on 26 October 2018 fell into the category of preparatory work. It was not carried out under a contract of employment, but rather was part of the recruitment process. At the end of the shift both parties could have decided not to enter into a contract of employment.[144]There was no clear offer and acceptance by 26 October and therefore no contract had been formed. This is evidenced by the email sent by Dale Robinson on 29 October asking the claimant if she was still interested in the job. He would not have asked that question if the claimant was already employed and a contract had already been agreed.[145]The claimant had not resigned from her other employment by 26 October and did not do so until 31 October. This is further evidence that, when she carried out the trial shift on 26 October, she did not consider herself to be an employee of the respondent. When she presented her claim to the Employment Tribunal, she wrote on her claim form that her start date was 4 November, which indicates what her view of her start date was, and it was only sometime later that she took a different view.[146]The contract of employment was, we find, formed on 4 November 2018 when Mr Robinson sent a clear offer to the claimant of work starting later that week, and the claimant accepted that offer. Date of termination of the claimant’s employment[147]In order to decide this issue, we have had to consider whether the respondent was entitled to dismiss the claimant without notice by reason of her conduct. Did the claimant’s behaviour amount to gross misconduct and a repudiatory breach of her contract of employment?[148]Factors such as the nature of the employment and the employee’s past conduct will be relevant in deciding whether behaviour amounts to a repudiatory breach of contract. Moreover, the conduct must be a deliberate and wilful contradiction of the contractual terms or amount to gross negligence — Laws v London Chronicle (Indicator Newspapers) Ltd 1959 1 WLR 698, CA, and Sandwell and West Birmingham Hospitals NHS Trust v Westwood EAT 0032/09.[149]On balance, we find that there was no evidence of the claimant acting willfully to harm the respondent. The claimant did not write the post, she merely shared and liked it. She took it down within an hour or two of having originally posted it and acknowledged on 25 October that what she had done was wrong. There was no attempt on her part to cover up her behaviour or to justify it. She accepted that she made a mistake.[150]The respondent did not have a disciplinary policy or a social media policy defining this type of behaviour as gross misconduct or explaining to employees the consequences of engaging in such behaviour. The ACAS Code of Practice states that “Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination”.[151]The ACAS Code also contains, in Appendix 2, a sample disciplinary procedure which lists some suggested examples of gross misconduct. Whilst not exhaustive, this list does not cover behaviour of the type that the claimant was dismissed for.[152]On balance therefore, whilst the claimant should not have shared and liked the post publicly, we find that her conduct did not amount to gross misconduct. It was not conduct entitling the respondent to treat the contract as terminable without notice under section 86(6) of the ERA.[153]As a result, the claimant’s period of employment is extended under section 97(2) of the ERA and her effective date of termination is 6 November 2020. She therefore has sufficient service to bring an ordinary unfair dismissal claim.[154]We conclude that the reason the claimant was dismissed was conduct. Specifically, that she liked and shared a post on Facebook which publicly criticised the respondent and alleged that it had breached health and safety, when she knew that the issue of breaks for staff had already been resolved some time previously, which could have seriously damaged the respondent’s reputation. We accept Mr Hughes’ evidence that the reason for dismissal was not linked to the allegations made about Mr Patel’s behaviour.[155]Turning now to the Burchell tests, we find that Mr Hughes, who was a compelling and genuine witness, genuinely believed at the time he made the decision to dismiss the claimant that she was guilty of gross misconduct. This was the advice that he had received also from the business consultant, and he had no reason not to accept that advice.[156]We also find, on balance, that Mr Hughes had reasonable grounds for holding that belief. He had seen the Facebook post and the claimant had admitted liking and sharing it. He had received professional advice on the issue also.[157]We do not find however that the investigation carried out by the respondent was a reasonable one. There was no investigation other than the meeting with the claimant on 25 October. There were a number of steps that the respondent could have taken which would have brought the investigation within the range of reasonable responses.[158]The respondent could have done more to find out how many people had viewed the post and whether it had done any damage to the business. It could have asked staff how many of them had seen the post. It could have investigated whether what the claimant said about PPE and Covid safety was true because that could have made a difference to the outcome.[159]We have reminded ourselves that it is not our role to step into the shoes of the employer and substitute our view for that taken by the employer, however in this case we find that the failings in the investigation were such as to render the investigation outside the range of reasonable responses. We therefore find that the third of the Burchell tests was not satisfied.[160]We also find that the dismissal was procedurally unfair. We accept that a small employer is not required to have as detailed or complex a disciplinary procedure, but the ACAS Code of Practice suggests, at Appendix 1, (“Disciplinary rules for small organisations”) that as a minimum a small employer should have rules which:a. are simple, clear and in writing;b. are displayed prominently in the workplace, known and understood by all employees; andc. indicate examples of the type of conduct which will normally lead to dismissal without notice.[161]There were a number of failings in the procedure followed by the respondent in this case:a. There was a total lack of a disciplinary policy and procedure;b. There was a lack of investigation;c. There was no written invite to the disciplinary hearing setting out the allegations against the claimant and warning her she may be dismissed;d. The decision to dismiss was made before the ‘disciplinary hearing’ on 30 October; ande. There was no appeal. The claimant cannot in our view be criticised for not raising an appeal in circumstances where she was not told that she had the right to appeal and wasn’t aware that such a right existed.[162]We are also concerned that the same person (Mr Hughes) did the investigation and made the decision to dismiss, although this alone would not have rendered the decision to dismiss unfair. The evidence before us was that there were four members of the management team, so it would have been possible for different people to do the investigation and the disciplinary hearing.[163]For these reasons we find that the dismissal is procedurally unfair.[164]We also find that dismissal is not within the range of reasonable responses. The claimant’s behaviour was not gross misconduct. The respondent had no social media or disciplinary policy warning employees that the behaviour engaged in by the claimant is even a disciplinary issue. There was no evidence of any previous misconduct by the claimant, she took the Facebook post down very quickly and apologised for it. She clearly had insight into what she’d done and that it had the potential to damage Trebles. She did not write the post and was not acting vindictively or deliberately to damage the respondent’s interests. She made a mistake, for which she paid.[165]No reasonable employer would, in our view, have dismissed in these circumstances. We therefore find that the dismissal of the claimant was both substantially and procedurally unfair. Automatic unfair dismissal (s103A ERA)[166]In deciding this issue, the first question to be addressed is whether the claimant made a protected disclosure within the meaning of section 43A of the ERA. The disclosure relied upon by the claimant is a combination of the liking and sharing of the Facebook post on 24 October and the information provided by the claimant during the meeting on 25 October.[167]We find that the claimant disclosed information both by sharing the Facebook post and during her meeting with the respondent on 25 October. The post, and her comments during the meeting, went beyond mere allegations, but also contained factual information, such as that employees were not being allowed breaks, that Mr Patel was sexually harassing staff, and that he was not wearing a mask.[168]Applying Kilraine v London Borough of Wandsworth [2018] ICR 1850, ‘information’ and ‘allegation’ are not mutually exclusive. There must, however, be sufficient factual content tending to show one of the matters in subsection 43B(1) of the ERA in order for there to be a qualifying disclosure. The information disclosed by the claimant does not have to be true, but rather, the claimant must reasonably believe that it tends to show one of the matters falling withing section 43(B)(1).[169]That information did, in our view, tend to show that the respondent had failed to comply with a legal obligation to protect staff from sexual harassment and to provide breaks in accordance with the Working Time Regulations, as well as that the health and safety of individuals may be affected by behaviour of Mr Patel. It is not necessary for the allegations to be true in order for them to be qualifying or protected disclosures. We accept that the claimant reasonably believed at the time that she made the disclosures, that they tended to show that sexual harassment was taking place at the bar, that there had been a failure to provide breaks and that Covid safety measures were not being followed.[170]The disclosure therefore falls within sections 43B(1)(b) and (d) of the ERA and was a qualifying disclosure.[171]We have then gone on to consider whether the claimant reasonably believed, at the time she made the disclosure, that the disclosure was made in the public interest. In deciding this question we have considered whether the claimant reasonably believed that it was in the public interest and whether it was objectively reasonable for her to hold that belief.[172]We accept that the motivation of the claimant in making the disclosure about Mr Patel and about Covid safety rules, was to protect customers and potential customers of Trebles. Although no specific numbers were provided, we take judicial notice of the fact that as a public bar, Trebles would have potentially large numbers of customers and potential customers. We also accept that concerns about sexual harassment and Covid safety are serious. The wrongdoing to which the claimant referred appeared to be deliberate, and she reasonably believed that to be the case.[173]There was no evidence before us to suggest that the claimant personally had anything to gain from making the disclosures that she did, and we accept that she genuinely believed when making them that she was doing so in the public interest.[174]We also find that the disclosures made during the meeting on 25 October, which included a detailed discussion about the Facebook post, were made to her employer in accordance with section 43C of the ERA and are therefore protected disclosures. Ms Jiggens did not seek to argue that the Facebook post itself was a disclosure falling within section 43G of the ERA, so we have not had to decide that question. It does however seem to us that a disclosure made on Facebook would not have fallen within section 43G as the claimant had no reason to believe that she would have been subjected to a detriment by her employer if she made a disclosure to her employer (a requirement set out in section 43G(2)(a)). When she had previously raised concerns about the lack of breaks for staff the respondent responded positively and made changes to working practices.[175]We therefore find that the claimant made a protected disclosure during the meeting on 25 October 2020 which included a discussion about the Facebook post she shared and liked the previous day.[176]The claimant was not however dismissed because of the protected disclosure she made on 25th October 2020. She was dismissed because she publicly criticised the respondent on 24 October in a post on Facebook which made serious criticisms about the respondent, referred to the bar as being ‘messed up’ and alleged that it had breached health and safety. At the time she shared and liked the post she knew that the issue of breaks for staff had been resolved some time previously. Her post could have seriously damaged the respondent’s reputation.[177]The claimant was therefore not dismissed because she made a protected disclosure, and the automatic unfair dismissal claim fails and is dismissed. Victimisation[178]The following allegations contained within the Facebook post about the behaviour of Mr Patel are in our view protected acts:a. Asking a member of staff to have a threesome;b. Trying to kiss a member of staff repeatedly in the workplace whilst she was working;c. Doing the same to customers;d. ‘creeping’ on a 17 year old who managed to sneak in; ande. Making ‘creepy’ comments to staff.[179]The behaviour described would, if true, amount to a breach of the EQA. As such, these are allegations falling within section 27(d) of the EQA.[180]The claimant also made an allegation during the meeting on 25 October 2020 about Mr Patel trying to kiss a staff member whilst she was working on shift. This is an allegation of harassment and is also a protected act.[181]An allegation does not have to be made to the employer to fall within section 27 of the EQA, so sharing and liking a Facebook post containing allegations of sexual harassment is, in our view, making an allegation within section 27(d) of the EQA.[182]We were not impressed by Mr Castle’s argument that the behaviour described did not fall within the legal definition of harassment. The claimant does not in our view have to prove that the definition of harassment is made out by her allegation, she does not have to show that the allegations were true in order to fall within section 27 of the EQA.