Ms L Porter v Duno Bars Ltd: 4103651/2023
JUDGMENT
The Judgment of the Employment Tribunal is that:(1) the claimant’s employment contract transferred to the respondent in terms of the Transfer of Undertakings (Protection of Employment) Regulations 2006;(2) the respondent unfairly dismissed the claimant on 26 May 2023; and(3) the respondent shall pay to the claimant: (a) a basic award of £8,662; (b) damages of £3,539 for failure to give notice of termination of employment; and (c) payment of £737.25for accrued but untaken holidays on termination of employment.REASONS
[1]The claim form was sent to the Tribunal on 6 July 2023. At a final hearing on 24 October 2024, attended by the claimant and her representative, Mr McLaughlin, at which point the claim was directed against The Vault Management Group Limited, Ms A Mcallister, and the respondent (none of whom was present or represented), Employment Judge Tinnion decided:a. By consent, to dismiss the claim against The Vault Management Group Limited, that company having been struck off the Register of Companies on 23 December 2023 and dissolved on 2 January 2024.b. The claimant having withdrawn her claim against Ms A Mcallister to dismiss that claim.c. To allow the claimant to make an application to amend the claim to set out the factual and legal basis of her claims against the respondent.[2]The amendment application was made and discussed at the resumed final hearing on 24 January 2025. It was recorded that the claimant’s claims against the respondent were put on the following basis: on 31 May 2023 (or some other date in 2023) the claimant’s employment contract transferred from her existing employer (The Vault Management Group Limited) to the respondent under TUPE 2006; on that date (or whatever date the TUPE transfer took effect) the respondent should have assumed responsibility for her employment and been in touch with her (the claimant having been on long term sick leave by this point) but did not; by that conduct (technically non conduct) the respondent dismissed the claimant; the respondent is legally liable for the claimant’s dismissal as well as the liabilities of the former employer which transferred to the respondent at the time of the TUPE transfer between them.[3]It was agreed as the amended statement of the case now sets out the claim against the respondent, the respondent should be given an opportunity to respond to that claim. Accordingly orders were issued for the Tribunal to send the documents (the ET1 and original statement of claim and paper apart; the amended statement of claim; the claimant’s productions for the hearing on 24 October 2024; the case management order dated 24 October 2024 and the case management order dated 24 January 2025) on the respondent.[4]On 27 January 2025 the Tribunal sent the documents to the respondent advising it required to lodge a response by completing the enclosed form response or by responding online on or before 24 February 2025. If a response was not received by then (unless an extension of time was agreed by an employment judge) the respondent would not be entitled to defend the claim.[5]No response was received. The respondent was however sent a notice of this final hearing for information.[6]At the final hearing the claimant was represented by Mr McLaughlin. There was no appearance by or for the respondent. This was not unexpected given that no response had been received. I was however satisfied that previous orders had been complied with in that the respondent was sent the documentation and notice of that the final hearing was taking place.[7]I also noted that on 15 November 2023 the original claim form (ET1) was served on Andrea Mcallister. The Tribunal did not receive a response form (ET3). She was however aware of the proceedings. The original claim form (ET1) was served on the respondent (of which Ms Mcallister is the sole director) on 3 May 2024. While Ms Mcallister sent emails to the Tribunal, she was told repeatedly that the response forms (ET3) that she said had been sent were not received by the Tribunal and were to be resent. Despite opportunities to do so no response forms (ET3) were received.[8]At this final hearing I heard evidence from the claimant who referred to documents that had been prepared for the final hearing on 24 October 2024 and copied to the respondent.[9]I have set out below facts as found that are essential to my reasons. I appreciated that the claimant’s evidence was uncontested. However, her evidence was given candidly and based on her understanding of events. Findings in Fact[10]From 1998 the claimant was employed as a bar person by Raphael Ramani trading as Sutherland’s Bar. This was a public house where drinks and food were served to customers. She worked 31 hours per week and was paid a gross weekly salary of £315, which equated to a net weekly salary of £294.93.[11]While on sick leave, the claimant received a letter from Mr Ramani dated 13 May 2022 advising that his lease term on the Sutherland Bar was coming to an end and another tenant was taking over. The claimant was advised that from 1 June 2022 she was being asked to relocate to a new location: Martini’s Bar (formerly the Old Bank Bar), 11 William Street, Greenock, PA15 1BT. The claimant was asked to confirm that she was happy to continue her employment and continue her job at Martini’s in Greenock.[12]In a follow up letter to the claimant Mr Ramani confirmed that all the staff at the Sutherland Bar had been asked to relocate to Martini’s. Everyone’s employment rights were being protected. Mr Ramani noted that the claimant had provided him with sick lines on a continuous basis but had not been fit to attend welfare meetings. He wished to meet with her to discuss her health situation and what reasonable adjustments could be put in place.[13]The claimant obtained a report from her GP dated 7 July 2022 stating that the claimant was not fit to return to work and hoping that the matter could be resolved to everyone’s satisfaction. A meeting was arranged with Mr Ramani on 10 August 2022.[14]On 4 August 2022, the claimant received a letter from “Raphael Ramani, director for and on behalf of the company Vegan Plants Limited trading as Martini’s Bar”. The letter stated that the business had changed hands as of 4 August 2022 and that the meeting arranged for 10 August 2022 was cancelled. It was confirmed that the claimant’s employment was transferred to the new operator and that the claimant should contact the new operators (Fiona Carr and or Kevin Devine) at Martini’s Bar, 11 William Street Greenock, PA15 1BT to introduce herself, to update on her medical condition, and confirm her availability for work.[15]The claimant wrote to Ms Carr/Mr Devine providing her details, her fit notes and requesting advice on taking holidays while on sick leave. She received no reply. The claimant continued to send fit notes to the premises which were signed for and accepted.[16]The claimant read an article in the Greenock Telegraph on 18 October 2022, about Mr Devine stepping in to save the bar from closure and prevent job losses. Mr Devine had renamed the premises the Vault. The premises were ostensibly a public house where food was served.[17]On 21 December 2022, Jim McCourt, centre manager, Inverclyde Advice and Employment Rights Centre wrote to Mr Devine at The Vault Management Group Limited enclosing a mandate from the claimant. The letter confirmed that the claimant was on long term sick and was submitting fit notes as expected. The claimant wished to know what the decision was on annual leave. She had accrued a considerable amount and was looking to use some of her holidays. Mr McCourt asked what was the procedure for accessing the holidays.[18]No reply was received. The claimant continued to post fit notes to Mr Devine at 11 William Street, Greenock every eight weeks by recorded delivery. On 17 March 2023, Mr McCourt wrote to Mr Devine confirming that the claimant was still on long term sick and submitting fit notes as expected. She wanted to use her accrued annual leave and was giving four weeks’ notice for two weeks holiday to be paid to her from 14 April on the pay run after this date. No response was received to this letter which was signed for by Mr Devine on Tuesday 21 March 2023.[19]In April 2023 it came to the claimant’s attention that the premises were closed and were being refurbished. Mr McCourt sent an email to Mr Devine seeking clarity as to whether this was a temporary measure or was the business closed permanently. The claimant had continued to provide fit notes. No reply was received.[20]The respondent was incorporated on 24 April 2023, having its registered office at 11 William Street, Greenock and carrying on business as a public house and bar. Ms Mcallister is the sole director. The respondent started trading from the premises from 26 May 2023 as the Vault Bar. The respondent carries out the same economical activities as the business operated by The Vault management Group Limited. The respondent did not contact the claimant.[21]The claimant commenced early conciliation. On 5 July 2023, Mr McCourt wrote to the owner of the Vault Bar which was operating as normal. Mr McCourt advised that the claimant was listed as an employee of the Vault Bar which was understood to have closed for some time in April 2023. It was confirmed to the respondent that the claimant transferred to the company in or around August 2022, and had been on long term sick since that point. Mr McCourt sought clarity as to whether or not a TUPE transfer had taken place. It was explained that Employment Tribunal proceedings had been initiated but there had been no response to any correspondence that was sent. It was asked that the owners lay out their position as this would be helpful. The respondent did not reply to this correspondence. The respondent did not contact the claimant.[22]The claimant’s employment terminated on 26 May 2023. At the date of dismissal, she was 56 years of age and had been continuously employment for 25 years. The claimant’s ill health has continued.[23]These proceedings were raised against The Vault Management Group Limited on 6 July 2023. No response form (ET3) was received by the Tribunal. On 9 October 2023, Mr McLaughlin applied for the claim form (ET1) to be served the Vault Pub, Grub and Club as on the face of it there appeared to have been a transfer of a business or part of an undertaking to another person of an economic entitle that retains its identity. The new owner was understood to be Andrea Mcallister.[24]On 15 November 2023 the claim was served on Andrea Mcallister. The response was to be received by 13 December 2023. Ms McAllister sent an email to the Tribunal on 8 January 2024 advising that her company (the respondent) took over the business in May 2023. She kept the name. She had no previous activity with the former tenants and staff. Also the claimant did not work for the respondent when it started trading in May 2023. The email refer to sending “back a receipt for filling out all [relevant] information and a cover letter”. The Tribunal replied by email sent on 12 January 2024 asking for the information to be resent and if the claim is to be defended an application for extension of time was needed along with the response (ET3). No response was received by the Tribunal.[25]The Vault Management Group Limited was dissolved on 2 January 2024.[26]The claim form (ET1) was served on the respondent (of which Ms Mcallister is the sole director) on 3 May 2024. On 10 June 2024, Ms Mcallister sent an email to the Tribunal stating that she posted them back to the Tribunal in Glasgow on 14 May. She filled out the part that she could. The Tribunal asked by email sent at 16:01 to Ms Mcallister on 17 June 2024 that no response had been received from the respondent and asked that it be resent. Ms Mcallister replied by email sent on 17 June 2024 at 16:07:52: “I Andrea Mcallister am the manager/director of Duno bars. We have had no contact with this lady under this company or had she been employed by us since we took over in May 2023.”[27]The Tribunal sent an email to Ms Mcallister on 19 June 2024 advising that the email is not accepted as a response. A further copy of a response was sent. It was confirmed that the claimant’s representative would not oppose an applicating to extend the time for presenting the response. No application or response was received.[28]On 19 August 2024 Ms Mcallister sent an email to the Tribunal confirming that she had no involvement with The Vault Management Limited. She did not know if the claimant was previously employed at the bar. She took on a lease of empty property which had been closed for six weeks before signing the lease. The Tribunal again asked for the response form to be completed. No response form (ET3) was received.Deliberations
[29]Mr McLaughlin invited me to consider the terms of the ET1 claim form, as amended, which was uncontested by the respondent and make my decision based on the evidence before me.[30]Mr McLaughlin submitted that from the chronology of events the claimant’s employment has been subject to numerous transfers to different employers. From the evidence before me I agreed with this submission. The claimant’s employment started in 1998. Since June 2022 her place of work as a bar person has been at licensed premises at 11 William Street, Greenock. While the claimant was absent from work due to ill health, she remained employed and provided fit notes to her employer. The Vault Management Group Limited knew that the claimant’s employment had transferred. At no time was she informed that her employment was terminated nor was she asked why she was providing medical certificates which had been sent by recorded deliver post and signed for. While correspondence about holidays went unanswered she was not informed by anyone that her employment was terminated when the premised closed for a short period in April/May 2023. When the premises reopened in May 2023 the claimant did not know that there was a change of ownership. She continued to provide medical certificates. The business retained its identity as a public house where food is sold.[31]I had limited information about when the premised closed, the reason for it and what, if anything, had happened to the employees (other than the claimant) who worked there immediately before the premises closed. The closure was temporary and for a relatively short period during which the premises were being refurbished. When the premises reopened on 26 May 2023 the business continued under the same name. While the respondent may not have has any direct contact with The Vault Management Group Limited, given that it had operated a public house serving food and that the respondent’s business is essentially the same it would be surprising if no enquiries were made about potential liabilities about employees. The respondent is aware of these proceedings and has chosen not to participate.[32]I have concluded that notwithstanding the temporary cessation of the business operation by The Vault Bar Management Group Limited when the respondent started trading on 26 May 2023. Immediately before the transfer the claimant was an employee of The Vault Management Group Limited. Her employment transferred to the respondent who did not engage with the claimant. She was dismissed by the respondent. The dismissal was unfair. There was no process.[33]The claimant is entitled to a basic award. At the date of termination, she was 56 years of age and have been employed for 25 years. Her gross weekly wage was £315. Her basic award is 27.5 weeks pay at £315 per week, that is £8,662.[34]The claimant is entitled to 12 weeks’ notice of termination of employment. She received no notice. During the notice period the claimant remained sick absent. Her damages for breach of contact are 12 week’s pay that is £3,539.[35]The claimant sought by letters dated 21 December 2022 and 17 March 2023 to secure paid annual leave for the claimant commencing on 14 April 2023. The claimant did not receive a response to those letters nor did she receive payment. Accordingly on termination of employment she is entitled under regulation 14(6) of the Working Time Regulations 1998 to a payment in lieu. The claimant is entitled to 12.5 days annual leave at a net daily rate of £58.98 that is £737.25. 04 June 2025Deliberations
[1]The Claimant’s claim against 2nd Respondent Ms. A. McAllister is dismissed on withdrawal.[2]By consent, the Claimant’s claim against 1st Respondent The Vault Management Group Ltd. is dismissed, that company having been struck off the Register of Companies on 26 December 2023 and dissolved on 2 January 2024.. NOTE[3]Judgments are published online after they have been sent to the parties.