Mr J Almeida v Pertemps Recruitment Partnership Ltd: 3302663/2023
JUDGMENT
[1]By consent, the name of the respondent is amended to Pertemps Recruitment Partnership Ltd.[2]The claim for holiday pay (unauthorised deductions from wages / working time regulations) is dismissed on withdrawal by the claimant.[3]The claim for unfair dismissal is dismissed because the claimant did not have two years’ continuous service at the effective date of termination.[4]The claim for wrongful dismissal (breach of contract) is dismissed because it was presented out of time and the Tribunal does not have jurisdiction to hear the claim.REASONS
[1]This case was heard on 23 October 2023 and oral judgment handed down on that date. The Tribunal’s Judgment was provided to the Tribunal Office on the same day. Unfortunately, that Judgment was not sent to the parties until 13 December 2023. A request for written reasons was received from the claimant on 29 December 2023. Again there was some further delay before the request for written reasons was forwarded to me on 26 January 2024.[2]The claimant’s request was received by the Tribunal two days after the 14 day time limit for requesting written reasons. However, given that this period included two Bank Holidays (Christmas Day and Boxing Day) I am satisfied that it is appropriate to accept the request for written reasons. Procedural Issues[3]On 16 October 2023 the claimant sent a request to postpone the hearing to the Tribunal. The request was made on the basis of anticipated technical Case No. 3302663/2023 2 difficulties with attending a video hearing in that the claimant would not have access to mobile data. The claimant had not copied the respondent into this request and the Tribunal replied informing him that he should do so. No further postponement application was received and this application was not dealt with by the Tribunal because it did not comply with Rule 92 (requirement for correspondence with the Tribunal to be copied to other parties). The claimant submitted some further information regarding his claim on 19 October 2023.[4]The claimant had some issues with joining the hearing on the morning but was able to join by video and the hearing started at 10.40am. He confirmed that he was able to proceed with the hearing, joining using a friend’s laptop and wifi connection, and did not seek a further postponement.[5]It was apparent from the documents filed that English may not be the claimant’s first language. However, he was able to communicate clearly throughout the hearing. From the outset the claimant’s spoken English was good, such that I did not consider that it was necessary to explore with him whether he required an interpreter. I regularly checked he had understood what was being said and he responded fully and appropriately to all questions that were asked. He readily confirmed understanding when this was asked of him. He was able to articulate his case clearly.[6]On the ET1 claim form, the claimant named Pertemps Recruitment Agency as the respondent. On the ET3 response form, the respondent identified the correct legal entity as Pertemps Recruitment Partnership Ltd. On 23 August 2023 the Tribunal wrote to the claimant requesting his comments regarding the respondent’s identity. He did not reply to this request.[7]At the outset of the hearing, the claimant confirmed that he agreed to the change of name of the respondent.[8]The respondent prepared a bundle of documents for use at the hearing. This was sent to the claimant in advance of the hearing. The claimant confirmed to me that he had that bundle of documents in front of him and that he was able to look at it during the hearing.[9]The claimant submitted a further document to the Tribunal and the respondent on 19 October 2023. The respondent did not object to this document being admitted in evidence and I did so. Substantive Issues[10]At the outset of the hearing I identified the issues with the parties.[11]I explored with the claimant his claim for holiday pay. He confirmed that he had received all the holiday pay he was due at the termination of his employment and therefore this claim was dismissed on withdrawal. There were no other deductions from wages identified. Case No. 3302663/2023 3[12]The claimant confirmed that his claim is for unfair dismissal. He also asserted that his employment was continuing. On exploration with the claimant, it seemed that this was because he considered that he had been unfairly dismissed, and therefore his employment was, in his view, still ongoing.[13]The claimant clearly confirmed that he agreed that his start date was 17 March 2021 and that the earlier date of 20 September 2020 given on his claim form was an error.[14]The respondent asserted that the claimant resigned on 31 October 2022. The claimant denied this. If he was either dismissed or resigned on 31 October 2022, he would not have been employed for a period of two years, which is required in order to bring a claim for unfair dismissal. If he was still employed, he also would not be able to bring a claim for unfair dismissal.[15]The claim was presented on 20 March 2023. Early Conciliation started on 8 March 2023 and the Early Conciliation Certificate was issued on 16 March 2023. The respondent submits that the claim is therefore out of time, as it was presented more than three months (plus Early Conciliation extension) after the effective date of termination of employment.[16]Therefore it was agreed that I would deal with the date of the effective date of termination of the claimant’s employment, and the reasons for the late presentation of the claim, as a preliminary issue. If the claimant did not have sufficient service to bring a claim for unfair dismissal, or if the claim was presented out of time, the claim would be dismissed.Evidence