[183]There was no suggestion by the respondent that the claimant was acting in bad faith such that her allegations fell within section 27(3). We accept that the claimant was motivated by wanting to protect others from the behaviour of Mr Patel. We therefore find that the claimant sharing and liking the Facebook page and the comments in the meeting on 25 October about Mr Patel trying to kiss a member of staff are protected acts.[184]We also find that the claimant was subjected to a detriment, because dismissal is clearly a detriment.[185]On balance however we find that the claimant was not dismissed for making allegations of sexual harassment. All members of the panel were concerned about the behaviour of Mr Patel, the lack of policies and procedures for dealing with harassment, and the lack of action taken in relation to the allegations made by the claimant.[186]We accept, however, the evidence of Mr Hughes that the claimant was dismissed for sharing comments about Trebles and alleging breaches of health and safety which could bring the reputation of Trebles into disrepute, and that the claimant would not have been disciplined for raising concerns about Mr Patel’s behaviour.[187]On that basis, the claim for victimisation fails and is dismissed.[188]We should add that we were impressed by the claimant and her bravery in speaking up. We accept that she was acting out of what she thought was the public interest in protecting customers and potential colleagues.[189]We were also concerned that no investigation whatsoever was carried out into what were serious allegations of repeated sexual misconduct towards staff and customers. The respondent’s suggestion that what Mr Patel did as a customer was nothing to do with the business is surprising and clearly not true. Another customer would not have got away with the behaviour that he did. Staff would be more inclined to complain about another customer than the owner, in respect of whom there is a clear power imbalance. The evidence suggested that most of the employees in the bar were young employees on low wages in a pandemic during which jobs were not readily available within the hospitality sector.[190]If a customer were behaving inappropriately, he or she would have been asked to leave and possibly barred. Mr Patel was not because of his position as owner of the bar. It is in our view articifial to try and draw a distinction between his behaviour as a customer and as the owner. He is always the owner, even when drinking in the bar, and staff know that. The claimant is to be given credit for speaking up in circumstances which ultimately led to her losing her job. Polkey[191]In relation to the finding of unfair dismissal, we find that no reduction should be made under Polkey because dismissal was outwith the range of reasonable responses. Given the number of failings in the procedure followed by the respondent in dismissing the claimant, as set out above, it would be pure speculation for us to make a finding that the claimant may have been dismissed in any event had a fair procedure been followed. In addition in light of our finding that no reasonable employer would have dismissed in these circumstances, uit would not be appropriate to make a Polkey deduction. Contributory conduct[192]The Tribunal’s judgment on the question of whether the claimant contributed to her dismissal through her conduct is reached by majority. The majority of the Tribunal found that the claimant did not know that her behaviour on the evening of 24 October was wrong. The respondent had no disciplinary or social media policy in place to tell her what she was doing was wrong. It had not warned the claimant that this type of behaviour would be considered gross misconduct. Given the claimant’s age and relative inexperience in the working environment, the fact that she did not write the post, and that she took it down quickly when made aware that it could damage the business, she was not, in the view of the majority of the Tribunal, guilty of culpable or blameworthy behaviour, and there should therefore be no reduction for contributory conduct.[193]The Employment Judge, in the minority, found that the claimant did contribute to her dismissal and that there should be a 20% reduction in compensation to reflect this. The claimant’s behaviour in sharing and liking the Facebook page was, in the view of the Employment Judge, culpable and blameworthy. There is no ‘right’ to criticise an employer in a public forum, contrary to the submissions of Ms Jiggens. Colleagues of the claimant realised quickly that the post was inappropriate and asked her partner to take it down. Overheard at Lincoln also took it down. It would, therefore, in the opinion of the Employment Judge, be just and equitable to reduce the claimant’s compensation by 20%.[1]The respondent is ordered to pay to the claimant the sum of £3,031.04 in respect of her claim for unfair dismissal, made up as follows:a. Basic Award: £182b. Compensatory Award: i. Loss of earnings (including uplift): £2,549.04 ii. Loss of statutory rights (including uplift): £300 iii. Total: £2,849.04 Total award for unfair dismissal: £3,031.04[2]The Employment Protection (Recoupment of Jobseekers’ Allowance and Income Support) Regulations 1996 apply to this award as follows:a. Grand Total: £2,849.04b. Prescribed Element: £2,549.04c. Prescribed Period: 6 November 2020 to 16 May 2021d. Excess of Grand Total over Prescribed Element: £300[1]In a judgment dated 5 June 2022 the Tribunal found that:a. the claimant had been unfairly dismissed;b. there should be no reduction from any compensation awarded to the claimant under the Polkey principles; andc. the claimant did not contribute to her dismissal.[2]The claimant’s claims of victimisation and automatic unfair dismissal under section 103A were dismissed.[3]The case was listed for a remedy hearing today to decide what sum should be awarded to the claimant by way of compensation for the unfair dismissal. The Proceedings[4]The remedy hearing took place via Cloud Video Platform (“CVP”). In advance of the hearing the claimant submitted a second remedy witness statement (the first having been provided at the time of the merits hearing in May 2022), an updated Schedule of Loss, a copy of the bundle of documents used at the final hearing, and an additional document comprising extracts from the respondent’s Instagram account in June 2021.[5]The respondent submitted a brief witness statement for Ian Hughes, a skeleton argument and a number of authorities.[6]Neither the claimant nor Mr Hughes attended the hearing to give evidence. The Tribunal has however read their statements.[7]At 9.16 on the morning of the hearing Ms Jiggens wrote to the Tribunal indicating that the claimant was unable to attend the hearing until 12.30 due to mandatory training in her new role. She apologised for the late notice and explained that it was due to the system that she (Ms Jiggens) uses for confirming availability for CVP hearings.[8]The respondent objected to delaying the start of the hearing. The Tribunal heard submissions from both representatives on the issue and then retired to consider whether to delay the start of the hearing.[9]It was the unanimous decision of the Tribunal that the hearing should proceed in the absence of the claimant. It would not be proportionate or in the interests of justice to delay the start. Notice of the remedy hearing was sent to the parties in June and that notice stated that the hearing would start at 10am. Ms Jiggens accepted that she had spoken to the claimant over the weekend to prepare her second remedy witness statement. Ms Jiggens wrote to the Tribunal the day before the hearing to submit documents but made no mention of the claimant’s unavailability. She was unable to tell us when the claimant had become aware of today’s training.[10]The Tribunal had to consider the interests of both parties, not just the claimant. The respondent was present and ready to go. It appeared to the Tribunal that not much would turn on the claimant’s evidence – her witness statement was only one page and most of the issues would turn on submissions.[11]Ms Jiggens was given time to contact the claimant to take instructions as to whether, in light of the Tribunal’s decision to proceed with the hearing, she wanted to reconsider whether to attend before 12.30. Ms Jiggens told us that she had not been able to speak to the claimant and was content for the hearing to proceed.[12]At the end of the hearing the Employment Judge gave judgment orally. She told the parties that written reasons would be provided, and that if there was any discrepancy between the written reasons and those provided orally, it was the written reasons that would take precedence. Reconsideration of oral judgment[13]When giving judgment orally, the Employment Judge indicated that an award of £182 would be made by way of notice pay, in light of the agreement between the parties that that sum was due to the claimant.[14]Whilst preparing this written judgment the Employment Judge noticed that there is no free standing claim for breach of contract or notice pay before the Tribunal. As a result, the Tribunal cannot award a separate sum for notice pay. Rather, notice pay must form part of the unfair dismissal compensation.[15]The judgment given orally has therefore been reconsidered by the Tribunal on its own initiative, in accordance with Rule 73 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. It would, in the Tribunal’s view, be in the interests of justice to reconsider the judgment to include compensation for notice pay as part of the compensatory award for unfair dismissal as there is no claim for notice pay before the Tribunal.
The Issues
[16]The parties had agreed the following in advance of the hearing:a. The claimant’s gross and net weekly pay was £91;b. The claimant’s basic award, given her age and gross weekly pay, was £182; andc. The claimant was entitled to two weeks’ notice pay totaling £182.[17]The issue that therefore fell to be decided by the Tribunal was what sum should be awarded to the claimant by way of unfair dismissal compensatory award, and in particular:a. What period of loss should the claimant be compensated for and, in particular, did the claimant fail to mitigate her losses? The claimant argued that she should be compensated for loss of earnings from the date of termination of her employment until 17 May 2021 when she started another job and fully mitigated her losses. The respondent argued that the claimant had failed to mitigate her loss and could have obtained alternative employment within 5 weeks.b. Should loss of earnings be calculated using the claimant’s full pay or furlough pay of 80% of normal earnings?c. What uplift, if any, should be applied under section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 (“TULRCA”) for any failure by the respondent to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures (“the Code”)? Findings of Fact[18]The following findings of fact are made unanimously by the Tribunal, based upon the evidence before us today and at the merits hearing in May 2022.[19]The effective date of termination of the claimant’s employment was 6 November 2021. At the time of her dismissal, she earned £91 a week from her employment with the respondent.[20]At the date her employment terminated the claimant had two years’ continuous employment and was therefore entitled to two weeks’ statutory notice. The respondent did not pay the claimant any notice pay.[21]The claimant was, at the time of her dismissal, a student. Bar work of the type that she had carried out with the respondent suited her because she could fit it in around her studies.[22]On 5 November 2020 the second national lockdown came into force. Non-essential businesses, including the respondent’s bar, were closed. The respondent furloughed its staff on 80% of their normal pay. A third national lockdown began on 6 January 2021.[23]If the claimant had been furloughed by the respondent on 80% of normal pay, she would have received weekly pay of £72.80, equivalent to a daily rate of pay of £10.40.[24]Non-essential retail and hospitality venues were able to reopen on 12 April 2021.[25]The claimant and her partner received Universal Credit. The amount of Universal Credit varied, and there was no evidence before us today as to how the Universal Credit had been calculated.[26]Due to the Covid restrictions and the national lockdowns, it was a very difficult time to find bar work. On 13th April 2021 the claimant was interviewed for a job with a company called Carousel. After a period of training, she began working at Carousel on 17th May 2021. From 17th May onwards she was earning the same or more than she had earned whilst employed by the respondent. The Law Section 123 of the ERA states that: “(1) Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer…. (4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales…”[27]In Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498 the EAT held that there are three questions that a Tribunal should consider when dealing with allegations of failure to mitigate, and that the burden of proof is on the employer in respect of each:a. What steps was it reasonable for the claimant to take to mitigate her loss?b. Did the claimant take reasonable steps to mitigate her loss? Andc. If the claimant had taken those steps, to what extent would she have mitigated her losses?[28]The starting point, when calculating the compensatory award, is that the Tribunal should assume that the claimant has taken all reasonable steps to mitigate. Mr Justice Langstaff, who was at the time President of the EAT, summarised a number of principles for Tribunals to apply when considering questions of mitigation, in the case of Cooper Contracting Ltd v Lindsey [2016] ICR D3. Those principles include the following:a. The burden of proving a failure to mitigate lies with the employer;b. If the employer does not adduce evidence that the claimant has failed to mitigate, the Tribunal is not obliged to look for such evidence or draw inferences;c. The employer must prove that the claimant has acted unreasonably. The claimant does not have to establish that she acted reasonably;d. Tribunals should not apply too demanding a standard on the claimant, and the claimant should not be ‘put on trial’ as if the losses were her fault;e. It is for the ‘wrongdoer’ to show that the claimant has acted unreasonably by failing to mitigate her losses.