Mr M Hannant v Hambling Utility Services Ltd and G Hambling: 3201348/2020

EMPLOYMENT TRIBUNALS

Case No 3201348/2020

Between

Mr Michael HannantClaimant

(1) Hambling Utility Services Limited (2) Gary HamblingRespondent

Before

Employment Judge Allen QC

Members

Ms S Harwood

Mr J Quinlan

Mr Frame for claimant

Mr Monroe for respondent

Date 23 December 2020

JUDGMENT

[1]The claim of disability discrimination fails and is dismissed.

[2]The claim against the second Respondent, Gary Hambling, fails and is dismissed.

[3]The redundancy pay claim is conceded by the Respondent and succeeds. The Respondent must pay to the Claimant the sum of £1200 being 2 x 1.5 times the Claimant’s gross weekly pay of £400. That sum is not subject to taxation. 1 of 13

[4]The notice pay claim succeeds. The Respondent must pay to the Claimant the sum of £800 gross being 2 times the Claimant’s weekly pay of £400. The notice pay claim may be subject to taxation either at source or in the hands of the Claimant.

[5]It having been agreed that any claim for underpayment of accrued holiday entitlement upon termination of employment has been satisfied, that claim is dismissed.

[6]The Claimant’s claim for full payment of 7 days wages up to the date of dismissal on 25 February when he was no longer off sick but available for work succeeds. The total due for that period is 7 x £80 per day equals £560 to which the payment of SSP for 7 days at £131.95 must be deducted. The total gross owed to the Claimant is £428.05. This gross sum may be subject to taxation either at source or in the hands of the Claimant.

[7]The claim for unfair dismissal succeeds. The reason for dismissal was redundancy but the dismissal was procedurally unfair. The compensatory award comprises the following elements:a. 400 loss of statutory rights

b. 2040 net loss of earnings for a period of 6 months

c. This totals 2440

[8]The total net amount payable by the Respondent to the Claimant for unfair dismissal is therefore £610.

[9]Given that this was found to be a redundancy dismissal, the ACAS Code of Practice does not apply and therefore there is no uplift. 10. 2 week’s pay in the total sum of £800 is awarded under section 38 Employment Act 2002 because of the inadequate provisions of the statement of terms and conditions given to the Claimant.

REASONS

Conclusions

[1]By ET1 claim form presented on 18 May 2020, the Claimant brought claims against the Respondent for unfair dismissal, disability discrimination, notice pay, arrears of pay and holiday pay. 2 of 13

[2]The Respondent initially failed to respond to the claim within the time required by the rules but was permitted to respond at a preliminary hearing on 7 December 2020.

[3]We heard evidence from the Claimant and from the second Respondent.

[4]We were referred to documents in a bundle running to 80 pages and we received during the course of the day: an email from Robin Clare of Weir Anglian Water to the Respondents dated 14 December 2020; the Claimant’s Job Seekers book; and an email from the Claimant to the tribunal dated 26 October 2020 concerning his mother’s disability. We heard oral submissions from both parties.

[6]The issues were addressed at a preliminary hearing on 14 September and revisited at the start of the hearing. The parties had agreed a list of issues – and following clarification at the start of the hearing and after a conversation over the lunch adjournment between the representatives, the issues that remained for determination by the tribunal were as follows: Unfair Dismissal contrary to sections 94 and 98 Employment Rights Act 1996 Was there a genuine redundancy situation?

[2]What was the reason, or if more than one reason, the principal reason for the Claimant's dismissal?a. The Claimant avers that he was unfairly dismissed because of his requirement to care for his disabled parents and at the date of dismissal his disabled mother.

b. The first Respondent contends that dismissal was by reason of redundancy.

[3]Did the first Respondents undertake a reasonable process, or any process at all, before making a final decision about the Claimants dismissal – this global question included consideration of whether the Claimant was consulted and whether sufficient or any efforts were made to look for suitable alternative employment, if available.

[4]Was the first Respondent’s decision to dismiss within the range of reasonable responses open to a reasonable employer?

[5]If the Claimant was unfairly dismissed, has the Respondent proved that if it had adopted a fair procedure, the Claimant would have been fairly dismissed in any event? What is the percentage chance of such a fair dismissal; additionally or alternatively, to what date should the Claimant be compensated? Direct discrimination contrary to section 13 Equality Act 2010

[6]The Claimant relies on his father (cancer) and his mother (physical impairment) as having disabilities and the Claimant asserts that he was dismissed because of disability in that he was dismissed because they were disabled.

[7]The Respondents admitted that the Claimant’s father was disabled and that it had knowledge of the father’s cancer from 4 December 2019 onwards. However the Respondent did not admit that the Claimant’s mother was disabled; and the Respondent denied actual or constructive knowledge of her disability, thereby placing both matters in issue.

[8]Did the Respondents treat the Claimant less favourably: 3 of 13a. By not paying him his contractual salary when he was available to work in the last 7 days of his employment;

b. by dismissing him? than it would have treated a hypothetical comparator in the same relevant circumstances?

[9]Was that less favourable treatment because of disability?

[10]If the Claimant is successful what award should be made for injury to feelings and is there any financial loss which is not already dealt with under the heading of unfair dismissal. Unlawful Deduction from Wages

[11]Did the Respondent fail to pay the Claimant's contractual pay of £80 per day but instead only paid SSP during the last 7 days of his employment when he was available and fit to work? Breach of Contract

[12]Did the Respondent fail to give the Claimant’s his statutory notice of 2 weeks and if so what is the appropriate level of damages payable for that period? Uplift for failure to follow the Acas code of practice

[13]If redundancy is not the reason for the Claimants dismissal, did the Respondent breach some or all of paragraphs 2, 3, 4, 5, 7, 9, 10, 11 and 13 of the Acas Code of Practice. If so should the Claimant’s compensatory award be increased and if so, by what percentage? 7. In the Claimant’s witness statement (although not identified as an issue at any point in the hearing) is an assertion that his statement of terms and conditions was inadequate and that he should receive an additional 4 weeks’ pay as a result. 8. It was specifically agreed at the outset of the hearing that there was no claim for constructive dismissal; that there was no argument by the Respondent that the Claimant had contributed to his dismissal or that compensation should be reduced because of any conduct on his part; that there could be no argument of associative disability discrimination under section 15 Equality Act 2010; and that there was no argument by the Respondent that any compensation should be reduced because of any failure by the Claimant to follow any aspect of the Acas Code of Practice. 9. It was specifically agreed after the lunch adjournment that gross weekly pay was £400 and net weekly pay was £340; that the payments made to the Claimant at or shortly after his dismissal had covered his wages up to the date of dismissal at SSP level; that one of the payments received at or shortly after termination covered the Claimant’s outstanding accrued holiday entitlement; and that neither notice pay nor redundancy pay had been paid to the Claimant. It was clarified that any claim for arrears of pay was expressly limited to the last 7 days of the Claimant’s employment and if successful would have to take into account that the Claimant had received pay at SSP level for that period. Findings of Fact 10. The Claimant was employed by the first Respondent as a customer services technician from 30 January 2018 to 25 February 2020. 11. The first Respondent describes itself as a ‘labour only sub contractor’. The second Respondent is the owner and managing director of the first Respondent limited 4 of 13 company. The Company is small and has only 3 workers (some of whom are described as ‘self employed’ – although it was agreed that the Claimant was an employee). The second Respondent was asked in evidence to give figures for the first Respondent’s turnover and profit but he did not do so and therefore the tribunal was unable to take that into consideration when looking at the size and administrative resources of the first Respondent. 12. Throughout his employment, the Claimant with the first Respondent was engaged on a contract for Anglian Water operated through Kier Group. The Claimant’s work primarily involved the replacement of water meters. The Claimant mainly worked in the Norwich area under a specific contract for that area. The first Respondent also provided labour in the Suffolk area under a different contract. The Claimant had worked on that Suffolk contract very occasionally. The first Respondent was only one of a number of small companies providing labour in this way. The Claimant worked in Anglian Water branded clothing using a van provided by the first Respondent but branded as being an Anglian Water van. 13. The tribunal accepted the evidence of the second Respondent that, although the first Respondent employed the Claimant, it was ‘Anglian Water’ (or rather Kier) who called the shots on a day to day basis as well as being able to tell the first Respondent that they no longer had any need or the same need for employees in general or a specific employee in particular.

Findings of Fact

[14]The Claimant’s supervisor was Mick Wood – who, although self employed, appears to have operated under the first Respondent’s banner. The day to day work in the Suffolk region was carried out by Mark Davy – who was also said by the first Respondent to be self employed but whose regular work was very similar to that of the Claimant – changing old for new water meters. Mr Davy was regarded by the second Respondent as being a more flexible resource but the Respondents were also satisfied with the Claimant’s work.

[15]Robin Clare was the Kier employee with whom the Claimant was in regular contact.

[16]The Claimant’s terms and conditions of employment stated that his “basic daily rate is £80 per day”. The terms and conditions document was silent as to the notice to be given by the employer (although it does say that the employee must give 4 weeks’ notice) and therefore statutory minimum notice provisions apply. The Claimant had two complete years of service with the first Respondent and was therefore entitled to 2 weeks notice. The Claimant was a satisfactory employee.

[18]The Claimant’s father was diagnosed with terminal cancer and sadly had died by the start of January 2020. Cancer is automatically a disability within the meaning of the Equality Act 2010. The Claimant’s mother has a physical impairment. The Claimant has given details of this in his email to the tribunal on 26 October 2020. The tribunal accepted that C’s parents were both disabled – and that the Respondents had knowledge of the Claimant’s father’s disability (cancer) from 4 December 2020 and that the Respondents had knowledge that his mother had had an operation from 4 5 of 13 December 2020. The tribunal did not find that the Respondents had sufficient knowledge to know that the Claimant’s mother was disabled. The tribunal did not consider that the Respondents were under any duty to pry into the Claimant’s family affairs by asking him any further questions about the nature of his mother’s condition. The situation was different from that when an employee tells an employer a little but not everything about the employee’s own state of health.

[19]The Claimant communicated information about his father’s cancer and his mother’s recent operation in a text message to the second Respondent on 4 December 2019. The tribunal had sight of an exchange of text messages between them that ran from that date up to and after the date of dismissal on 25 February 2020. The original purpose of the communication was for the Claimant to inform the second Respondent that he would be unable to work for a period of time due to the difficulties that his parents were facing. The second Respondent’s initial response was comforting and understanding. The Claimant updated the second Respondent on 10 December 2019 stating “I really don’t know when I’ll be back”. The second Respondent replied on the same day “ . . . do you think we should off hire your van until your back, will leave it totally up to you, take care.”

[20]The second Respondent clarified for the tribunal that ‘off hiring’ the van meant returning the van to the hire company after it had been ‘de-stickered’ – i.e. after the Anglian Water logos had been removed. The van used by the Claimant was costing the first Respondent money for no gain during this period.

[21]The Claimant indicated on 16 December 2019 that he was “looking at returning to work tomorrow”. The second Respondent replied that it would “be nice to have you back”. In fact the Claimant got as far as the Respondents’ yard on 17 December 2019 but couldn’t go back to work. He informed the second Respondent that day stating “. . . if the van needs collecting I understand . . .”. The Respondents did collect the van on 18 December 2019. The second Respondent’s evidence was that it was ‘de-stickered’ and returned to the van hire company.

[22]On 3 January 2020, the Claimant informed the second Respondent of his father’s death. He asked “could you tell me if I’m still employed by yourself and any existing holiday will be payed and any sick pay arranged”. The Claimant submitted a medical certificate signing him off between 17 December 2019 and 31 January 2020. This was subsequently extended to mid February 2020. The second Respondent replied appropriately and told the Claimant that “Holiday pay has been paid and sick pay has been activated.”

[23]The Claimant spoke to both Mick Wood and Robin Clare and was given the impression that there was no work for him to go back to.

[24]On 17 February 2020, the Claimant texted the second Respondent “I have spoken to Mick Wood also robin Clare with regards to returning to work should have been today however have been told there is no work could you please inform mw if I am still employed or have finished? I trust if I have finished any notice or outstanding payments ie wages / holiday and monies also letter of end employment will be forwarded to myself”. The Claimant chased the second Respondent for a reply on 19 February 2020. On 19 February the second Respondent texted to ask the Claimant 6 of 13 “Are you any good at plumbing and tiling . . is [sic] so I might have something for you”. The Claimant replied that he was no good at plumbing or tiling. The Claimant chased in relation to sick pay and his employment status generally on 20 and 21 February 2020.

[25]On 25 February the second Respondent sent the following text: “Morning Micheal l have checked with the accountant and they hay confirm that you will receive 2 lots of pay today with you p45, I have spoken to Mick Wood your supervisor and he has confirmed that he has spoken to you, hopefully we can find some work for you in April on the AW contract.”

[26]The Claimant received 2 payments at or shortly after the termination of his employment for £123.45 and £282.46. It is agreed that these represented SSP (not full pay) up to the date of termination and payment for accrued holiday entitlement.

[27]SSP was paid at a rate of £94.25 gross and £64.85 net per week for the period up to dismissal.

[28]In text messages to the second Respondent in March 2020, the Claimant chased for payslips and a breakdown of any pay due and a P45 and redundancy pay and notice pay and a letter confirming that his employment was at an end but he did not receive any of those things. The Respondents say that they sent him a P45. The Claimant says he did not receive it. The Claimant had effectively been discarded by the Respondents and the second Respondent in oral evidence volunteered that he hadn’t realised that the Claimant had 2 years service and therefore the right to a redundancy payment. The tribunal could not help but notice that in the months since it became clear that the Claimant did have 2 years service, the Respondents have still not paid him a redundancy payment or indeed any notice pay. This was unimpressive.

[29]During the last 7 days of the Claimant’s employment, he was fit for work but not offered any work. The tribunal accepted the Respondents’ evidence that there was no work to give him. However he was contractually entitled to be paid at a rate of £80 per day for that period.

[30]It is agreed that the Claimant was dismissed on 25 February 2020.

[31]There is no evidence before the tribunal that any thought was given to placing the Claimant in a pool with e.g. Mr Davy. Aside from the text about tiling and plumbing there is no evidence of any attempt to find additional work for the Claimant. The first Respondent’s contract with Weir for Anglian Water in Suffolk continued and continues to this day.

[32]There is no evidence before the tribunal that any process whatsoever was followed. The Claimant was not invited for a meeting – in person or by telephone. He was not ‘consulted’ in any way. He was given no right to appeal against the decision to dismiss.

[33]It is unsurprising that the Claimant states that he was distressed by the Respondents’ conduct. 7 of 13

[34]On 23 August 2020, the second Respondent emailed the Tribunal in the following terms: I can confirm that Micheal Hannant was offered alternative work on anther contract, he decided not to take it. It was Anglian water that told us they have no work for him at the moment so we had to let him go, we paid him his notice and all holiday pay that was owed to him, the only thing that I can see is that we may owe him redundancy pay of one week that I'm more than happy to do. Michael Hannant is now working for Anglian water doing the same job.

[35]That email is in part misleading. It is not accurate to say that the Claimant was offered alternative work, nor that the Claimant was paid his notice.

[36]Happily the Claimant has been able to get alternative work and since 1 September 2020 he has been working directly with Kier on Anglian Water work.

[37]By email dated 14 December 2020, clearly prepared for this hearing and in response to a request by the Respondents, Robin Clare of Kier emailed Mr Wood of the first Respondent stating as follows: Hi Mick I can only tell you what I remember as this was a year ago now. I was looking after Michael Hannant { sub-contractor } while he was working for kier in the Norwich area. Michael had to have some time off while his father was in the hospital mid to end of November time of 2019. I remember that his father was not well at all the November / December of 2019 and in the December, he unfortunately lost his father and so I believe he also suffered another lose in his family at the same time. In January of 2020 after his father's passing, Michael wasn't in a good place, so he didn't return to work in the January. The plan was to have Michael back in the February of 2020, but I had a conversation with my area manager, and it was decided due to the very low work we had on our contract that we couldn't have Michael back. I spoke to Mick Wood {Michael Hannant's boss} regarding Michael and explained the situation of the low work we had on the contract and that we will have to let Michael go and that he would not be returning to kier. I meet with Michael {sub-contractor} in the Norwich depot at the beginning of February to explain the situation we were in and that he will no longer be working for Kier and that the company Michael was working for will hopefully find him somewhere to work.

[38]No notice pay or redundancy pay was ever paid to the Claimant. The respondent does not dispute before this tribunal that the Claimant was entitled to both redundancy pay and notice pay.

[39]The Respondents contend that the reason for dismissal was redundancy and that the dismissal was fair in all the circumstances and that any disabilities of the 8 of 13 Claimant’s parents played no part in his dismissal and indeed that the Respondents were unaware that the Claimants mother was or might be disabled. If the dismissal is found to be procedurally unfair, the Respondents say that the Claimant would inevitably have been dismissed in any event. The Claimant says the real reason for dismissal was that he had had caring responsibilities for his ailing parents – which amounted to a dismissal because of disability. Relevant Law Notice pay

Relevant Law

[40]The Claimant is entitled to statutory notice of 1 week’s pay per year worked which is calculated with reference to ‘a week’s pay’. The formula for determining this is set out in sections 220–229 Employment Rights Act 1996. Broadly speaking, for employees who have ‘normal working hours’, the amount of a week’s pay is the amount payable by the employer to an employee who works his or her normal working hours for a week. For employees who have no normal working hours, the ‘average weekly remuneration’ over a 12-week period is taken. Unfair Dismissal

[41]The relevant part of section 98 Employment Rights Act states:(1) 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.

(2) A reason falls within this subsection if it— . . . (c) is that the employee was redundant, . . . (4) 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

[42]Redundancy is defined at section 139(1) Employment Rights Act 1996: 139 Redundancy (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish. 9 of 13

[43]Entitlement to a redundancy payment begins when an employee has 2 years of qualifying service and the amount of the payment is calculated on the basis of a week’s gross pay times the number of complete years of service times a multiplier which is dependant on age and which in the Claimant’s case is 1.5.

[44]Part I of the Employment Rights Act 1996 sets out the matters that are required to be included in the statement of employee terms and conditions that must be given to an employee within 2 months of the start of employment. Section 38(2) and (3) of the Employment Act 2002 states that: 3) If in the case of proceedings to which this section applies—(a) the employment tribunal makes an award to the employee in respect of the claim to which the proceedings relate, and

(b) when the proceedings were begun the employer was in breach of his duty to the employee under section 1(1) or 4(1) of the Employment Rights Act 1996 [or under section 41B or 41C of that Act], the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead. (4) In subsections (2) and (3)— (a) references to the minimum amount are to an amount equal to two weeks' pay, and (b) references to the higher amount are to an amount equal to four weeks' pay. (5) The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.

[45]Section 13 of the Equality Act 2010 states: 13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[46]The person who is treated less favourably does not have to have the protected characteristic themselves. Disability is one of the protected characteristics under the legislation. Conclusions Notice pay

Conclusions

[47]The Claimant had been employed for 2 complete years and was therefore entitled to 2 weeks of statutory notice. The Claimant’s normal pay for a week was £400 gross. In calculating notice pay, there is no need in the Claimant’s case to look at average weekly remuneration over a 12-week period as suggested by the Respondent. The Claimant was not given any notice, nor was he paid in lieu of notice. Therefore he is entitled to £800 gross for his notice period. Dismissal – reason for dismissal

[48]The Tribunal accepted Mr Hambling’s evidence to the effect that this was precarious employment – and that for such a small employer, there was little that could be done if Kier / Anglian Water no longer wanted the services of one of the Respondent’s employees. 10 of 13

[49]The tribunal accepted that once Kier / Anglian Water had indicated that they no longer needed the Claimant, the requirements of the Respondent’s business for employees to carry out work of a particular kind, had ceased or diminished. A genuine redundancy situation had arisen.

[50]The tribunal was concerned that the Claimant’s van was taken back to be offhired and de-stickered as early as 18 December 2019 which might have pointed towards at least the Claimant’s illness as a reason for dismissal – albeit perhaps not the disabilities of the Claimant’s parents. However the tribunal accepted the evidence of Mr Hambling that his small business could not afford to have a vehicle idle and took into account that the Claimant had not resisted the removal of his van at that time.

[51]The tribunal also considered whether Kier / Anglian Water may have taken the decision to pull work from the Respondent because they were concerned about the Claimant having been removed from the workplace because of his reaction to his parent’s illness and then the bereavement and whether in that way it could be said that the Respondent’s dismissal of the Claimant was because of disability. However the tribunal had to determine the issues on the basis of the evidence and argument before it and not its own speculation. There was no evidence that this was Kier / Anglian’s motivation and the Claimant’s argument was focused on the Respondent’s failure to include its other worker or workers in a pool with the Claimant.

[52]It follows that the reason for dismissal was redundancy which is a potentially fair reason for dismissal. Dismissal – fairness

[53]The dismissal was quite clearly procedurally unfair. Indeed there was no process. There was no consultation meeting or even conversation with the Claimant; no real search for alternative employment and no consideration given to whether the Claimant should have been kept on and the ‘self employed’ worker mainly working in Suffolk let go. Dismissal – Polkey

[54]It was clear to the tribunal from the evidence of Mr Hambling that the Respondent did not have much if any means of procuring alternative work at the relevant time and also that Mr Hambling valued Mr Davy more than the Claimant because Mr Davy was seen as being more flexible. The tribunal considered that if there had been a proper process and a proper search for alternative employment there was only a 25% chance that the Claimant would not have been dismissed in any event. His compensatory loss is therefore reduced to 25% of the full figure. Dismissal – Compensation

[55]The Claimant adequately mitigated his loss. Despite the pandemic, he was able to find alternative employment within 6 months. The tribunal were satisfied that his losses should not be further reduced on the grounds of failure to mitigate. 11 of 13

[56]Six months of net loss at £340 per month comes to £2,040 net.

[57]Adding £400 for loss of statutory rights to reflect the fact that the Claimant would need to work for a new employer for 2 years to regain the right to claim unfair dismissal and the right to a redundancy payment, the total compensatory award is £2,440. 58. 25% of that figure is £610. Redundancy payment

[59]The reason for dismissal is redundancy. It is accepted by the Respondent that the Claimant is entitled to a redundancy payment and that he was not paid such a payment. The redundancy payment is £1,200, being 2 x £400 x 1.5. Discrimination

[60]The reason for the dismissal was redundancy. It was not that either or both of the Claimant’s parents were disabled. It could not have been because the Claimant’s mother was disabled because the Respondent did not have actual or constructive knowledge of that disability. It was not because the Claimant’s father had a disability. That claim fails and is dismissed.

[61]It is only the discrimination claim that could be brought against the second Respondent. As that claim has failed, the claim against he second Respondent is dismissed. Adequacy of terms and conditions

[62]The Claimant did receive a statement of terms and conditions. The Claimant, who was represented, did not highlight any particular failure of that statement of terms and conditions during the hearing that was inadequate. The tribunal did not consider it to be a good example of such a statement but this was a very small employer and in combination with the offer letter (albeit that that was not permitted by the statutory requirement), it did state most of the things required by section 1 Employment Rights Act 1996. We did not feel that it was just and equitable to award 4 weeks pay but we are obliged to award 2 week’s pay under section 38 Employment Act 2002, given that some of the information is contained in a separate document, the absence of a reference to the notice to be given by the employer, the absence of a place of work and the erroneous reference to 21 days holiday (in fact the statutory minimum of 28 days were actually allowed).

[63]This amounts to £800. ACAS Code

[64]Given that this was found to be a redundancy dismissal, the ACAS Code of Practice does not apply and therefore there is no uplift. 12 of 13 Summary

[65]The total amounts due to the Claimant from the first Respondent are summarised in the Judgment.

[71]Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.

[72]Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations. 2 of 5

(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part” 5. The judgment as it stood contained the following order: redundancy but the dismissal was procedurally unfair. The compensatory award comprises the following elements: b. 2040 net loss of earnings for a period of 6 months reduction of compensation under the principle in Polkey to take account of the possibility that the Claimant would have been dismissed in any event if a fair process had been followed. dismissal is therefore £610. 6. The reasons as they stood contained the following provisions: 9. It was specifically agreed after the lunch adjournment that gross weekly pay was £400 and net weekly pay was £340 . . . 56. Six months of net loss at £340 per month comes to £2,040 net. 57. Adding £400 for loss of statutory rights to reflect the fact that the Claimant would need to work for a new employer for 2 years to regain the right to claim unfair dismissal and the right to a redundancy payment, the total compensatory award is £2,440. 58. 25% of that figure is £610. 7. The basis of the Claimant’s reconsideration request is that the tribunal has fallen into a calculation error in that at paragraph 56, it has used the figure for a week’s net pay instead of a month’s net pay and that therefore the calculations at paragraphs 57 and 58 are also wrong and therefore that the figures in paragraph 7(b) ad paragraph 8 of the judgment are also wrong. 8. The request for reconsideration was referred initially to EJ Allen QC who accepted that the application was in time and that on the basis that the calculation used by the tribunal appeared to be plainly wrong, there was a reasonable prospect of the original decision being varied or revoked and therefore the application will proceed to the second stage for consideration before the full tribunal. 3 of 5 9. The Claimant’s email of 5 January 2021 also made reference to grossing up of the unfair dismissal loss of earnings figure. The tribunal has no record of hearing submissions on why it would be that an award of substantially under £30,000 would not be covered by section 41 ITEPA 2003 nor has the email of 5 January 2021 set out any such submissions. EJ Allen QC determined that there was no reasonable prospect of the original decision being varied or revoked in that regard. 10. The Respondent was given the opportunity to make representations and by email dated 25 February 2021, the Respondent made its own application for reconsideration. The Claimant responded by email dated 25 February 2021 objecting to that application. Neither party requested a hearing. Neither party objected to EJ Allen QC’s proposal that the matter be dealt with on paper. 11. The Respondent’s application was considerably out of time and in addition, EJ Allen QC determined that there was no reasonable prospect of the original decision being varied or revoked in relation to any of the matters raised. The Respondent’s application did not therefore pass through the first stage of the reconsideration process. 12. The full tribunal were sent the application and both parties’ emails of 25 February 2021 and the full tribunal decided that it had fallen into error in using the figure for a week’s net pay instead of a month’s net pay and that paragraphs 7 and 8 of the Judgment would be varied as follows to read: redundancy but the dismissal was procedurally unfair. The compensatory award comprises the following elements: b. 8840 net loss of earnings for a period of 6 months reduction of compensation under the principle in Polkey to take account of the possibility that the Claimant would have been dismissed in any event if a fair process had been followed. dismissal is therefore £2,310. 13. The full tribunal also decided that paragraphs 56 to 58 of their Reasons be varied as follows: 56. Six months of net loss at £340 per week comes to £8,840 net. 57. Adding £400 for loss of statutory rights to reflect the fact that the Claimant would need to work for a new employer for 2 years to regain the right to claim unfair dismissal and the right to a redundancy payment, the total compensatory award is £9,240. 58. 25% of that figure is £2,310. 4 of 5 14. The tribunal apologies to the parties for the confusion caused by its calculation error.

Conclusions

[1]The Respondent has behaved unreasonably in its conduct of the proceedings.

[2]The Respondent must pay costs of £500 plus VAT of £100 totalling £600 to the Claimant via his solicitors, Fosters Solicitors LLP.

Conclusions

[1]Following a hearing on 15 December 2020, the reserved Judgment and Reasons was sent to the parties on 4 January 2021 and an application for costs was made by the Claimant on 4 January 2021.

[2]The Tribunal made case management orders on 13 August 2021 proposing to deal with the costs matter on paper (i.e. without a hearing) unless any party objected and requiring the Claimant to respond by 6 September with a written submission setting out all the bases on which costs were sought and attaching all relevant correspondence or other documentation. The Respondent was permitted to respond by 27 September 2021. 1 of 9

[3]Neither party objected to the Tribunal’s proposal that the matter be dealt with on paper. The tribunal met in chambers on 21 December to determine the application for costs.

[4]The Claimant sent his submission (late) on 10 September attaching relevant documents. The Respondent did not reply at all. The Tribunal have considered this matter in chambers. The Claimant has re-supplied the Tribunal with the 80 page bundle which was before the Tribunal at the hearing on 15 December 2020.

[5]The Claimant seeks his costs of £5,262 plus VAT totalling £6,314.40. The costs are broken down in a Schedule attached to the written submissions and their level has not been challenged by the Respondent. They are reasonable, indeed moderate, costs for this type of work.

[6]In summary, the basis of the Claimant’s application is that the Respondent behaved unreasonably in the conduct of proceedings:6.1 by failing to submit a response on time, necessitating an application to do so out of time;

6.2 (as a consequence of (a)) by placing the burden on the Claimant of preparing the case including the hearing bundle;

6.3 by failing to pay those elements of the claim that were admitted prior to the final hearing (e.g. the redundancy payment);

6.4 by failing to pay those elements of the claim that were (in the Claimant’s contention) unarguable (i.e. the 7 days pay for the last week of employment);

6.5 making a late without prejudice offer of £2,500 when most of the costs of the hearing had been incurred by the Claimant;

6.6 by denying all the claims and putting the Claimant to strict proof;

6.7 in its application on 25 February 2021 out of time for reconsideration - in regard to the content of that application and to the false assertion in that application that some payment had already been made;

[7]The Claimant disclosed without prejudice correspondence from the Respondent’s representative to the Claimant’s representative dated 12 December 2020 in which the Respondents offered £2,500 in full and final settlement of all claims. It also records that the Claimant at that time was seeking a total of £16,442. The Claimant’s open Schedule of Loss dated 5 October 2020 which was in the Tribunal’s bundle sought a total of £23,998,12.

[8]The Claimant had been employed by the Respondent for just over 2 years. He was paid £400 gross per week. The Claimant’s claim was presented on 18 May 2020. He claimed unfair dismissal, disability discrimination (by association), notice pay, holiday pay and arrears of pay (including a redundancy payment if the Claimant’s 2 of 9 dismissal was by reason of redundancy – which was not agreed by the Claimant to be the reason for dismissal).

[9]Initially the Respondent did not present a response to the claim. Following an application by the Respondent in early November 2020, it was permitted to enter a late response at a preliminary hearing on 7 December 2020. The Respondent’s Particulars of Response contested all elements of the claim save that it contended that the reason for dismissal was redundancy and therefore it conceded the claim for redundancy pay. However the Respondent did not pay the claim for redundancy pay at that point.

[10]The issues had largely been agreed at a preliminary hearing on 14 September 2020. In the record of that hearing, the Employment

Judge noted at para 11:

[11]Mr Hambling accepted that the Claimant was owed redundancy pay because he had been with them 2 years, he thought he owed him 1 week's pay. I explained that as the Claimant was over 41 years old at the relevant time the statutory redundancy pay is 1.5 week's pay for each year's service. The Respondent accepts he is owed 3 weeks' pay. 11. The Employment Judge at that preliminary hearing also made clear to the Respondent the consequences of not having entered a response. That should already have been clear to the Respondent given the letter to that effect sent by the tribunal on 21 August 2020. The Respondent however took a further 7 weeks after the preliminary hearing before making an application to enter a response out of time.

[12]Following discussion at the hearing on 15 December 2020, the remaining issues were as follows: Unfair Dismissal contrary to sections 94 and 98 Employment Rights Act 1996 Was there a genuine redundancy situation?

b. The first Respondent contends that dismissal was by reason of redundancy.

[4]Was the first Respondent’s decision to dismiss within the range of reasonable responses open to a reasonable employer?

[8]Did the Respondents treat the Claimant less favourably:a. by not paying him his contractual salary when he was available to work in the last 7 days of his employment;

b. by dismissing him? than it would have treated a hypothetical comparator in the same relevant circumstances?

[9]Was that less favourable treatment because of disability?

[13]If redundancy is not the reason for the Claimants dismissal, did the Respondent breach some or all of paragraphs 2, 3, 4, 5, 7, 9, 10, 11 and 13 of the ACAS Code of Practice. If so should the Claimant’s compensatory award be increased and if so, by what percentage?

[14]The Tribunal Judgment and Reasons was sent to the parties on 4 January 2021 was reconsidered by the tribunal on application by the Claimant and part of the Judgment (relating to a calculation error on the part of the tribunal) was amended and 1. The claim of disability discrimination fails and is dismissed. 2. The claim against the second Respondent, Gary Hambling, fails and is dismissed. 3. The redundancy pay claim is conceded by the Respondent and succeeds. The Respondent must pay to the Claimant the sum of £1200 being 2 x 1.5 times the Claimant’s gross weekly pay of £400. That sum is not subject to taxation. 4 of 9 4. The notice pay claim succeeds. The Respondent must pay to the Claimant the sum of £800 gross being 2 times the Claimant’s weekly pay of £400. The notice pay claim may be subject to taxation either at source or in the hands of the Claimant. 5. It having been agreed that any claim for underpayment of accrued holiday entitlement upon termination of employment has been satisfied, that claim is dismissed. 6. The Claimant’s claim for full payment of 7 days wages up to the date of dismissal on 25 February when he was no longer off sick but available for work succeeds. The total due for that period is 7 x £80 per day equals £560 to which the payment of SSP for 7 days at £131.95 must be deducted. The total gross owed to the Claimant is £428.05. This gross sum may be subject to taxation either at source or in the hands of the Claimant. 7. The claim for unfair dismissal succeeds. The reason for dismissal was redundancy but the dismissal was procedurally unfair. The compensatory award comprises the following elements:a. 400 loss of statutory rights

b. 8840 net loss of earnings for a period of 6 months

c. This totals 9240

d. This amount is reduced to 25% of the total on the basis of the tribunal’s reduction of compensation under the principle in Polkey to take account of the possibility that the Claimant would have been dismissed in any event if a fair process had been followed. 8. The total net amount payable by the Respondent to the Claimant for unfair dismissal is therefore £2,310. 9. Given that this was found to be a redundancy dismissal, the ACAS Code of Practice does not apply and therefore there is no uplift. 10. 2 week’s pay in the total sum of £800 is awarded under section 38 Employment Act 2002 because of the inadequate provisions of the statement of terms and conditions given to the Claimant.

[15]The Tribunal notes that the total awarded to the Claimant was £5,538.05.

[16]In its Reasons, the Tribunal noted at para 28: 28. The Claimant had effectively been discarded by the Respondents and the second Respondent in oral evidence volunteered that he hadn’t realised that the Claimant had 2 years service and therefore the right to a redundancy payment. The tribunal could not help but notice that in the months since it became clear that the Claimant did have 2 years service, the Respondents have still not paid him a redundancy payment or indeed any notice pay. This was unimpressive.

[17]In paras 31 and 32 of the Reasons, the Tribunal stated:32. There is no evidence before the tribunal that any process whatsoever was followed. The Claimant was not invited for a meeting – in person or by telephone. He was not ‘consulted’ in any way. He was given no right to appeal against the decision to dismiss.

33. It is unsurprising that the Claimant states that he was distressed by the Respondents’ conduct.

[18]At paragraphs 34 and 35 of its Reasons, the Tribunal stated: 5 of 934. On 23 August 2020, the second Respondent emailed the Tribunal in the following terms: I can confirm that Micheal Hannant was offered alternative work on an[o]ther contract, he decided not to take it. It was Anglian water that told us they have no work for him at the moment so we had to let him go, we paid him his notice and all holiday pay that was owed to him, the only thing that I can see is that we may owe him redundancy pay of one week that I'm more than happy to do. Michael Hannant is now working for Anglian water doing the same job.

35. That email is in part misleading. It is not accurate to say that the Claimant was offered alternative work, nor that the Claimant was paid his notice.

[19]And at paragraph 38: 38. No notice pay or redundancy pay was ever paid to the Claimant. The respondent does not dispute before this tribunal that the Claimant was entitled to both redundancy pay and notice pay.

[20]The Respondent paid the amounts due on 12 March 2021 after a threat by the Claimant on 11 March 2021 to enforce the judgment through the civil courts.

[21]The Respondent made an application for a Reconsideration out of time on 25 February 2021. It was rejected by the Employment Judge on the basis that there was no reasonable prospect of the judgments being varied or revoked in relation to any of the matters raised. In the Respondent’s application it referred to a payment “already made”. However no such payment had been made at that date.

[22]The relevant part of the Claimant’s application for costs dated 4 January 2021 states as follows: It is the Claimant’s case that it was unreasonable for the Respondent to maintain that the Claimant was only owed one weeks redundancy pay, which is denied, and simply not pay it. In addition, it was unreasonable for the Respondent not to have paid the Claimant his correct pay and notice pay and/or to engage with the Acas early conciliation process causing the Claimant to incur the expense of having to seek legal advice and issue a claim. It is further submitted that the Respondent’s conduct in its application to file its response out of time contained statements which the Claimant will say were untrue. On instructing solicitors, it was open to the Respondent, now in receipt of legal advice, to make the payments owed to the Claimant and/or engage with the Claimant’s representative over the same. In any event, at the date of the hearing the Respondent had not made any payments to the Claimant even though it had accepted, albeit to redundancy only, a payment was owed. That said, and on the evidence before the Respondent and the tribunal, it was obvious that payment for the days the Claimant was available to work were not paid, in addition his notice pay had not been paid. The Claimant will say that the Respondent’s actions were unreasonable and that it has only been by the determination of this tribunal that any payment will be made to the Claimant. The Claimant therefore makes this application for a costs order or wasted costs order in the sum of £5,262.00 plus 20% VAT £1,052.40 totalling £6,314.40 and in accordance with the attached Schedule of Costs for the Respondent’s and/or its legal representative’s unreasonable conduct. 6 of 9

[23]The Tribunal notes the reference to the ACAS Early Conciliation period. A refusal to engage with ACAS may be unwise but it is not unreasonable behaviour and in any event the conduct of the parties during the ACAS Early Conciliation period is not something that the Tribunal is permitted to take into account and the Tribunal has put that aside.

[24]In the written submissions submitted on 10 September 2021, the Claimant made reference to a without prejudice offer of £2,500 from the Respondent on 12 December 2020, just before the hearing, noting that the preparatory work for the hearing had already been done and costs incurred.

Legal Framework

[25]Costs do not follow the event in the Employment Tribunal.

[26]The relevant grounds for making a costs order under rule 75(1)(a) of the Tribunal Rules are set out in rule 76(1): 76.— When a costs order or a preparation time order may or shall be made (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; [...]1 (b) any claim or response had no reasonable prospect of success

[27]The grounds are discretionary - i.e. the tribunal may make a costs order if the ground is made out but is not obliged to do so. Although those two grounds are discretionary, the tribunal is under a duty to consider making an order when they are made out - rule 76(1).

[28]It is not punitive and impermissible for a tribunal to order costs without confining them to those attributable to that conduct. A tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring the costs-seeking party to prove that specific unreasonable conduct by the other party caused particular costs to be incurred. Conclusions Has there been unreasonable behaviour / has part or all of the Respondent’s case had no reasonable prospects of successa. by failing to submit a response on time, necessitating an application to do so out of time;

b. (as a consequence of (a)) by placing the burden on the Claimant of preparing the case including the hearing bundle; 7 of 9

Conclusions

[29]Taking the first two matters together, there is no obligation on a party to instruct solicitors when bringing or pursuing proceedings. Therefore, the failure to instruct solicitors until late in proceedings does not in itself constitute unreasonable conduct. Ignorance of the process does not necessarily amount to unreasonable behaviour – although the tribunal note that guidance is sent out with claim forms to assist Respondents to complete the response and that basic information as to the employment tribunal process is widely available.

[30]The initial failure to respond was not in itself unreasonable behaviour and the making of an application to be permitted to enter a response out of time was not in itself unreasonable behaviour. However, given the correspondence from the tribunal on 21 August 2020 and the Respondent’s attendance at the hearing on 14 September 2020 and its understanding of the consequences of its failure to enter a response at that point (if not earlier) the tribunal were troubled by the failure of the Respondent to make a timely application for permission to enter a response out of time. That put the Claimant to additional expense and caused additional stress. The tribunal considered the Respondent’s behaviour overall in the conduct of this litigation before arriving at the conclusion that this specific behaviour of the Respondent amounted to unreasonable conduct of the litigation. c. by failing to pay those elements of the claim that were admitted prior to the final hearing (e.g. the redundancy payment);

[31]It was not unreasonable to admit that the redundancy payment was due. The tribunal have already noted that it was unimpressive that the Respondent failed to pay the redundancy pay earlier. However this was a case in which the Claimant was arguing that the reason for his dismissal was not redundancy and therefore this only became certain upon the tribunal’s judgment and the tribunal did not consider that the unimpressive behaviour of the Respondent amounted to unreasonable conduct of the litigation. d. by failing to pay those elements of the claim that were (in the Claimant’s contention) unarguable (i.e. the 7 days pay for the last week of employment);

[32]The tribunal did not consider that this was unarguable or that in seeking to argue about it, or at the very least requiring the Claimant to prove it, the Respondent has acted unreasonably in its conduct of the litigation nor that the Respondent had no reasonable prospect of success on this element of the claim. e. making a late without prejudice offer of £2,500 when most of the costs of the hearing had been incurred by the Claimant;

[33]A failure to adopt a proper negotiating position can be unreasonable in some circumstances as can a failure by a party to accept an offer put by the other side. However there is nothing unreasonable in this Respondent making an offer, nor in the size of this offer, nor in the timing of the offer. Many cases in the employment tribunal are settled shortly before or even during a final hearing. f. by denying all the claims and putting the Claimant to strict proof; 8 of 9

[34]The Respondent did not deny all of the claims. The Claimant did not win all of his claims. In particular in relation to the unfair dismissal and disability discrimination claims, which took up most of the time during the hearing, it was not unreasonable for the Respondent to require the Claimant to present his evidence to the tribunal. The positions adopted by the Respondent at the hearing were not unarguable and their arguments were not without any reasonable prospect of success. g. in its application on 25 February 2021 out of time for reconsideration - in regard to the content of that application and to the false assertion in that application that some payment had already been made;

[35]The tribunal noted that this was the second occasion on which the Respondent has made false assertions to the tribunal in correspondence. This was unreasonable behaviour, whether or not there was any direct costs consequence for the Claimant. The Respondent on both occasions tried to create a false impression as to the reasonableness of its stance. The Respondent has been offered an opportunity to comment and has failed to take it. The tribunal decided that this was unreasonable behaviour in the conduct of the proceedings. Costs consequence if any

[36]The tribunal reminded itself that there need not be a direct causal link between the specific unreasonable behaviour and specific costs incurred by the Claimant as a result of that behaviour, although looking at such a link could be a relevant factor in determining whether to award costs and if so at what level.

[37]The tribunal considered the Claimant’s costs schedule and noted that a large part of the costs claimed therein would have been incurred in any event. The tribunal noted that nearly £500 plus VAT of costs were related in some way to the late application for permission to enter a response and the burden on the Claimant of preparing the bundle for the final hearing.

[38]Adopting a broad brush approach and taking into account all of the aspects of unreasonable behaviour as listed above which included the making of false assertions to the tribunal, the tribunal determined that it was appropriate to make a costs award against the Respondent and that the amount of £500 plus VAT was proportionate.

[39]The amount of £100 VAT is added to the costs of £500.

[40]Therefore the Respondent is ordered to pay £500 plus VAT of £100 totalling £600 to the Claimant via the Claimant’s solicitors.