E Mooney v Mattishall Sports and Social Club: 3306461/2024
EMPLOYMENT TRIBUNALS
Case No 3306461/2024
Between
E MooneyClaimantMattishall Sports and Social ClubRespondent
Before
Employment Judge TaftDate 20 August 2025
JUDGMENT
[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[2]When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars. There are no exceptional circumstances that make an award of an amount equal to two weeks’ gross pay unjust or inequitable. It is not just and equitable to make an award of an amount equal to four weeks’ gross pay.[3]The parties agree that the total sum payable to the claimant by the respondent in respect of both the claim for unfair dismissal and for the breach of the duty to provide written particulars is £2931.75. Approved by: JUDGMENT having been sent to the parties on 26 August 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The Claimant brings a claim of unfair dismissal. The Respondent is a Social Club with a bar run by a committee of volunteers. It is agreed that the Claimant began working for the Respondent on 1 February 2022 and was dismissed on 29 February 2024. It is also agreed that she was initially working as Bar Staff but that from 1 August 2023 she was promoted to Bar Steward.[2]First the Tribunal must determine whether the Claimant was an employee and if so, whether she had at least two years’ continuous employment. Without that there is no right to claim unfair dismissal. The Respondent agrees that the Claimant was an employee when she was the Bar Steward from August 2023 to February 2024 but disputes that she was an employee before that, when she was Bar Staff.[3]The Claimant’s case is that she was initially employed on a part time contract with guaranteed hours of 21 hours per month. The Respondent’s case is that she was on a zero hour contract and offered shifts as a last resort if committee members couldn’t cover them. They accept that there was the requisite control and personal service for employee status but deny that there was mutuality of obligation. The Respondent also points to gaps between shifts that they say break continuity of service, even if she was an employee, and so she does not have two years’ continuous service.[4]If I find that the Claimant was an employee, I must then consider the reason for the dismissal. The Respondent asserts that the reason was redundancy. They say there was a reduced need for the work of Bar Steward because volunteers had taken over the Claimant’s responsibilities during her sick leave and intended to continue that arrangement.[5]If I find that redundancy was the reason for dismissal, I must then consider whether it was reasonable to dismiss for that reason, which involves considering whether there was a fair procedure and, in particular, consultation.[6]If I find that there was an unfair dismissal, I must then consider compensation and that includes considering whether or not it was likely that the Claimant would have been dismissed if a fair procedure had been carried out. This is often known as a Polkey deduction after the case in which the principle was first discussed.[7]If I do find that there was an unfair dismissal, whether or not I award any compensation, I must consider whether there was a breach of the obligation in Section 1 of the Employment Rights Act 1996 (“ERA”) to provide written particulars, or Section 4 of the ERA to provide written particulars of a change in terms, by the date on which these proceedings begun. The Law Unfair Dismissal
The Law
[8]The right to claim unfair dismissal is contained in s.94 of the ERA: an employee has the right not to be unfairly dismissed by his employer.[9]Employee is defined in s.230 of the ERA: an individual who has entered into or works under a contract of employment.[10]What is a contract of employment has been the subject of a great deal of case law. The leading case is Ready Mixed Concrete v Minister of Pensions and National Insurance [1968] 2 QB 497. In that case it was said that a contract of employment exists if three conditions are fulfilled: 10.1. Personal service; 10.2. Control; and 10.3. That the other provisions of the contract are consistent with it being a contract of employment.[11]A contract of employment must include an obligation on the employer to provide work and an obligation on the employee to do the work. That is what is known as mutuality of obligation; this is said to be an irreducible minimum, the absolute basic building block of a contract of employment.[12]In Carmichael v National Power [1999] ICR 1226, the House of Lords held that casual employees, or zero hour employees as they are now more commonly known, are not employees if this obligation does not exist.[13]S.108 of the ERA confirms that s.94, i.e. the right to claim unfair dismissal does not apply to the dismissal of an employee unless they have been continuously employed for a period of not less than two years ending with the effective date of termination, i.e. the date on which the dismissal took effect.