Ms I Puslednik v Mr H Awad T/a Moda Cuts 5 Ladies: 3314821/2022
EMPLOYMENT TRIBUNALS
Case No 3314821/2022
Between
Ms I PuslednikClaimantMr Hafez Awad t/a Moda Cuts 5 LadiesRespondent
Before
Employment Judge Gumbiti-Zimuto
Members
Mr F Wright and Mrs C CarrIn person for claimantDate 26 February 2025
JUDGMENT
[1]The claimant’s complaint of disability discrimination is not well founded and is dismissed.[2]The claimant was dismissed. The claimant was entitled to 4 weeks notice.[3]The claimant was unfairly dismissed.
REASONS
[1]In a claim form presented on 11 December 2022 the claimant made complaints of unfair dismissal, wrongful dismissal and direct disability discrimination. The respondent denies the claimant’s complaint and contends that the claimant resigned her employment and was not dismissed, he denies discriminating against the claimant.[2]The claimant gave evidence in support of her own case and also relied on the evidence of Agata Blaszcyk-Nassar. The respondent gave evidence in support of his own case and also relied on the evidence of Edyta Skowron, Teodora Georgieva Grueva and Rafik Amrouche. All the witnesses produced statements which were taken as their evidence in chief, the respondent also relied on the written statement of Kayleigh Redington who did not attend to give evidence in person.[3]The issues to be decided in this case were considered at a preliminary hearing on 7 February 2024. (J) Page 1 of 10[4]The respondent is a hairdresser trading as Moda Cuts 5 Ladies Salon. The claimant was employed by the respondent as a hairdresser from about August 2018. Since about 2019 the respondent’s business partner has been Edyta Skowron. Both claimant and Edyta Skowron are Polish.[5]The claimant had a planned holiday in the second-half of September 2022. However the claimant's mother, suffering from cancer, required surgery and so the claimant changed her leave dates so that she could go to Poland to be with her mother. The claimant took leave from 8 September 2022 and went to Poland.[6]On 7 September 2022, the claimant was working together with a new employee, Teodora Grueva, when something happened between them. This has been described as an ‘altercation’ or a ‘disagreement’ at various times in the evidence. Edyta Skowron and Hafez Awad who were not working that day refer to the incident, respectively, as an altercation and a disagreement .[7]Teodora Grueva’s account of events on 7 September is that the claimant was critical of her when she was carrying out tasks such as sweeping the floor, welcoming customers and offering them tea or coffee. Teodora Grueva contends that the claimant was angry with her and told her that she was not a good hairdresser, that she couldn't understand why the boss decided to hire her and that if the claimant has to work with her she will quit. Teodora Grueva reported this to Edyta Skowron on 8 September 2022. Edyta Skowron’s response was to say of the claimant’s alleged behaviour, “maybe because of her problem with her mother's health she was more stressed out”.[8]The respondent refers to the incident on 7 September as being due to the claimant’s objection to her customers being asked whether they would like tea or coffee by Teodora Grueva.[9]The claimant denies that the incident on the 7 September occurred as alleged by the respondent and she refers to there being merely a conversation in which she spoke about being professional. The claimant stated in her evidence that the incident was not mentioned by her because she did not consider that it was related to her dismissal.[10]On 8 September the claimant travels to Poland. The following messages passed between the claimant and Edyta Skowron on that day. ES: hey I heard about your yesterday conversation with Dora we will talk when you come back from Poland. Have a good time (sent at 09:41) IP: you don't have to talk I can quit (sent at 10:31) IP: count my notice. That would be the best way (sent at 10:33) IP: I'll only come and collect my things (sent at 10:34) IP: and I'll give the key back to you (sent at 10:35) (J) Page 2 of 10[11]After this email exchange the claimant left a voice mail message for Edyta Skowron at 11:15. In the first message she set out her version of what happened on 7 September, she described Teodora’s conduct as unprofessional. At 11:57 the claimant left a further message in which she stated: “Text me only if you want me to come on Friday to collect my stuff or if you want me to be in the shop until 22nd of September, that’s will be exactly 2 weeks of the notes. Thats all”.[12]The claimant returned from Poland on Thursday 15 September 2022. The claimant states that she went to the salon on Friday 16 September when she was told by Edyta Skowron that there was no problem and she could work as normal on Monday. Although her evidence on this was not clear when questioned by the claimant, we understood Edyta Skowron’s position to be that when she said that the claimant could come to work on Monday it was with a view to the claimant working her notice period.[13]The claimant says that she was again in the salon on Saturday 17 September when she collected scissors to cut her son's hair.[14]The claimant states that she, later that day, called the respondent who told her “Edyta hates you and doesn't want to work with you”. The claimant states that she asked for “a month or at least two weeks to find a new jump”. The claimant says that a week later the respondent called her and told her to pick up her things not come back. The claimant states that the respondent promised to pay her notice but she was not to return to work. The claimant states that she later received “an e-mail with my dismissal notice, claiming I didn't show up for work.” The claimant says that this exchange took place on 17 September.[15]In one of her conversations with the respondent the claimant says that she was told by him that they could not rely on her because her mother was sick. When asked why this was not included in her witness statement the claimant described it as an oversight.[16]The respondent’s version of the events is that the claimant attended at the salon 17 September to collect her things and returned the keys without incident. (Then later in his statement the respondent says that on 17 September the claimant “was making derogatory gesture to customers by putting her middle finger up to them.”) We understand that the respondent was not at the salon on this day. The respondent’s evidence appeared to accept that he had a conversation with the claimant on 17 September. In his evidence the respondent said the following about that conversation: “I thought that the claimant had left by then, I thought it better not speak too much I just said how is your mother and good luck”[17]The respondent accepts that he spoke to the claimant after the 17 September but he could not remember the date, he says that the claimant asked him for a letter, we understood this to refer to a letter of reference, to say that she was working for the respondent and had left. The (J) Page 3 of 10 respondent says that it was on the 22 September that the claimant asked for her job back and it was then that she was advised that her job was no longer available and that her position had been filled. The respondent states that the claimant “returned on 30 September to collect other personal belongings from the salon”.[18]The claimant’s witness did not personally witness any of the specific events that we are concerned with, she did however witness other events and states that there were many times she had seen the claimant crying, that the claimant was bullied and made to feel unwanted.[19]The claimant denies that she resigned she is not claiming constructive dismissal.[20]The claimant’s case is that she was dismissed by the respondent in a telephone conversation on 17 September 2022 and that the reason for her dismissal was that the respondent was concerned that because her mother was ill with cancer, she would want to take regular and frequent periods of time off work to visit her in Poland.[21]The first question for us to determine is whether the claimant was dismissed.[22]The respondent accepts that the claimant’s mother is a disabled person.[23]Direct disability discrimination: An employer must not discriminate against an employee by dismissing her or subjecting her to any other detriment. An employer discriminates against an employee if because of a protected characteristic they treat the employee less favourably than they treat or would treat others. Where the employee seeks to compare his treatment with that of another employee there must be no material difference between the circumstances relating to each case.[24]If there are facts from which the employment tribunal could decide, in the absence of any other explanation that the employer contravened the provision concerned the employment tribunal must hold that the contravention occurred. However, this does not apply if the employer shows that it did not contravene the provision.[25]The claimant claims direct discrimination by association and relies on the alleged dismissal. Discrimination by association is a type of direct discrimination where a person is treated less favourably because of their connection with either someone who has a protected characteristic or a group of people who have a protected characteristic. The person does not have the protected characteristic but they are treated less favourably than others because of a protected characteristic of another person with whom they are associated, in this case the claimant’s mother.[26]If the claimant was dismissed, the Tribunal will then have to decide whether that was, “less favourable treatment”? Did the respondent treat (J) Page 4 of 10 the claimant less favourably than it treated or would have treated a hypothetical comparator: that is a person in exactly the same situation as the claimant, who had to visit her mother abroad, who was ill but who was not disabled?[27]If the claimant was treated less favourably, the Tribunal will then ask whether the reason for that difference in treatment was that her mother was disabled by reason of cancer?[28]Unfair dismissal: If the claimant was dismissed, what was the reason for dismissal and was it a potentially fair reason in accordance with Section 98(1) and (2) of the Employment Rights Act 1996?[29]If the reason for dismissal was a potentially fair reason, the Tribunal will then have to decide whether the decision to dismiss lay within the range of reasonable responses of a reasonable employer in accordance with the test of fairness set out at s.98(4) of the Employment Rights Act 1996.[30]Wrongful Dismissal: If the claimant was dismissed, there is no dispute that she was not given notice therefore the Tribunal must determine what period of notice she was entitled to.[31]The Tribunal has considered the guidance in Omar v Epping Forest District Citizens [2023] EAT 132, a case where the claimant had uttered words of resignation in anger before unsuccessfully seeking to retract them at a subsequent meeting. Which states that the Tribunal should apply an objective test to determine whether it would have appeared to a reasonable employer in all the circumstances that the claimant ‘really intended’ to resign. The following relevant matters appear to us to apply in this case.[32]A notice of resignation once given cannot unilaterally be retracted. The giver of the notice cannot change their mind unless the other party agrees.[33]Words of resignation, or words that potentially constitute words of resignation, must be construed objectively in all the circumstances of the case in accordance with normal rules of contractual interpretation. The subjective uncommunicated intention of the speaking party are not relevant; the subjective understanding of the recipient is relevant but not determinative.[34]What must be apparent to the reasonable bystander in the position of the recipient of the words is that:(i) the speaker used words that constitute words of immediate resignation or resignation (if the resignation is ‘on notice’) – it is not sufficient if the party merely expresses an intention to resign in future; and,(ii) the resignation was ‘seriously meant’, or ‘really intended’ or ‘conscious and rational’. The alternative formulations are equally valid. What they are all getting at is whether the speaker of the words appeared genuinely to intend to resign and also to be ‘in their right mind’ when doing so. (J) Page 5 of 10[35]In the vast majority of cases where words are used that objectively constitute words of resignation there will be no doubt that they were ‘really intended’ and the analysis will stop there.[36]The point in time at which the objective assessment must be carried out is the time at which the words are uttered. The question is whether the words reasonably appear to have been ‘really intended’ at the time they are said.[37]However, evidence as to what happened afterwards is admissible insofar as it is relevant and casts light, objectively, on whether the resignation was ‘really intended’ at the time.[38]Was the claimant dismissed? We have come to the conclusion that the claimant was dismissed.[39]The Tribunal consider that the claimant did use words which can be taken as words of resignation in her WhatsApp message of 8 September. However when considering all the relevant surrounding circumstances we do not consider that it was ‘seriously meant’, or ‘really intended’.[40]The claimant sent Edyta Skowron a message intended as a joke on 8 September. Edyta Skowron sent the claimant messages which have been deleted, there is an issue between the parties as to the nature of those messages. We considered that the claimant’s version of events more likely than the one given by Edyta Skowron, because if they were really just messages thanking the claimant for her a gift the claimant left we cannot understand why she would have considered it necessary to delete them because they were “inappropriate given the circumstances”.[41]The claimant sent Edyta Skowron a joking message at 8.29 on 8 September 2022. This was followed by three messages that were deleted. The deleted messages were followed by the messages sent at 09:41 which read: Hey, I heard about your yesterday conversation with Dora. We will talk when you come back from Poland. Have a good time.[42]The claimant states that the deleted messages were accusing her of things, the claimant states that the messages ad upset her a lot, she states that it was “something rude and completely unsupportive considering my situation.” The claimant’s voicemail messages sent on the 8 September (p155) also betray the claimant’s emotional state.[43]The Tribunal notes that the evidence of Teodora Grueva was that Edyta Skowron acknowledged that the claimant was having a stressful time. (J) Page 6 of 10[44]Around 12 September 2022, there was the following message exchange between the claimant and Edyta Skowron: (ES) Come Friday to take your things. You don’t need to work until 22 September, because we will pay you for these two weeks and we will give you notice OK (IP) You appreciate people a lot (IP) I didn’t abandon you when you were in difficult situation … but oh well (ES) Hello, I hope you have a good time in Poland ad your mum feels much better, Come to take your stuff on Saturday after work at 6:00 (IP) This is my worst trip (IP) I have other plans on Saturday (IP) Taking my stuff is 2 minutes. I will not bother anybody[45]On the 14 September 2022, while the claimant was still in Poland, the claimant sent the following message: Good evening. As you sacked me so quickly, please give me My notice of termination on Friday, so that I could produce it At Job centre There was a reply from Edyta Skowron Good Evening. I wasn’t the first who told you about the notice, you wrote it first. So why am I supposed to give you notice first? You should give it to me[46]There is a further undated exchange of messages which took place before 16 September 22 (p135) (IP) Get My notice ready for Friday. I work as a hairdresser not as an escort girl and I can see You only appreciate and respect ones like that (ES) Irenka, I didn’t give you notice. You can always come back and do your hours. If you decide to return, your rota with working hours wil b ready on Monday Have a nice evening There is no indication in this message that the claimant was only being offered the option to return to work out a notice period as Edyta Skowron said in evidence.[47]On 22 September 2022, the claimant send the message (J) Page 7 of 10 Hey, I’m sorry that if you wanted to get rid of me, you could’ve given me some notice time … and Not leave me suddenly without any means. I think I didn’t deserve it[48]The claimant’s WhatsApp messages at p120 of the bundle which appears to have been sent before 24 September 2022 makes clear that the claimant never meant to resign, in that message she states Maybe I overreacted, but this trip wasn’t planned and I was scared very much. You surprised with the deleted messages … you never do it I have I have never wanted to leave and that is why I came to talk.[49]We note that the claimant’s witness stated that the claimant had resigned before when she had seen the claimant crying. The claimant in her own evidence did not say that was the case and the respondents did not refer to it so we have not been able to attach any significance to that part of the evidence given by Agata Blaczyk-Nassar.[50]The Tribunal considers that taking all the circumstances into account that the claimant did not intend to really resign. When we consider the totality of the e-mail exchanges we come to the conclusion that the claimant did not seriously mean or really intend to resign her employment. At the time that the claimant sent an email containing her resignation she was upset and emotional because of her circumstances and overreacted to the email from Edyta Skowron.[51]We consider that the claimant wanted to continue work and that this should have been evident. Initially the respondent was saying that the claimant should return to work. Edyta Skowron stated that when she said that the claimant could return to work she meant that the claimant could work out notice without specifying a notice period. The respondent then decided that the claimant should not be permitted to return to work or to work out a notice period. The claimant asked for her job back and the respondent refused. At the time that the claimant asked for her job back we do not consider that the claimant had made a resignation that was seriously meant or really intended and we find that when the claimant was told that she could not return to work on the 17 September the claimant was dismissed.[52]The reason for the claimant’s dismissal is obscure. It is the view of the Tribunal that the respondent took advantage of a situation where the claimant had stated in WhatsApp messages what could be construed as a resignation when it was not seriously meant or really intended. At a time it was known the claimant was going through a stressful time due to her mother’s health. The Tribunal do not consider that there is any link to the claimant’s mother’s disability in the reason for dismissal. The Tribunal does not accept the claimant’s evidence that the respondent told her that (J) Page 8 of 10 she was being dismissed because of her mother’s illness. We note that such a comment is entirely absent in her witness statement and another reason, “Edyta hates you and does not want to work with you” was given in the witness statement.[53]The claimant has not produced any evidence of the treatment of an actual comparator or set out a basis for a conclusion that a hypothetical comparator would have been treated more favourably. The claimant’s complaint of direct disability discrimination is not well founded.[54]The claimant’s employment commenced in August 2018. While different dates were posited in the preliminary hearing both the claimant and respondent agree during the hearing that the claimant’s employment started in August 2018. The claimant’s employment came to an end on 17 September 2022. The claimant does not have a written contract of employment. The claimant is entitled to 4 weeks’ notice by virtue of section 86(1) ERA.[55]The respondent states that if the claimant was dismissed, the reason for her dismissal was some other substantial reason justifying dismissal, namely a breakdown in the relationship between the claimant and the respondent because the claimant’s conduct on 7 September created an environment not conducive to employment continuing. The Tribunal reject this as a reason that would have justified dismissal in this case.[56]The evidence about the incident on 7 September comes from Teodora Grueva, who was on the receiving end of the alleged conduct, and the claimant. Neither account as set out (see paragraphs 6 to 9 above) justifies termination of the claimant’s employment. The respondent states that had the claimant’s employment continued it would have been necessary to “investigate the disagreement on 7 September 2022”. Edyta Skowron had been provided with an account of the incident by Teodora Grueva and her response is set out by Teodora Grueva as follows: “Edyta told me that maybe because of her personal problem with her mother’s health she was more stressed out.”[57]An investigation of the incident on 7 September 2022 would not have revealed a situation justifying dismissal. There was no potentially fair reason for dismissal pursuant to section 98(1) ERA.[58]The conclusion of the tribunal is that(a) the claimant was dismissed,(b) the claimant’s complaint of disability discrimination is not well founded and is dismissed,(c) the claimant was unfairly dismissed, and(d) the claimant is entitled to 4 week notice period. Approved by: REMEDY JUDGMENT The respondent is ordered to pay to the claimant the sum of £2,565 comprising of the following: Breach of contract notice pay : £684.00 Basic award for unfair dismissal: £1,026.00 Compensatory award for unfair dismissal: £171.00[4]Award pursuant to Section 38 Employment Act 2002: £684.00 Award Approved by: