Mr N D Marques and Mr E D S Cruz v MyFood365 Ltd and Ms P Xuan: 3311661/2024 and 3311662/2024
JUDGMENT
[1]The First Claimant’s claim for unfair dismissal succeeds.[2]The Second Claimant’s claim for unfair dismissal is dismissed.[3]The First and Second Claimants’ claims for wrongful dismissal succeed.[4]The First and Second Claimants’ claims under s.38 Employment Act 2002 succeed.[5]The First and Second Claimants’ claims of direct race and/or age discrimination are dismissed.[6]The First and Second Claimants’ claims of indirect race and/or age discrimination are dismissed on withdrawal.[7]The First and Second Claimants’ claims for a redundancy payment are dismissed on withdrawal.REASONS
[1]On 26 November 2024 the First Claimant (Mr Dias Marques) and the Second Claimant (Mr Erino Dos Santos Cruz) brought claims for unfair dismissal, race and/or age discrimination, for a redundancy payment and for notice pay. 1 of 6[2]The First Respondent is a company that carries on the business of being an oriental food store. The Second Respondent is the sole director of the First Respondent.[3]The First Claimant stated he had been employed by the Respondent as an assistant between 9 November 2015 and 9 July 2024, when he was summarily dismissed. He was then aged 43 yrs.[4]The Second Claimant stated he had been employed by the Respondent as an assistant between 1 September 2020 and 9 July 2024, when he was summarily dismissed. He was then aged 36 years.[5]Both Claimants are of East Timor nationality and are Portuguese citizens.[6]A notice of claim was sent to the Respondents on 5 December 2024 stating that a response must be received by the Tribunal office by 2 January 2025.[7]On 13 December 2024 the Respondents made an application for an extension of time to submit a response, which, on 24 January 2025 was refused by a Legal Officer on the grounds that the application did not state it had been copied to the Claimants.[8]On 21 February 2025, the Respondents’ representatives submitted a draft response and requested that it be accepted out of time.[9]On 18 August 2025 there was a Public Preliminary Hearing at which EJ Gumbiti-Zimuto ordered that:(i) The Respondents’ application for an extension of time to present a response was refused; and(ii) The Respondents were permitted to participate fully in any remedy hearing and, if appropriate, to give evidence in respect of remedy.[10]A liability hearing was listed for 9 February 2026, and the Claimants were directed to send witness statements to the Respondent (for information only) by 19 February 2026. The Claimants were required to prepare a liability hearing bundle.[11]A remedy hearing was listed for 23 March 2026 and the parties required to exchange witness statements by 19 February 2026. The Respondents were required to prepare the remedy hearing bundle.[12]The liability hearing listed for 9 February 2026 was subsequently postponed with an order that liability would instead be addressed at the remedy hearing listed for (today) 23 March 2026.[13]On 11 March 2026 the Second Respondent submitted a witness statement stating, amongst other things, that the Second Claimant had been employed from September 2019 until 28 July 2023 and had then commenced a second period of employment in February 2024 until his dismissal. Attached to the witness statement was a P45 in respect of the Second Claimant dated 28 July 2023 and the P60 for the year ended 5 April 2024 in respect of the Second Claimant showing he had been paid only £2,805.00 in respect of his current employment during that financial year. The documents were submitted for the 2 of 6 purpose of showing that the Second Claimant did not have two years of employment at the date of his dismissal in July 2024 and could not bring a claim for unfair dismissal.The Hearing
[14]At the outset of the hearing I clarified that it appeared to have been the intention of EJ Gumbiti-Zimuto that the Respondents would not be permitted to participate in the liability hearing but would be entitled to participate in any subsequent remedy hearing, and both the Claimants and the Respondents agreed that was also their understanding of the situation.[15]However, Mr Winnow then made an application that the Respondents be entitled to participate in the liability hearing to the extent of submitting the P45 and P60 attached to the Second Respondent’s witness statement, as well as a document that was a typed list of the different ethnicities of the First Respondent’s employees.[16]Mr Large made no objection to the P45 and the P60 being put into evidence but objected to the list of ethnicities. I accepted his submission and agreed that the list of itself, without being attested to by witness evidence, had no reliable probative value and should not be admitted into evidence. However, the P45 and the P60 were documents which went to a matter of jurisdiction, namely whether the Second Claimant had sufficient length of service to bring a claim of unfair dismissal.[17]At the hearing I heard evidence from both Claimants, who gave evidence through an Indonesian interpreter, and their support worker, Mr Jim Hewitt, MBE. I then heard submissions from Mr Large.[18]In essence the First Claimant contended that on 9 July 2024 he was summarily dismissed when he returned to work following extended annual leave to visit his family in East Timor and that no reason was given for his dismissal. The Second Claimant contended that he was also dismissed on 9 July 2024 and that no reason was given for his dismissal. The First Claimant alleged in his witness statement that they were replaced with 3-4 students of Chinese or oriental origin. Conclusions Unfair DismissalConclusions
[19]As regards the First Claimant he had been employed for approximately 9 years at the date of his dismissal and was summarily dismissed. In view of the fact that the Respondents were not permitted to submit a response (nor any evidence in respect of liability relevant to the First Claimant) no potentially fair reason for the dismissal within the meaning of s.98(2) Employment Rights Act 1996 (ERA) has been shown. Further, the evidence was that the First Claimant had been dismissed summarily without any disciplinary procedure being followed.[20]I therefore find that he was unfairly dismissed within the meaning of s. 98(4) ERA. 3 of 6[21]Whether the First Claimant would in any event have been dismissed even if a fair disciplinary procedure had been followed (see Polkey v AE Dayton Services Ltd [1987] ICR 142) and/or to what extent he may have contributed to his dismissal will have to be decided at the remedy stage when the Respondents will be entitled to submit witness evidence and participate fully in the hearing.[22]As regards the Second Claimant, the first question is whether he had 2 years continuous employment as at the date of his dismissal and is entitled to bring a claim of unfair dismissal.[23]His evidence was that he began working for the First Respondent on a part-time basis in September 2019 and began working on a full-time basis from 1 January 2020. He did not take any holiday in 2021 or 2022. In August 2023 he went to East Timor to get married and came back to the UK and worked again for the First Respondent from February 2024 until July 2024. He said that he remained employed by the First Respondent during that 6-month period; that he was given paid leave of 31 days and the rest of the period was given to him as unpaid leave.[24]Mr Large relied on s. 212(3)(c) ERA which provides that any week during which an employee is absent from work in circumstances such that “by arrangement or custom” he is to be regarded as continuing in the employment of the employer for any purpose counts in computing the employee’s period of employment. He stated that by arrangement or custom the Second Claimant was to be regarded as having continued in the First Respondent’s employment during the period of 6 months in question and that the P45 and P60 relied on by the Respondents must have been created after the Second Claimant’s dismissal in order to support the case that he didn’t have sufficient continuity of service.[25]I do not accept this submission.[26]The Second Claimant’s evidence was that he “told” the Second Respondent that he was going to East Timor to get married and that the Second Respondent “did not tell him he would not have a job when he came back”. I consider it more likely than not that when the Second Claimant returned to East Timor there was no clear arrangement between himself and the Second Respondent as to when, or even if, he would come back to the UK and certainly no clear arrangement that his employment with the First Respondent would continue in the meantime.[27]I note that the P45 was completed on 28 January 2024 (box 13), and while that date is some considerable time after the Second Claimant returned to East Timor in July 2023 it is well before his dismissal in July 2024 or any issue with regard to his employment had arisen. Further, it is consistent with the First Respondent realizing the need to regularize the situation in circumstances where the Second Claimant had returned to the UK and was wanting to recommence his employment. 4 of 6[28]I am therefore not satisfied the Second Claimant had been continuously employed by the First Respondent for two years as at the date of his dismissal and he therefore does not have the right to bring a claim for unfair dismissal. Wrongful Dismissal[29]I accept the evidence of the First and Second Claimant that they were dismissed without notice.[30]Further, on the limited evidence before me the First Respondent has not shown that their dismissals were in response to gross misconduct or some other fundamental breach of contract by them.[31]It follows that the claims of wrongful dismissal succeed. Race/Age Discrimination[32]The acts of dismissal are also relied on as being acts of direct discrimination on grounds of race and/or age within the meaning of s. 13 Equality Act 2010 (EqA) in that it is said the Second Respondent wished to replace the Claimants with young Chinese employees.[33]Mr Large relied on s.136(2) EqA which provides that if there are facts from which the court could conclude, in the absence of any other explanation, that a person (A) has contravened the provision concerned, the court must hold that the contravention occurred unless A shows otherwise.[34]In this case there are no such facts capable of reversing the burden of proof.[35]First, the First Claimant had been employed for approximately 9 years, and the Second Claimant had been employed and then re-employed by the First Respondent, which is inconsistent with the Respondents not wishing to employ persons of the Claimants’ race and/or age.[36]Secondly, the First Respondent continues to employ the First Claimant’s brother, although he is the same nationality as the First and Second Claimant and a man of approximately 40 years old.[37]Thirdly, the evidence of the First Claimant was that when he went to East Timor in May 2024, out of a workforce of 3 employees (in addition to the Second Respondent) two of them were from East Timor, namely the First Claimant’s brother and another individual, and a third employee, a cashier, was from China, while the evidence of the Second Claimant was that in July 2024, of the three employees then employed, one was from East Timor (the First Claimant’s brother), one was from Malaysia aged in his thirties and a third, a young cashier, was from China. Although the First Claimant said in his witness statement that after his dismissal, he walked past the store and noticed new employees of Chinese origin and of student age, in his evidence he said he saw only one new employee, a cashier, of fair complexion who he assumed to be of Chinese origin.[38]The evidence is therefore of the First Respondent employing a small group of employees from China, East Timor and Malaysia, all of different ages, and there is nothing to suggest the Claimants were dismissed because of their race and/or age. 5 of 6[39]The claim for direct race and/or age discrimination is therefore dismissed. Section 38 Employment Rights Act 2002[40]Neither the First nor the Second Claimant were given a statement of employment particulars within the meaning of s. 38 Employment Rights Act 2002 and since some of their complaints have succeeded, they are entitled to an award equal to two or four weeks’ pay. The appropriate amount will be determined at the remedy hearing. Remedy Hearing[41]Having given the parties the judgment above, a one-day remedy hearing by CVP was listed for 7 August 2026.[42]In preparation for that hearing the following orders were made:(i) Within 7 days after the parties receive the written judgment the Claimants must each provide the Respondents with:a. An updated schedule of loss; andb. Any documents they wish to be included in the bundle of documents for use at the remedy hearing.(ii) Within 28 days thereafter the Respondents must provide the Claimants with: a. an electronic copy of the bundle of documents for use at the remedy hearing; and b. any updated or further witness statement(s) on which they wish to rely.(iii) Within a further 21 days the Claimants must provide the Respondents with any further witness statements on which they wish to rely.[43]The parties are reminded that if they are able to agree a settlement themselves, they should inform the Tribunal at the earliest opportunity so that the listed remedy hearing can be vacated. Approved By: