Ms A Urzedowicz v H&M Hennes & Mauritz UK Ltd: 3301010/2021
EMPLOYMENT TRIBUNALS
Case No 3301010/2021
Between
Ms A UrzedowiczClaimantH&M Hennes & Mauritz UK LtdRespondent
Before
Employment Judge M OrdMs D Janusz (instructed by Solicitor) for claimantMr T Walker (instructed by Counsel) for respondentDate 14 September 2023
JUDGMENT
[1]Unfairly dismissed;[2]Dismissed in breach of contract; and[3]Suffered unlawful deductions from her wages; are not well founded and the claim is dismissed.
REASONS
[1]The Claimant was employed by the Respondent from 13 October 2015 until 20 October 2020 as a Sales Assistant working at the Respondent’s premises at Bletchley (Store 777).[2]Following a period of Early Conciliation which began on 21 December 2020 the Claimant was issued with an Early Conciliation Certificate by ACAS on 6 January 2021 and presented her Claim Form to the Employment Tribunal on 5 February 2021.[3]The Claimant complained that she had been unfairly dismissed, dismissed in breach of contract and had suffered unlawful deductions from her wages. The Respondent denied all the claims.[4]The Respondent is a high street fashion retailer. The Respondent says that the Claimant was dismissed for some other substantial reason justifying her dismissal, namely that she had relocated and could not attend work.
The Hearing
[5]The case was listed for two days and notwithstanding this the Respondent was intending to call five witnesses and the Claimant would also give evidence. There was a further, sixth, witness for the Respondent whose witness statement was submitted but who did not attend to give their evidence. Their statement was given the appropriate weight.[6]In addition there was a Bundle of 591 pages, the Respondent had submitted a Skeleton Argument of 24 pages in length together with a chronology and information regarding the Coronavirus Act. After discussion, the parties’ Representatives agreed that the case would be strictly timetabled to ensure that all evidence was concluded within the time allotted for the Hearing, with the parties to make written closing submissions within 7 days thereafter. Judgment would be reserved. Whilst this was not entirely satisfactory and I made it clear to the parties that where there was a clear indication, as there was in this case, that the time allocation provided for the Hearing was inadequate the parties should contact the Tribunal and arrangements would be made to either extend the length of the Hearing or re-list the case when a full time allocation was available. The current situation was to a degree unsatisfactory.[7]The Respondent called the following witnesses: James Stretton, Area Controller, Area 3 (South West England and South Wales) and previously Store Manager for the Respondent’s Castlepoint store in Bournemouth; Alba Jimenez, Store Manager for the Respondent’s Store at Didcot and at the relevant time Manager of the Respondent’s Bournemouth Town Centre store; Michael Letang, Area Human Resources Manager, Area 12 (which includes Bletchley and Store 777); Amelia Franklin, previously Store Manager for the Respondent’s Castlepoint Store in Bournemouth, thereafter Area Recruiter who handled the Claimant’s Appeal against dismissal; and Laura Waskett, Employee Relations Support.[8]The statement of Veronika Giannakidou was presented to the Tribunal, but that witness did not give evidence.[9]The Claimant gave evidence.[10]Reference was made to parts of the Bundle of documents. The Facts Based on the evidence provided I made the following findings of fact:
The Facts
[11]The Claimant had worked at the Respondent’s Store 777 from 13 October 2015.[12]The Manager was Veronika Giannakidou.[13]In the early part of lockdown in early 2020 the Claimant, for personal reasons, needed to move house and found premises to rent in Bournemouth. She contacted her Manager about the move and that she would intend to transfer to one of the Respondent’s Bournemouth stores.[14]From 1 April 2020 due to lockdown, all of the Respondent’s employees were placed on Furlough. Some began to return to work on 8 June 2020 with some stores opening from 15 June 2020 onwards.[15]At the time when the Claimant was moving from her home in Milton Keynes to her new home in Bournemouth, therefore, the Respondent had employees on Furlough. The Claimant had been advised to contact the Bournemouth stores by telephone and to check the Respondent’s intranet “Back Stage” system to apply for any vacancies.[16]The Claimant complains that she was not told by her Manager to complete a Transfer Form, but that she was told to do this by colleagues. The fact is that a Transfer Form was completed.[17]There were two stores in Bournemouth, Castlepoint (614) managed by Mr Stretton and Town Centre (640) managed by Ms Jimenez.[18]The Respondent rightly pointed out that it was not possible to always guarantee a vacancy for a transferring employee. The store to which someone wished to transfer might not have any vacancy. What the Respondent did do was to advertise vacancies weekly on its internal messaging board, Back Stage, and provided a process for internal applications to be made through Area Recruiters.[19]The “receiving” store would interview the potential transferee along with any external applicants. No preference is given to internal applicants, save that they have a natural advantage by being familiar with the Respondent’s processes and the fact they would not require training.