[29]Section 207A of TULRCA provides that: “…(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that –(a) The claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,(b) The employer has failed to comply with that Code in relation to that matter, and(c) That failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%...”[30]A tribunal may only make an adjustment under section 207A if it makes an express finding that a failure to follow the Code was unreasonable (Kuehne and Nagel Ltd v Cosgrove EAT 0165/13). Not every breach of the Code or finding of unfair dismissal will warrant an adjustment. Similarly, a failure by an employer to follow its own disciplinary procedures will not necessarily mean that there has been a breach of the Code.[31]In Lawless v Print Plus EAT 0333/09 Mr Justice Underhill, who was at the time President of the Employment Appeal Tribunal, suggested (albeit in the context of the former statutory disciplinary and grievance procedures) that relevant circumstances to be taken into account by a Tribunal when deciding whether to exercise its discretion and make an uplift, should always include whether:a. The procedures were applied to some extent or were entirely ignored;b. The failure to comply was inadvertent or deliberate; andc. There were circumstances that mitigate the blameworthiness of the failure to comply.[32]The size and resources of the employer can also be a relevant factor.[33]More recently in the case of Slade and another v Biggs and others [2022] IRLR 216 the EAT laid down a four stage test for Tribunals to follow when considering whether to make an uplift:a. Is the case such as to make it just and equitable to award an uplift?b. If so, what would be a just and equitable percentage uplift in all the circumstances?c. Does the uplift overlap with other general awards such as injury to feelings and, if so, what adjustment should be made to avoid double counting?d. Applying a final ‘sense check’, is the sum of money represented by the percentage uplift disproportionate in absolute terms and, if so, what further adjustment should be made?[34]The Employment Protection (Recoupment of Benefits) Regulations 1996 SI 1996/2349 apply, inter alia, to compensatory awards covering immediate loss in unfair dismissal claims. They provide, in summary, that a Tribunal must first calculate the award without taking account of certain benefits including universal credit. Once the Tribunal has done this, it must then calculate:a. The total award to the claimant;b. The ‘prescribed element’ of the award, which is the claimant’s loss up to the date upon which this decision is sent to the parties;c. The period covered by the prescribed element; andd. The amount, if any, by which the total award exceeds the prescribed element. Conclusions
Remedy
[35]We reach the following conclusions on a unanimous basis, after considering the evidence, the legal principles set out above and the written and oral submissions of the parties, for which we are grateful.[36]The claimant was out of work from the 6 November 2020 until 16 May 2021, a period of just over six months. She fully mitigated her loss on 17 May 2021 and claims no losses from that time onwards. During the period that she was out of work the county was in two national lockdowns and most bars were closed.[37]The respondent has not adduced any evidence to suggest that there was work available that the claimant could have applied for and relies entirely on submissions in support of its argument that the claimant failed to mitigate her losses.[38]We have no hesitation in finding that the claimant did not fail to mitigate her losses. We accept the submissions of Ms Jiggens on this issue. The burden of proving that the claimant has failed to mitigate her losses lies with the respondent. The respondent has not discharged that burden.[39]It was, in our view, reasonable for the claimant, as a student, to look for work that would fit around her studying. She had done bar work for at least two years and it was understandable that she wanted to look for more work in bars. We accept her evidence that there was little work available – indeed the respondent’s own evidence was that Trebles closed and staff were furloughed.
Findings of Fact
[40]In the circumstances of the pandemic, the claimant’s other commitments as a student, and her previous experience in bar work, it cannot be said that the claimant failed to mitigate her losses by looking for bar work rather than other work. We therefore find that the claimant did take reasonable steps after her dismissal to mitigate her losses. As a result the claimant should be compensated for the period beginning on 6 November 2020 and ending on 16 May 2021, the day before she started her new job.
Background
[41]We have then gone on to consider what rate of pay should be applied when calculating the claimant’s losses, ie her normal rate of pay of £91 a week, or the 80% furlough rate of £72.80 a week.[42]In light of the national lockdowns, starting on 5 November 2020 and 6 January 2021, the date upon which bars were allowed to reopen, and of Ian Hughes’ evidence that the respondent furloughed its staff, we find that the following rates of pay should be used when calculating the claimant’s losses:a.£91 a week for the two-week notice period (6 – 19 November 2020 inclusive), as this was agreed by the parties;b.£72.80 a week for the period from 20 November 2020 (the end of the claimant’s notice period) to 11 April 2021 (the day before bars were allowed to re-open); andc.£91 a week for the period from 12 April 2021 to 16 May 2021.[43]We have also considered carefully whether to apply an uplift in compensation under section 207A of TULRCA and, if so, what uplift to apply. In doing so, we have asked ourselves the questions laid down by the EAT in the recent Slade decision.[44]The first of those questions is whether it would be just and equitable to award an uplift. We find that it would be. The procedural failings in this case were significant. The respondent did not carry out any investigation other than the meeting with the claimant on 25 October 2020, despite telling her that it would do. The claimant was not told in advance of the meeting on 30 October at which she was dismissed what the grounds for disciplinary action were. The decision to dismiss was taken before the meeting. The claimant was not offered the right of appeal.[45]The respondent failed to comply with the Code. It did not carry out a reasonable investigation. The same person carried out the investigation and the ‘disciplinary’ hearing. The claimant was not notified in writing of the disciplinary case to answer. The decision to dismiss was taken before the ‘disciplinary hearing’ on 30 October. The claimant was not offered the right of appeal.[46]The breaches of the Code were multiple and, whilst we take account of the fact that the respondent is a small employer with no dedicated HR function, it did have access to advice from a consultant and took advice from that consultant in relation to the claimant’s dismissal. It was in our view unreasonable of the respondent not to comply with the Code when it had access to advice. The fact that it received poor advice from the consultant is a matter between the respondent and its advisor, and not one that the claimant should be penalised for.[47]We therefore find that the respondent unreasonably failed to comply with the Code and that it would be just and equitable to apply an uplift under section 207A.[48]We have then considered the second of the Slade tests, namely what would be a just and equitable uplift in all the circumstances. We’ve asked ourselves the questions contained within Lawless:a. Was the Code applied to some extent or entirely ignored? We find that it was not entirely ignored, although the failings were substantial. The respondent did interview the claimant about the events for which she was dismissed, took advice on the situation, invited the claimant to a second meeting and took notes of both meetings. It cannot be said that this was a case in which the respondent made no attempt at a fair procedure.b. Was the failure to comply inadvertent or deliberate? We found Mr Hughes in particular to be a credible witness. We do not believe that he deliberately set out to dismiss the claimant without following a fair procedure. Rather he was ignorant of the correct procedure to follow and relied upon bad advice from the consultant. The procedural failings were therefore largely inadvertent.c. Were there circumstances that mitigate the blameworthiness of the failure to comply? We find that there were not. We recognise that the respondent is a small employer, but it had access to advice and indeed took advice.[49]In light of the above, and in particular of the number of breaches of the Code, we consider that an uplift towards the upper end of the scale is appropriate. We find that it would be just and equitable to award an uplift of 20%.[50]Turning now to the final two Slade tests, it cannot be said that the uplift overlaps with other general awards as no such awards are made. The amount of the uplift, as calculated below, is £474.84. It is a small amount in absolute terms and is not disproportionate.[51]We therefore calculate the compensatory award to the claimant as follows:a. Loss of earnings from 6 – 19 November 2020 (the notice period): 2 weeks @ 91 a week: £182b. Loss of earnings from 20 November 2020 to 11 April 2021, a total of 20 weeks and 3 days at a weekly rate of £72.80 and a daily rate of £10.40: 20 weeks @ 72.80 = £1,456 3 days @ 10.40 = £31.20 Total: £1,487.20c. Loss of earnings from 12 April 2021 to 16 May 2021, a total of 5 weeks: 5 weeks @ 91 a week = £455d. Total loss of earnings (adding the figures in sub paragraphs a, b and c above): £2,124.20e. In addition to loss of earnings, the claimant is also entitled to a payment to compensate her for the loss of her statutory rights. The claimant was a relatively low earner who only just acquired two years’ service when she was dismissed. We therefore find that an award at the lower end of the scale is appropriate and award the claimant £250 for loss of statutory rights.f. Adding the compensation for loss of statutory rights to the loss of earnings gives £2,374.20.g. We have then applied the 20% uplift to this figure. This increases the compensatory award by £474.84, resulting in a total compensatory award of £2,849.04.[52]The respondent is therefore ordered to pay the following sums to the claimant:a. A Basic Award of £182b. A Compensatory Award of £2,849.09 Resulting in a total award to the claimant of £3,031.04.[53]The compensatory award is subject to the application of the Employment Protection (Recoupment of Benefits) Regulations.