[14]S.210 considers continuous service. S.210(4) confirms that a week that does not count in computing the length of continuous service breaks continuity of employment. Subsection (5) confirms that a person’s employment shall, unless the contrary is shown, be presumed to be continuous. In other words, the Respondent has to show that there has been a break in continuity; the Claimant does not have to show that there is continuity.[15]S.212 confirms that any week during the whole or part of which an employee’s relations with their employer are governed by a contract of employment counts in computing the employee's period of employment. A week is defined in s.235(1) as a week ending with a Saturday, so beginning on a Sunday.[16]S.98 of the ERA governs what is and is not an unfair dismissal. Subsection (1) confirms that it is for the employer to show the reason for the dismissal and either that it is a reason falling within subsection (2) or some other substantial reason of a kind to justify the dismissal. Redundancy is one of the reasons falling within subsection (2).[17]Redundancy is defined in s.139. Insofar as it is relevant to this case, a dismissal is by reason of redundancy if it is wholly or mainly attributable to the fact that the requirements of the business for an employee is to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.[18]Once the reason for dismissal has been identified, if that is a potentially fair reason, that is not the end of matter because subsection (4) confirms that the determination of whether the dismissal is fair or unfair depends on whether 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 should be determined in accordance with the equity and the substantial merits of the case.[19]The leading case in respect of redundancy dismissals is Polkey v AE Dayton Services Limited [1988] ICR 142. In that case, the House of Lords said that in a case of redundancy the employer will not normally act reasonably unless he warns and consults any employees affected, or their representative, adopts a fair basis on which to select for redundancy and takes such steps as may be reasonable to avoid or minimise redundancy by redeployment within its own organisation.[20]In Rowell v Hubbard Group Services Ltd [1995] IRLR 195, the Employment Appeal Tribunal said that comments in R v British Coal Corporation [1994] IRLR 72 were of assistance to employers when they have to consult with their staff in a context of redundancy. Whilst British Coal Corporation had been about collective consultation, the EAT said that the comments were nevertheless helpful in considering what is a fair individual consultation.[21]One of the comments that was said to be helpful was that consultation involved giving the person consulted a fair and proper opportunity to understand fully the matters about which they are being consulted and to express their view on those subjects, with the consultor thereafter considering those views properly and genuinely. Written particulars[22]Section 48 of the Employment Act 2002 applies to proceedings relating to a claim by a worker under any of the jurisdictions in Schedule 5 of that Act, which includes unfair dismissal. Subsections (2) and (3) are in near identical wording. Subsection (2) governs where the Employment Tribunal makes a finding in relation to a claim in Schedule 5 but does not make an award of compensation. Subsection (3) governs a case where there is an award of compensation. In both cases subsection (b) goes on to say that where when the proceedings are begun the employer was in breach of his duty to the worker either under s.1 or s.4 of the ERA, the Tribunal must increase the award by the minimum amount and may, if it considers it just and equitable, increase the award by the higher amount. The minimum amount and the higher amount are listed in subsection (4) as two weeks’ pay and four weeks’ pay respectively. There is an exception in subsection (5) that the duty does not apply if there are exceptional circumstances which would make an award or increase unjust or inequitable.[23]Section 1 ERA confirms that when a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment. Subsections (3) and (4) set out the particulars that must be contained in that written statement.[24]Section 4 ERA confirms that if there is a change in any of the matters that are required by s.1, the employer must give a written statement containing particulars of that change. Evidence[25]I heard evidence from the Claimant, and for the Respondent from Alan Evans, from Michael Brown, from Marc Laytham and Sim Saunders. There was a Bundle of 478 pages, which contained a letter from Stephanie Groom, later known as Hood, the Bar Steward employed by the Respondent before the Claimant. I have given very little weight to that letter because it did not contain a statement of truth and because Ms Groom was not present to give evidence and swear that she would give true evidence before this Tribunal.[26]Mr Brown was not involved in engaging the Claimant and was not involved in the redundancy. His evidence does not assist me in making my findings.[27]Sim Saunders’ evidence was only tangentially relevant to the issues I have to decide and was not challenged by the Claimant.
Findings of Fact
[28]The Respondent Social Club relies heavily on volunteers, but it also pays some staff to work in the bar. A Bar Steward had supervisory responsibility for the bar: supervising Bar Staff, drawing up rotas, dealing with Health and Safety and managing stock, amongst other responsibilities. The Steward had no involvement with staff contracts because this was dealt with by the Club Chairman on behalf of the Committee.[29]At the time of the Claimant’s recruitment in February 2022, the Club Chairman was Alan Evans. There was a conflict of evidence between Mr Evans and the Claimant over the circumstances of her recruitment and the hours she worked in the first four months of her engagement, which was whilst he was the Chairman and about which he could give direct evidence. What was agreed between Mr Evans and the Claimant was that she was not given a written statement of particulars when she was recruited.[30]He said that notices were put up around the Bar asking for help from Club Members, to which the Claimant responded but indicated that she “needed paying”. This is inconsistent with what we see in the WhatsApp messages, which include an advert to which the Claimant responds, asking Ms Groom if that was her advertising for staff.[31]Mr Evans said that whilst Ms Groom communicated with the Claimant over WhatsApp about the role and hours, whatever she said was not relevant because he had to approve it. He said that the arrangement was that the Claimant would be offered hours only when the Respondent could not cover the Bar with volunteers and that she was used as a last resort.[32]We see from the payslips that the Claimant was working 25 – 26 hours per month in the first four months of her engagement: a remarkably consistent number of hours. That then went up significantly in June but that is consistent with WhatsApp messages suggesting that the Claimant would be offered more hours whilst Ms Groom was on holiday. This is inconsistent with what Mr Evans says about the Claimant being used as a last resort.[33]We also see in the WhatsApp messages reference to the Claimant getting 21 hours. A message was sent on 30 January 2022, which talks about changes to the February rota made by the Committee. It says that the Claimant will “still get 21 hours”. This is consistent with what the Claimant says were the terms on which she was engaged. Also consistent is the fact that she worked at least 21 hours per month throughout 2022 and 2023.[34]Where their evidence conflicts, I prefer the evidence of the Claimant to that of Alan Evans because the Claimant’s account is more consistent with the pattern of work evident from the documents prepared by the Respondent, i.e. the spreadsheet of hours and payslips, and because Mr Evans’ account of how the Claimant was recruited is inconsistent with contemporaneous WhatsApp messages.[35]I find as a fact that the Claimant was recruited via an advertisement for part time Bar Staff. It was agreed that she would work a minimum of 21 hours per month. Rotas were set monthly, approved or amended by the Committee, and communicated to the Claimant. If the Claimant could not work a shift, it was her responsibility to find cover for that shift; she could not send in a substitute but would have to find cover from someone else who worked for the Respondent. She communicated with the Respondent in between her shifts, not only about the shifts she would be working but what might be described as handovers, telling the Bar Steward what had happened on her shift and receiving instruction from the Steward as to what she needed to do when she was next at work.[36]There are breaks of more than a week between the Claimant’s shifts as Bar Staff in 2022 and 2023. The Claimant has explained that she took a week’s holiday in June 2023 and a day in November 2022 but could not be sure if there were any other holidays. Neither party has provided details of holidays or any other absence of the Claimant during the period she worked as Bar Staff. I cannot therefore make any findings as to the reasons why there were breaks between some shifts of more than a week during this period.[37]Steph Groom left the Respondent at the end of July 2023. Her role was offered to the Claimant, which the Claimant accepted on 2 July 2023. As part of a handover, Ms Groom wrote out a list of her duties, which she provided to Marc Laytham (who had recently become Club Chairman).[38]I find that there was no break between the Claimant’s work as Bar Staff and starting work as Bar Steward in August 2023. Although the schedule of hours provided by the Respondent begins only on 2 August 2023, the Claimant spent 1 August 2023 getting her Licence so the Club could sell alcohol. That was work for the Respondent. Prior to that she was receiving training on various matters from Ms Groom between the meeting on 2 July 2023 in which it was agreed she would take the role and Ms Groom leaving on 31 July 2023. Again, this is not shown on the spreadsheet, but I find as a fact that this was work for the Respondent. There is therefore no break of more than a week at this time.[39]Mr Laytham confirmed that the Claimant was not given a statement of particulars of employment when she took on the role of Bar Steward and again this is agreed by the Claimant.[40]Over the summer of 2023, the Claimant was struggling with the demands of the new role and particularly hours expected of her by the Respondent. A job share with Sim Saunders was proposed. In mid-December, the Claimant’s doctor recommended reduced hours. A meeting took place on 18 December in which various options to reduce hours were discussed, including a job share, reducing the Claimant’s hours overall, or the Claimant returning to work as Bar Staff.[41]The Claimant was then signed off sick from 21 December 2023 and did not return before her dismissal. During the Claimant’s sick leave, the Committee took responsibility for all of the aspects of the Claimant’s role that had been set out in the list of duties prepared by Steph Groom. The Committee were all volunteers.[42]The Respondent sent the Claimant a draft contract on either 8 or 9 January 2024. The Claimant sought advice from her Union, who responded on 20 February 2024 with proposed amendments to that contract. That draft contract contains most of the particulars required by s.1 of the ERA. They are contained in Schedule 1 of the contract, which appears at page 73 of the Bundle. The contract does not contain all of the particulars required by subsection (4) and in particular does not contain particulars of training entitlement or training required set out in subsections (4)(l), (4)(m) and (4)(n).[43]At a Committee meeting in the third week of January 2024, the Committee noted that they were able to fulfill the duties carried out by the Bar Steward with volunteers and resolved to find out if they could make the role redundant and if so, how to go about that. Marc Laytham had no experience in employing people but undertook to make enquiries with ACAS.[44]At the Committee meeting on 20 February 2024, the Committee voted to make the role of Bar Steward redundant. Mr Laytham wrote to the Claimant on 23 February 2024. The letter informs her that the Committee will take over the Bar Steward role and that as a result they must make her position redundant. The letter goes on to invite the Claimant to a meeting, which eventually took place on 29 February 2024.[45]The Respondent’s notes of that meeting are at page 47 of the Bundle. The first paragraph begins, “This meeting was informing Emma Mooney that her job was no longer available as we no longer needed the Bar Steward and so we were making her redundant.”[46]There is a dispute between the Claimant and Mr Laytham as to what was said at that meeting about alternatives to redundancy. Mr Laytham says that the Club offered the Claimant the opportunity to return to her position as Bar Staff. The Claimant says he did not, though her evidence on this was confused, perhaps due to her and Mr Laytham being at crossed purposes when he was asking this question. She went on, however, to say that she would not have been able to accept such an offer because this would not have been enough for her to live on after she had given up other part time work when she took on the role of Bar Steward.[47]On this point I prefer the evidence of Mr Laytham: he was clear about this but the Claimant was not. I find that the offer was made and that the Claimant refused that offer because she did not consider that the alternative employment was suitable for her. This was a reasonable position for her to take given her change in circumstances since she carried out the Bar Staff role. Conclusions Employee Status
Conclusions
[48]There is no written contract or statement of particulars regarding the Claimant’s work as Bar Staff and to that extent the case of Autoclenz Limited v Belcher [2011] UKSC 41 relied upon by the Claimant is not relevant in determining whether or not she was an employee between February 2022 and July 2023.[49]The Claimant also relies on Nethermere (St Neots) Limited v Gardener [1984] ICR 612 in which the Court of Appeal held that over time a stable arrangement crystalised into an implied contract of service with the irreducible minimum of obligation on both sides. In this case, to have two years’ continuous service as an employee, this arrangement would need to have crystalised in February 2022, i.e. within the first month of the engagement.[50]As a reminder, the three crucial elements of employee status are control, personal service and that the contract has sufficient mutuality of obligation so as to be consistent with a contract of employment. The Respondent agrees that there was control and personal service: the dispute is whether or not there was mutuality of obligation because the Respondent says that there was a zero hour contract and so no obligation to provide the Claimant with work, and that the Claimant had the right to turn down shifts offered to her.[51]I have preferred the evidence of the Claimant to that of Alan Evans when it comes to the terms on which she was engaged. I have found that she responded to an advertisement asking for part time Bar Staff and that the Respondent agreed to provide her with 21 hours per month. I have found that once she was sent the finalised rota approved by the Committee, she had to do that work or arrange her own cover amongst the Bar Staff or those Committee Members who volunteered their time. Therefore there was mutuality of obligation: the Respondent had an obligation to provide at least 21 hours work and once the rota was confirmed the Claimant had an obligation to work that shift or find cover from within the Respondent’s staff or volunteers.[52]I therefore find that the Claimant was an employee in February 2022. Continuous Service[53]I now go on to consider continuity: whether there were any breaks in continuity between February 2022 and February 2024.[54]There were certainly periods of more than a week between shifts between February 2022 and July 2023. The Claimant could explain some of those breaks as being holiday but did not have the information available to explain all of them. Nevertheless, the whole period of February 2022 to February 2024 was governed by a contract of employment. The Claimant’s employment did not end at the end of a shift and start again at the beginning of the next shift. Whilst Bar Staff, she was in regular contact with her Manager over what might be described as handover matters. At no stage was the contract ever terminated.[55]After July 2023, there were no breaks until she became sick and again, the contract did not end at that time.[56]All of the weeks between February 2022 and February 2024 count in computing continuous service, which amounted to more than two years. The Claimant has the right to claim unfair dismissal. Unfair Dismissal[57]The Respondent says that the reason for the dismissal was redundancy. They say that by February 2024 there was a reduced need for employees to carry out work of a particular kind because the tasks carried out by the Bar Steward, listed at page 145 of the Bundle, were now being carried out by Committee volunteers.[58]The Claimant relies on Church v West Lancashire NHS Trust [1998] IRLR 492 as authority for the position that a bumped employee is not redundant within the meaning of s.139. The Claimant was not bumped by another employee but by volunteers. There was a reduced need for employees - as opposed to volunteers - to carry out that work.[59]The Claimant’s representative says that he could not find any authority on whether a redundancy situation exists if there is a reduced need for employees because their work has been replaced by volunteers. Likewise, I could not. Nevertheless, in Noble v House of Fraser Stores [1984] EAT 686/84, the Employment Appeal Tribunal confirmed that if an employer chooses to engage outside contractors instead of employees to do work of a particular kind, that falls within the definition of redundancy. By analogy the same would apply where an employer chooses to use volunteers. It makes no difference whether or not the work is not required by employees any longer because outside contractors do it or because volunteers do it - provided the work is not being done by another employee of the Respondent, the definition of redundancy is met.[60]The Respondent has therefore discharged its burden to show that the reason for dismissal was redundancy.[61]I now go on to consider s.98(4) and whether the Respondent acted reasonably or unreasonably in treating that reason as a sufficient reason. I take into account the fact that the Respondent is a very small employer without significant administrative resources.[62]The Claimant says that I should find that the failure to pool her with Bar Staff and carry out a selection from a wider pool is unfair. The work taken on by the Committee was, however, the duties of the Bar Steward. The Claimant was the only Bar Steward. In those circumstances it was reasonable to identify a pool of one: the only person carrying out the role whose duties had been allocated to the Committee. Once there was a pool of one, there was no need to carry out a selection process: the Claimant was the only person at risk of redundancy.[63]There was, however, still a duty to warn the Claimant that she was at risk of redundancy and then to consult with her over ways of potentially avoiding that. There was no consultation with the Claimant before she was informed her position was redundant in the letter of 23 February 2024. The meeting in December 2023 relied upon by the Respondent was before the Claimant went off sick and the volunteers took responsibility for her tasks, identifying the risk of redundancy. It cannot have been a meeting to consult with the Claimant about ways of avoiding the redundancy, which had not yet been identified. It is an impossibility. In any event, the Claimant had not at that stage been informed that she was at risk of redundancy.