[20]The Claimant complains that her Manager did not assist the process, but the information set out on Back Stage says this, “If you believe you are ready to take the next step in your career with H & M and if any of the above vacancies are what you are looking for, then we want to hear from you. Please speak to your Line Manager in order to apply. For all H & M vacancies published please contact the Recruitment and Talent Co-Ordinator for each Area and for vacancies for any of the Brands, see below”[21]Further, the email address for the Recruitment and Talent Co-Ordinator for each Area are set out.[22]During the entire period between the Claimant relocating to Bournemouth and her dismissal, the only vacancies advertised on Back Stage were as follows:22.1 Week 8 (17.02.20) Store 614 – 3 vacancies: 30 hours, 20 hours and 8 hours; Store 640 – 2 vacancies: 12 hours and 8 hours; Applications for these vacancies closed on 23 February 2020.22.2 Week 9 Store 614 – 4 vacancies: 35 hours, 30 hours, 20 hours and 8 hours; Store 640 – 1 vacancy: 12 hours; Applications for these vacancies closed on 1 March 2020.22.3 Week 31 Store 640 – 3 vacancies: 16 hours, 12 hours and 8 hours; Applications for these vacancies closed on 2 August 2020.[23]In her evidence the Claimant said that her expectation was that she would make her Application and be notified of a transfer within about two weeks. This was what she told Ms Franklin during her Appeal Interview, claiming that “the Manager gives you an Internal Application form and calls to a different store and the employee does nothing. They send a copy and the transfer would be in two weeks”.[24]The Claimant, throughout her internal processes and before me, seemed to be of the opinion that a transfer should be guaranteed and when this was put to her in cross examination she said that she, “Thought [I] would be able to transfer”[25]The Claimant made an Application on 21 February 2020, but only to Store 614 (and not Store 640). She applied for vacancies of 35, 30 and 20 hours.[26]The Claimant had worked at Milton Keynes mornings only Monday to Friday to accommodate childcare issues. On her Application Form, for the posts at Store 614, she indicated that she could work Monday to Saturday. She had already spoken to both Store Managers in Bournemouth. She had told Ms Jimenez that she wanted to work 30 hours per week, morning shifts only, Monday to Friday in the Delivery Department and had told Mr Stretton that she did not want to work Sundays. The Application Form which the Claimant completed did not reach either Mr Stretton or the Area Recruiter, as a result of which the Claimant was not called for interview. The Respondent has accepted that this indicates a failure in its internal system as the Claimant accepted that her Manager, Ms Giannakidou, had sent the Application Form in.[27]The vacancies at Store 640 were not filled due to Covid and lockdown, as Ms Jimenez confirmed. The three vacancies at Store 614 were filled, but when lockdown was implemented Mr Stretton confirmed that the employees who filled them were all made redundant.[28]Mr Stretton confirmed that the vacancies that he was seeking to fill would require substantial flexibility including working evenings and Sundays.[29]The Claimant alleges that she made a further Application in March 2020 which Mrs Giannakidou failed to deal with. However, I do not accept that evidence. There were no vacancies on Back Stage at that time and therefore no Application could be made for a job that did not exist.[30]The Claimant moved to Bournemouth during March 2020 and on 20 March the country went into lockdown. With effect from 21 March 2020 all of the Respondent’s premises were closed and no vacancies were advertised until 22 June 2020.[31]All qualifying staff were placed on Furlough leave by the Respondent from 21 March 2020.[32]Although there were no stores open the Claimant continued to contact the Respondent about a possible transfer. She emailed Human Resources on 18 April 2020 asking for help “finalising the transfer to the 640 Store” and on 30 April 2020 asking for the Respondent to “understand my difficult situation and to answer as soon as possible”[33]On 26 May 2020, the Claimant contacted Mrs Giannakidou, followed by another request for information on 27 May 2020. The reply was that a transfer was not a matter for Mrs Giannakidou and that the Claimant needed to get in touch with the Store to which she applied. The Claimant was informed again that it was up to her to check on Back Stage for vacancies at the store she wished to move to, if there were no vacancies there would be none in the foreseeable future and if she could not return to work in Bletchley Mrs Giannakidou indicated that she would have to resign and reapply later to the store she wanted when they had a vacancy.[34]The Claimant had been told that stores were re-opening and that she would have to report for work in Milton Keynes (Store 777) on 8 June 2020.[35]The Claimant contacted, amongst others, Mr Letang who was Area HR Manager. She stated her “problem” was that, “moving to another city, my Store Manager has not completed my transfer to the new store (Milton Keynes 777 to 614 and 640” and that she believed that “The time from sending the letter to the time of the lockdown was sufficient to complete the transfer. Most of all with a few available vacancies in the new store”.[36]The Respondent agreed to keep the Claimant on Furlough notwithstanding the fact that the stores had re-opened. Mr Letang decided to take responsibility for the Claimant’s transfer and wrote to her on 4 June 2020 asking for details of her flexibility, whether she would take any contract if available, and whether there were any stores in addition to 640 and 614 that she would be willing to travel to.[37]The Claimant’s reply was that she was, “fully flexible” and would accept “any contract” although she would prefer to work 30 hours per week. Mr Letang made an Application on her behalf, at which point the Claimant said that she was less flexible than she had previously indicated.[38]The Area Human Resources Officer in the relevant area (Area 3) advised that there were no vacancies in either of the stores at the time, but that would be reviewed within the next two weeks.[39]Mr Letang continued to monitor matters to help the Claimant and on 22 June 2020 advised that there were no vacancies in either Bournemouth store and that she would remain on Furlough until further notice. He would check again in two weeks’ time.[40]The Claimant was advised of this and then told Mr Stretton she could only work weekdays until noon, not in the afternoons, evenings or at weekends. At which point Mr Stretton said that there was no role that he could offer the Claimant because he needed people to be fully flexible, particularly for Sundays which was his busiest day and he suggested that the Claimant apply for an 8 hour contract, but she did not do so.[41]The Claimant denies that this conversation ever took place, but we accept Mr Stretton’s evidence in this regard. There was no advantage to him, or to the Respondent in inventing this discussion, but rather had assisted the Claimant’s view that the Respondent was not actioning a transfer which she believed she had a right, to deny the conversation.[42]The Claimant attended Store 640 to shop on two occasions. Although she told a member of staff that she was transferring to the store, she did not make any attempt to discuss the matter with Ms Jimenez.[43]On 24 July 2020, Mr Letang stated that the Claimant’s Furlough would end on 31 July 2020, she would be placed on extended leave until 1 October 2020 and by then if she had not secured a transfer he would discuss her continued employment.[44]The Claimant’s reply was to remind Mr Letang that the reason why she was, “currently not working is not due to [her] decision but to the powerlessness of the company which unfortunately cannot find a new place for me”[45]On 4 August 2020, Human Resources advised the Claimant that the Claimant could not remain on Furlough leave (this due to the Furlough arrangements imposed by the Government), that there were others in a similar position and as the Claimant could not fulfil her contract at Milton Keynes there was no alternative but to bring her contract to an end. To alleviate this the Respondent was offering the Claimant a period of unpaid leave and would try to identify a suitable vacancy, but there was no guarantee that one would become available.[46]On 27 July 2020, Store 640 had vacancies of 16, 12 and 8 hours. The Claimant expressed interest only in the 16 hour vacancy and said that she could start from 7 September 2020. She asked if she could be interviewed by 9 August 2020 as thereafter she would be out of the country from 10 – 18 August 2020.[47]On 30 July 2020, Mr Letang asked the Claimant for information regarding availability and her reply was that, “I would like to work on the morning shift until the mid-day because I need to pick my daughter up from school. My daughter starts the school year on 7 September 2020. In Milton Keynes I worked on Monday to Friday in Delivery Team and I am willing to work on these days if it is possible.”[48]Mr Letang included all this information on the Claimant’s Application Form.[49]The interview process did not in fact begin until 13 August 2020 and Ms Jimenez contacted the Claimant by telephone on that day and left a message asking the Claimant to arrange an Interview. There was a further voice mail message on 25 August 2020 after other attempts to contact the Claimant.[50]There was no return call from the Claimant who denied receiving Ms Jimenez’s calls. We find as a fact that the calls were made. Even if they were not, however, for someone as apparently anxious to make Applications to work in the Respondent’s Bournemouth stores, the Claimant’s lack of action is remarkable. She did not contact Ms Jimenez following her return to the UK and indeed, made no contact at all with the Respondent about the vacancies until Mr Letang contacted her again on 20 October 2020. We note further that when Mr Letang contacted her at that time to arrange a meeting to discuss her continued employment, the Claimant did not complain that nobody had been in touch with her.[51]On 23 October 2020, Mr Letang spoke to the Claimant and advised that in the circumstances her employment would be brought to an end. She was unable to fulfil her contract at Milton Keynes and had not secured any vacancy.[52]Mr Letang wrongly referred to the Claimant undergoing an interview but failing, which he accepted in his evidence was an error and a misunderstanding by him.[53]The Claimant Appealed the decision and the Appeal was conducted by Ms Franklin. She conducted a lengthy review of the position, receiving statements from Ms Jimenez and Mrs Giannakidou, as well as meeting with the Claimant on 29 December 2020. Thereafter meeting with Mr Letang and Ms Jimenez, Mrs Giannakidou and Mr Stretton.[54]The Appeal did not succeed. It was agreed that the Claimant had not attended for any interview as had been incorrectly recorded in the letter of dismissal and Ms Franklin upheld that part of the Claimant’s complaint, but it did not impact on her decision to dismiss the Appeal.[55]It is against that factual background that the Claimant brings her complaints.
The Law
[56]Under the Employment Rights Act 1996, 94. The right(1) An employee has the right not to be unfairly dismissed by his employer;(2) … 98. General (1) In determining 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 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- (a) relates to the capacity or qualifications of the employee for performing work of the kind which he/she was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which they held without contravention (either on their part or on that of their employer) of a duty or restriction imposed by or under an enactment.(3) …(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 sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[57]It has been long established ( Iceland Frozen Foods Limited v Jones [1983] ICR 17, approved by the Court of Appeal in Foley v The Post Office, HSBC Bank Plc v Madden [2000] ICR 1283 ) that when considering the question of reasonableness the Tribunal must consider: the reasonableness of the employer’s conduct, not simply whether the Tribunal consider the dismissal to be fair; that a Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; and that in many cases there is a band of reasonable responses where one employer might reasonably take one view and another quite reasonably take a different view; and that the function of the Tribunal is to determine whether in the particular circumstances of each case the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. If it does, then the dismissal is fair.[58]Taylor v OCS Group Limited [2006] ICR 1602, confirms that the Tribunal should look at the decision making process as a whole.
Conclusions
[59]Applying the facts found to the relevant Law we have reached the following conclusions.[60]The Claimant relocated from her home in Milton Keynes to a new home in Bournemouth. Whilst the reasons for that change of location may not entirely have been of the Claimant’s choosing, the fact remains that she relocated and could no longer fulfil her role working at the Milton Keynes store.[61]The Claimant, therefore, wished to transfer to one of the Respondent’s stores in Bournemouth. There were two.[62]The Claimant worked Monday to Friday, mornings only. That was the limit of her flexibility because of her childcare and other responsibilities.[63]The Claimant has, throughout the process within the Respondent and before me, adopted the approach that it was up to the Respondent to accommodate her desire to move and to find a job that suited her limited availability. This is simply not the case.[64]There were vacancies in the Bournemouth stores, but they required flexibility. Neither store had a vacancy which could accommodate the Claimant’s desire to work mornings only, Monday to Friday only.[65]Whilst the process for applying for transfer did not run as smoothly in the Claimant’s case as it might have done, this does not alter the essential facts that there was simply no vacancy within the Respondent’s business in the Bournemouth area that the Claimant applied for and that she could fulfil. This was primarily down to the nature of the vacancies and the need for flexibility which contrasted with the Claimant’s inflexibility as to her availability for work.[66]Other vacancies the Claimant did not apply for and I conclude that she did not do so because they were for too few hours per week. There were vacancies for 8 hours and 12 hours, but the Claimant did not apply for them.[67]The situation was compounded by the impact of the Coronavirus pandemic. There were closures of stores for a period of time. All nonessential retail was closed. However, when stores were re-opening the Respondent acted more than reasonably towards the Claimant by keeping her on Furlough until that became unlawful and thereafter, keeping her on special leave in the hope that vacancies would arise that she could successfully apply for. Sadly that was not the case.[68]Accordingly, by the time Mr Letang decided that matters had gone on for as long as they should, the Claimant was unavailable to carry out her role in Milton Keynes at Store 777 and had not secured a transfer to any other store.[69]In those circumstances, the Respondent acted perfectly reasonably in advising the Claimant that her employment would be terminated.[70]A thorough consideration of the matter took place on Appeal and whilst there was one minor error in the decision to dismiss (Mr Letang wrongly believing that the Claimant had failed an interview when she had not been interviewed at all) the Respondent reasonably upheld the original decision to dismiss.[71]The Claimant was not entitled to any notice pay. She was unable to carry out her contract, had been on a period of unpaid leave from 1 August 2020 until her dismissal and therefore had no entitlement to notice pay.[72]The Claimant has not pursued her complaint of unlawful deductions from wages. This apparently related to unpaid Furlough pay, but the Claimant has not adduced any evidence in support of such a claim.[73]For the above reasons the Claimant’s complaints are not well founded and the case is dismissed.