[17]I considered the bundle and late evidence provided by the claimant. The bundle comprised 88 pages and page references in bold refer to documents contained in that bundle.[18]I heard oral evidence from the claimant. The claimant had not provided a witness statement but his position was set out in his claim form and the document he submitted on 19 October 2023. Miss Bahia had no objection to him giving oral evidence on that basis. I was satisfied that he understood each of the questions that were put to him, and he gave full and coherent answers.[19]Ms Gintare Lebedevaite gave evidence on behalf of the respondent. She has provided a witness statement at 30-32. The claimant was able to ask her coherent questions which she was able to respond to. Background – agreed facts[20]The claimant’s employment started on 17 March 2021. He had a period of absence for 6 weeks during August and September 2022 (25). This was due to surgery on his head, as the claimant told me in oral evidence. On 16 September 2022 the respondent made a referral to Occupational Health because the claimant had missed a total of 35 shifts in a 9 month period including 10 absences for sickness and without leave in a one month period. Case No. 3302663/2023 4 The claimant returned to work on 22 September 2022. An Occupational Health report was received on 10 October 2022 confirming that the claimant’s absences from work appeared to be due to self-limiting conditions and he was fit to work. The claimant did not attend work after 22 September 2022 until 12 October 2022.[21]On 12 October 2022 the claimant attended a return to work meeting and was told in that meeting that he would be invited to a disciplinary meeting due to his poor attendance and performance at work. The respondent alleges that the claimant was failing to meet targets set by their client (Tesco). The respondent claims that the claimant resigned during this meeting. In his written documents, the claimant denies this. Oral evidence[22]I heard evidence from the claimant first. He took the affirmation and confirmed his identity. In response to questions from me he confirmed that his case was as set out in his claim form and the further document he had submitted. I explained to the claimant the statutory time limit for presenting a claim and asked why he had presented the claim when he did. He told me that in the first place he was attempting to resolve the issues with the respondent. He had raised a complaint twice via email but did not receive a response until January 2023. Between January to March he was awaiting assistance from ACAS, who told him that they could not assist him any further. Ultimately he felt that there was no way of resolving the dispute because the respondent had accused him of lying.[23]Mr Almeida said that since he had been fit to return to work in September 2022 after a period of sickness absence he had only be assigned one day of work, on 12 October 2022.[24]In response to questions from the respondent’s representative, Mr Almeida accepted that on 12 October 2022 he attended a meeting with Ms Lebedevaite. He said that at the start of the meeting he had asked her to provide him with extra work but she refused. Ms Lebedevaite raised some performance issues with him. He accepted that he signed a request to terminate his contract and for his P45 to be provided (73). On this form he has noted under comments, ‘leaving country’. In his oral evidence, Mr Almeida denied that he was intending to leave the country.[25]The claimant confirmed that during the meeting on 12 October 2022 he had requested additional hours. When Ms Lebedevaite told him that there were no more hours available and that the respondent intended to commence a disciplinary process, he told her that in that case he wanted to end his employment.[26]Ms Lebedevaite gave oral evidence on oath. She confirmed her identity and confirmed the contents of her witness statement. Mr Almeida asked her some questions. He asked her about targets for work completion which had been lowered to 85% from 100%. Ms Lebedevaite’s evidence was that even though these had been lowered for everybody, the claimant was still failing to Case No. 3302663/2023 5 achieve that target, following three opportunities to improve. The claimant asked why more hours were not provided to him when he requested. Ms Lebedevaite stated that there simply weren’t any more hours available at the time (the respondent is a recruitment agency and the client in question at the time was Tesco). Tesco would provide hours to the respondent and the respondent would divide work evenly. At the time everyone had the opportunity to work one day per week.[27]Having heard the evidence, the respondent had no further submissions to make on the preliminary issues other than to submit that the claimant had less than two years’ service and the claim was presented out of time.[28]I explored the claimant’s position with him. He confirmed that he accepted that his employment ended less than two years after the date he started. He confirmed that he understood that this would mean that I could not hear the claim. However, he invited me to deal with it anyway because he felt that the respondent had not acted logically by allowing Tesco to dictate the hours and targets. He declined to withdraw the claim for unfair dismissal and requested that I deal with it in a judgment.Relevant Law
[29]Section 94 Employment Rights Act 1996 (ERA 1996) provides: ‘(1) An employee has the right not to be unfairly dismissed by his employer.’[30]Section 108 ERA 1996 provides: ‘(1) 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.’[31]Section 111 ERA 1996 provides: ‘(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) […], an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal—(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.’[32]Article 7 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623 provides: Case No. 3302663/2023 6 ‘[…] an employment tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented-(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or […]’(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.[33]The effect of the above, in plain English, is that a Tribunal may not hear a claim for unfair dismissal unless the employee has been employed for at least two years AND the claim was brought within three months of the date of his dismissal (unless the tribunal considers that it was not reasonably practicable to bring the claim within three months, in which case it must consider that it was brought within a reasonable further period).[34]In a claim for breach of contract (including a claim for notice pay), the same time limit applies but there is no need for the employee to have been employed for two years.[35]The claimant clarified at the outset of the hearing that he does not bring a claim for holiday pay as indicated at 7 and this was paid at the end of his employment. The claim for holiday pay / arrears of pay is dismissed on withdrawal by the claimant.[36]The claimant confirmed at the outset of the hearing that his employment commenced on 17 March 2021 as stated by the respondent. He confirmed that the date of 20 September 2020 which he inserted on his claim form was incorrect. The question therefore is what was the effective date of termination of his employment?[37]A contract of employment can be terminated by either party – the employer or the employee. The claimant accepts that in a meeting on 12 October 2022 he signed a request to terminate his contract and be provided with his P45, stating that the last day he wished to be at work was 31 October 2022. I have seen this document in the bundle at 73. In oral evidence at the hearing the claimant accepted that he signed this and that he ended his employment. He says that this was for various reasons including because the respondent would not give him extra shifts when he requested, imposed unreasonable performance targets on him, and was intending to instigate disciplinary procedures as a result of his attendance record, which he did not consider to be fair.[38]It seems to me therefore that the claimant’s intended claim is one of constructive unfair dismissal. He did however resign, with an effective date of termination of 31 October 2022. He would require two years’ continuous Case No. 3302663/2023 7 service to bring such a claim. His period of service was from 17 March 2021 to 31 October 2022. This is less than two years’ service.[39]The claimant therefore has insufficient continuous service to bring the claim and the Tribunal does not have jurisdiction to hear it. I am therefore unable to proceed to consider the fairness or otherwise of the termination of his employment and the claim is dismissed for lack of jurisdiction.[40]There appears to be a claim for wrongful dismissal (breach of contract – notice pay) on the face of the claim as well, as this box has been ticked by the claimant (7). However, the claimant resigned on notice so I do not see how this could succeed. In any event, the claim was presented out of time – more than three months after the effective date of termination. There is no evidence that it was not reasonably practicable to bring the claim within that time. It is settled law that the fact that the claimant was in correspondence with the employer does not make it not reasonably practicable to bring a claim. Having heard the claimant’s evidence there is no other reason why he couldn’t have brought the claim in time. The claim for notice pay (wrongful dismissal / breach of contract) is dismissed because it was presented out of time.