[64]The meeting of 29 February 2024 was said to be to inform the Claimant that her job was no longer available and that the Club was making her redundant. There was no discussion of ways of avoiding the redundancy other than to offer her an alternative role, which she reasonably refused because it was no longer suitable for her.[65]Even taking into account the size and limited administrative resources of the Respondent, this fell way below the expectations of a reasonable consultation. This was not a case where the consultation was futile - the Respondent has not suggested it was. The Claimant was not given any opportunity to make comment on the proposal to make the role of Bar Steward redundant. The decision was made before the Respondent met with her and when the meeting did take place, this was to inform the Claimant that the role was being made redundant, not to consult with her about it.[66]The Respondent did offer the Claimant an appeal. The fact that they did and the language of this offer does not mean they accept she was not redundant: it was an attempt to follow a fair procedure to have the decision considered again.[67]Nevertheless, it is difficult to see how any views expressed by the Claimant in a consultation meeting would have changed the Respondent’s decision that the role of Bar Steward was redundant. Committee volunteers were carrying out the functions and had agreed that they could continue to do that. The Claimant was offered the alternative role of Bar Staff but refused. There was no realistic way of avoiding redundancy in these circumstances.[68]I therefore find that had a fair procedure been carried out, the Claimant would have been fairly dismissed by reason of redundancy within weeks of the letter of 23 February 2024. The meeting on 29 February would have been a first consultation meeting. A reasonable period of time before a second consultation meeting in a fair procedure would be seven days, by which the Claimant would likely have been dismissed.[69]I therefore find that the Claimant would have been fairly dismissed after a fair procedure by 7 March 2024. Statement of Particulars of Employment[70]I move onto the claim regarding the statement of particulars. There was some discussion as to whether or not the draft contract provided in January 2024 means that the Respondent was not in breach of s.1.[71]The difficulty is that s.1 provides that the statement must be provided by day one of employment. S.38 provides that the uplift is to be awarded if the Respondent is in breach when the proceedings were begun. The Claimant says that the Respondent was still in breach when the proceedings were begun because they had not provided the written particulars by day one of employment, or indeed when the change in terms was made in August 2023.[72]In Govdata v Denton [2019] ICR D8, the Employment Appeal Tribunal held that a Tribunal had made an error in making an award for failure to comply with s.1 because the Respondent was not in breach of its obligations under s.1 when the proceedings were begun. In that case, the Respondent had failed to provide a statement within two months of the commencement of the Claimant’s employment, which was the relevant period of time at that time, but it had complied with the duty prior to the Claimant commencing proceedings by submitting his claim form.[73]The fact that the date by which the written particulars are required is now day one of employment, rather than within two months, does not mean that I should not follow what the Appeal Tribunal said in Govdata v Denton. It follows, therefore, that the relevant date I need to consider is whether or not there was a written statement of particulars provided by 8 July 2024, when the Claimant submitted her claim form.[74]I must consider whether or not the document sent to the Claimant on 8 or 9 January 2024 was a statement of written particulars. It did not contain all of the particulars required because it did not contain the particulars required by subsections 4(l), 4(m) or 4(n). As at the date proceedings had begun, the Respondent was therefore in breach of s.1. I must therefore increase the award unless exceptional circumstances make an award unjust or inequitable. I do not consider that any such circumstances exist.[75]I must consider whether or not to increase the award by two weeks’ pay or if I consider it just and equitable to award four weeks’ pay. I do consider that an award of two weeks is appropriate in this case as there is not a wholesale failure: most of the particulars were provided albeit not at the start of the Claimant’s employment and not in full. Approved by: