Miss A Logan v Flo Renewables and Building Regulation Services Ltd: 4104265/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4104265/2024

Between

Miss A LoganClaimant

Flo Renewables and Building Regulation Services LtdRespondent

Before

Employment Judge Russell Bradley

Ms K Logan for claimant

Claimant’s mother for claimant

Date 22 November 2024

JUDGMENT

[1]Insofar as the claims are made against the first respondent, they are dismissed;

[2]The claim of unfair dismissal against the second respondent contrary to section 99 of the Employment Rights Act 1996 succeeds;

[3]The dismissal of the claimant was unfavourable treatment contrary to section 18 of the Equality Act 2010;

[4]The second respondent is ordered to pay to the claimant the sum of SIX THOUSAND THREE HUNDRED AND THIRTY EIGHT POUNDS AND SEVENTY ONE PENCE (£6,338.71) as solatium for injury to feelings;

[5]The second respondent is ordered to pay to the claimant the sum of SEVENTEEN THOUSAND THREE HUNDRED AND THIRTY TWO POUNDS AND EIGHTY TWO PENCE (£17,332.82) as compensation for loss of earnings;

[6]The second respondent is ordered to pay to the claimant the sum of THREE HUNDRED AND FORTY THREE POUNDS AND TWENTY PENCE (£343.20) as damages for its failure to give notice to terminate the contract between the parties

[7]The second respondent is ordered to pay to the claimant the sum of TWO HUNDRED AND FIVE POUNDS AND NINETY TWO PENCE (£205.92) as compensation for its failure to pay holiday pay;

[8]The second respondent has made unlawful deductions from the wages due to the claimant; and

[9]The second respondent is ordered to pay to the claimant the sum of TWO HUNDRED AND SIXTY POUNDS AND SIXTY SEVEN PENCE (£260.67) being the amount of the various deductions made by it.

REASONS

[1]By notice issued on 14 August 2024 this final hearing was fixed. The ET1 brought claims of discrimination on grounds of(i) pregnancy or maternity and

(ii) disability; and for notice pay, holiday pay, arrears of pay and “other payments.”

[2]Between 9 January and 16 February 2024 the claimant was employed as an administration assistant. History of these proceedings

[3]The ET1 was presented on 25 March 2024. It named the first respondent only. Early conciliation had begun on 22 February. The certificate was issued on 22 March.

[4]On 27 March notice of the claim was issued to the first respondent. At the same time the parties were given notice of a case management preliminary hearing fixed for 22 May. The first respondent did not lodge an ET3 by 24 April 2024 (the due date) and has not since.

[5]At the CM PH on 22 May the claimant was represented by her mother as she was at this hearing. The first respondent did not appear.

[6]On 24 June EJ McFatridge issued a Note and Orders from the PH. The Orders were for further and better particulars of:a. the identity of the legal personality and the body which trades as Flo Renewables;

b. with regard to her claim of maternity discrimination, confirmation that this relates solely to her dismissal. The claimant shall also provide a note of the date of her dismissal and the date of the termination of her pregnancy. She should also set out those matters which lead her to believe there is a causal link between her pregnancy and her dismissal;

c. with regard to the claim relating to unlawful deduction of wages/failure to pay minimum wage, the claimant shall set out the dates during which she considers she was employed, the amount which she was paid during these dates, the amount she was actually paid together with a calculation of the sum she considers to be due;

d. with regard to the claimant’s claim in respect of holiday pay, the claimant shall set out a calculation showing the amount she considers to be due under this hearing;

e. with regard to the claim of breach of contract (failure to pay notice pay), the claimant shall confirm the dates she was employed together with the date of termination of her employment and provide details of any sums subsequently received in respect of notice pay (if any).

[7]The claimant provided material and answers to the Orders. I had access to it.

[8]Also on 24 June the tribunal issued a judgment in the following terms: “The claim of disability discrimination having been withdrawn by the claimant is dismissed under Rule 52 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.”

[9]As noted above, one of the Orders was to do with the identity of the legal personality and the body which trades as Flo Renewables. The Order followed the tribunal’s Companies House search and comments about the legal personality of the first respondent.

[10]In her reply to the Order, the claimant named BRS (Building Regulations services). She advised that its address was that of the first respondent. On 5 July the claimant’s mother emailed the tribunal to say, “Alyshia worked for the company Flo Renewables, and was paid by BRS building regulation services. Same owner and director -Raymond McGurk. It stated on her bank payments BUILD REG SERV LTD with the reference ‘brstemp’”.

[11]On 9 July the tribunal wrote to the claimant recording the order of EJ Wiseman that the claim be served on Building Regulation Services Ltd. The letter sought from the claimant an address for service, which she provided by email that day.

[12]On 12 July the tribunal gave the second respondent notice of the claim at the address above. It gave notice that it “required to lodge a response which must be received … by 9 August 2024 at the latest.”

[13]By 9 August the second respondent had not lodged a response. Nor had it sought an extension of time to do so.

[14]It appears that a hearing had been fixed for 11 September. By letter dated 14 August EJ Whitcombe ordered its postponement and re-service on the respondents. The letter was issued to both respondents.

[15]On 12 September the tribunal received a letter dated 30 August from the second respondent. It suggested that it had not received either a copy of the ET1 or a blank ET3. It sought a copy of all information and correspondence to date. It sought specifically “any contract the claimant had with our company.” It recorded the author’s (R McGurk’s) understanding that “this was a work experience with no guarantee of employment.”

[16]On 18 September, the tribunal wrote to the second respondent. It said a legal officer had instructed the re-issuing of the documents which were enclosed. It continued, “the Legal Officer has also directed if the Respondent wishes to defend the claim, they must present an ET3 response form. As the due date for the response has now passed, they will be required to submit an application for an extension of time to lodge the response. The application must be copied to the claimant and explain why an extension is required. Their application should be accompanied by a draft of the ET3 they wish to present or an explanation as to why it is not possible to do so.” The documents enclosed were: ET1 (Claim form); Claimant’s Further & Better particulars; the PH Note; the Notice Of Final Hearing; and a Blank ET3 (Response Form)

[17]On 3 October the tribunal wrote to the second respondent in the following terms, “I refer you to our letter of 18 September, we have not yet received a response to the claim. If you wish to defend the claim you must take the action detailed in the letter of the 18th September: if you do not do so, the claim will proceed as undefended at the hearing arranged for the 30 October 2024.” There has been no reply or further correspondence from either respondent.

Evidence

[18]The claimant gave evidence. For the most part her evidence was in answer to my questions. Where relevant she spoke to the material which she had provided in answer to the Orders. She answered my questions without hesitation, willingly, and candidly. Her evidence about the history of her relationship with the second respondent was consistent with the material which she provided. It included correspondence from the second respondent. I found her to be credible and reliable.

The claims

[19]Prior to hearing her evidence, the claimant confirmed that she made the following claims:a. Discrimination on grounds of pregnancy or maternity; the conduct relied on as discriminatory is (only) the claimant’s dismissal

b. Notice pay; an amount representing the pay she should have received had she been given statutory notice (one week) to end her employment

c. Holiday pay; on her analysis the claimant asserted that she was entitled to be paid in lieu of accrued and untaken paid leave of 16 hours based on the amount of time that she worked

d. Arrears of pay; specifically pay for the 19 days of work done, a claim for what was due under the National Minimum Wage (£1738.88) less what had been paid, (£930.09) thus £808.78.

[20]No claim was made for “other payments” as indicated on the ET1 form. However as per its narrative on pages 8 and 12 of the ET1 form she sought compensation for injury to feelings as a result of the alleged unlawful discrimination.

The issues

[21]Relative to the claims, the issues for determination are:a. Was the claimant unfairly dismissed by the second respondent because the reason for her dismissal related to her pregnancy?

b. Was the dismissal unfavourable treatment in terms of section 18 of the Equality Act 2010?

c. If the answers to a and b are “yes”, to what compensation is she entitled?

d. On her dismissal, to what period of notice was the claimant entitled?

e. Did the second respondent provide that period of notice, or make a payment in lieu of it?

f. If the answers to d and e are “no” to what compensation is the claimant entitled as damages for the second respondent’s failures?

g. In the period of her employment what period of paid leave accrued to the claimant; and what leave did she take in that period?

h. To what compensation is the claimant entitled in respect of accrued and untaken paid leave?

i. For the 19 days of work, what wages were due to the claimant? In respect of the days/work what wages were paid to the claimant?

j. If the amount paid was less than that due, what amount has been deducted?

k. Was any deduction unauthorised? And if so to what remedy is the claimant entitled? Findings in fact

[22]From the tribunal file; the discussion prior to hearing evidence; and the claimant’s evidence including her reference to the material produced in answer to the Orders, I made the following findings in fact.

[23]The claimant is Alyshia Logan. Her date of birth is 23 May 2000. In the period in question (January and February 2024) she was 23 years of age.

[24]Some time in about mid December 2023 via the website Indeed.com the claimant applied for the role of administration assistant. She was referred for an interview which took place on Wednesday 20 December 2023 at about 3.45pm. The interview took place at the respondents’ premises at 110 Flemington Street Glasgow. Her interviewers were Raymond McGurk, a director of the second respondent and Alison Milne, a manager employed by the second respondent.

[25]On 21 December Mr McGurk sent a WhatsApp message to the claimant. It said, “we would like to offer you an initial 2 week paid job trial beginning on 8 January 2024 starting at 8.30.” Within one minute, the claimant had accepted the second respondent’s offer.

[26]From her interview at the respondents’ premises the claimant understood that the first and second respondent are connected. She understood from signage at 110 Flemington Street Glasgow that they share premises there. She understood that the services which they offer are in some way connected. She believed that the second respondent carries out “measuring up” works in relation to services such as underfloor heating and that the first respondent does installation of that type of heating and “air vent” heating. She understood that they “partnered together”. She understood that Raymond McGurk was to do with both businesses.

[27]The claimant started work on Tuesday 9 January. In the period of her employment, her main duties included managing diary appointments for Raymond McGurk and one of his work colleagues, Joe; inputting data using software in relation to floor planning; and handling telephone and email enquiries. Her normal weekly hours of work were about 30 (see the ET1 form). Ordinarily she worked Monday to Friday, starting at 8.30am. Her day ended at either 4.00pm or 4.30pm depending on volume of work and whether she was alone in the office or not.

[28]The claimant had done no paid work in the tax year 2023/24 until she began work with the second respondent.

[29]On Friday 12 January the claimant sent a WhatsApp message to Mr McGurk to say; she really enjoyed her first week; couldn’t wait to come back the following Monday (15); thanked him for being paid £218; and asked for information about(a) her hourly rate of pay and

(b) the number of hours represented by her work that week. On Monday 15 Mr McGurk replied. He said: the paid trial week they covered £275 for “expenses etc which equates to £7.54 per hour;” she had worked 29 hours which he said equated to £218.49 in a normal full week; and “if we offer you a full contract at the end of the 2 week trial the starting rate of pay will be £20,688 which equates to £10.90 ph.” The claimant had not agreed to be paid expenses in lieu of salary for her work in week ending 12 January. Nor had she agreed an hourly rate of £7.54 for that work. She agreed that she had worked about 29 hours in that first week. She understood at that time that the relevant National Minimum Wage rate per hour for someone of her age was £11.44. At that time, she did not question her rate of pay or the suggestion of being paid “expenses”. She was just happy to have a job.

[30]In the week ending Friday 19 January the claimant received £275.00 pay. She had worked about 30 hours that week.

[31]On or about 23 January (a Tuesday) she met with Mr McGurk at her place of work. By that time, she had completed her 2 week trial. Mr McGurk told the claimant to “sign up with Skills Development Scotland” (SDS). On his instruction she did so. This required appointments at the premises of SDS in George Square, Glasgow. One of the appointments was on 26 January at 3.00pm. The claimant did not know why she was being required to do so. As far as Mr McGurk had explained, SDS “help you” to get a job. While at SDS’ premises the claimant “signed some paperwork.” She did not produce a copy of it.

[32]On 25 January she again received pay of £275.00 for work done in week ended that date. The claimant had worked about 30 hours that week.

[33]All pay was paid directly into her bank account by the second respondent. Her bank records show the reference (payer) as being “brstemp”.

[34]In week beginning Monday 29 January the claimant was absent by reason of illness on one day, Thursday 1 February. For the hours worked in the four days of that week she received £220.00 on Friday 2 February.

[35]On Tuesday 6 February the claimant learned that she was pregnant. On 7 February she sent a WhatsApp message to Alison Milne, her manager, to let her know. She gave permission for the news to be shared with Mr McGurk. Ms Milne replied that day. Amongst other things Ms Milne said to the claimant not to worry about work. In the course of further exchanges with Ms Milne the claimant indicated her enthusiasm to come back to work albeit she was unwell.

[36]From and including 6 February to the end of the employment the claimant was absent from work through illness.

[37]On Friday 9 February the claimant received £55.00.

[38]On 14 February the claimant terminated her pregnancy.

[39]On Friday 16 February, Mr McGurk sent two WhatsApp messages to the claimant. In the first he said, “…a note to let you know we’ve decided to restructure within the existing businesses and wanted to let you know we will not be in a position to offer you a job within our company.” The second said, “Hope everything work out going forward.” The claimant replied. She said, “I must express my disappointment and concern the treatment I have received during my time with your organisation. From the very beginning, I have been open and honest ….expecting understanding and support. Something that has been very hard for me to communicate.” She then sent another message to say, “However, it seems that my condition has been used against me resulting in unfair treatment.”

[40]Mr McGurk’s messages were treated as the dismissal of the claimant. She received no pay for week ending 16 February. The second respondent did not provide any notice of dismissal. The second respondent did not make a payment in lieu of the notice period (1 week) due to the claimant.

[41]By 16 February the claimant had not taken any paid leave.

[42]The claimant was confused by Mr McGurk’s suggestion that the second respondent was not in a position to offer her a job. By the time of his message, she had completed the 2 week trial period. She had continued to work beyond it without complaint. Until his message, there had been no suggestion of any restructure of the respondents’ businesses.

[43]Since 16 February, the claimant has been unable to obtain alternative employment. She was in receipt of Adult Disability benefits from about 15 January 2024. She has since been receiving Universal Credit of £290 per month. She has attempted to find alternative employment via Indeed.com and one other agency. She has registered with the Job Centre. She has suffered panic attacks prior to the two interviews that she has been able to secure. She has consulted her GP. She has since been referred to a mental health clinic. She awaits a formal diagnosis. She finds it difficult to begin and progress applications for work. In her opinion a factor in that state of affairs is the way she was treated by the second respondent.

[44]To her knowledge, no income tax or national insurance contributions by the second respondent were deducted from her pay.

[45]The claimant calculated her entitlement to be paid for accrued and untaken leave using the relevant UK Government’s website/calculator.

[46]Her effective date of termination was 16 February 2024.

[47]On 10 September 2024 a letter was received by the employment tribunal dated 3 September. It appeared to be from the first respondent. It referred to this claim by its reference number. It advised that the claimant was “on a work experience opportunity with Building Regulations Services Ltd and not Flo Renewables.”

[48]On 12 September 2024 a letter was received by the employment tribunal dated 30 August. It appeared to be from the second respondent. It bore to be signed by R McGurk. Raymond McGurk is a director of the second respondent. It says, “…my understanding this was a work experience opportunity with no guarantee of employment.”

[49]The claimant was employed by the second respondent.

[50]The National Minimum Wage for an employee of the claimant’s age at the time of her employment was £11.44 per hour. Submissions

[51]No formal submission was made as such. The claimant asked me to decide that her claims should succeed based on the evidence that she had given and the material which had been produced.

The law

[52]I have identified the law relevant to each claim below, along with how I have applied it to my findings. Discussion and decision

[53]I am satisfied that the claimant was employed by the second respondent. In December 2023 she accepted an offer of employment received from Raymond McGurk, a director of the second respondent. On 9 January she began work for the second respondent. She was paid wages by it for that work. She continued to work for it beyond the stipulated two week trial period. In its letter to the tribunal of 12 September the second respondent accepted that the claimant had been given a “work experience opportunity” with it. That is indicative of an employer/employee relationship. On my findings, the claimant continued to work beyond any trial. She was, certainly by 16 February, an employee of the second respondent.

[54]Section 99(1) of the Employment Rights Act 1996 provides “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—(a)the reason or principal reason for the dismissal is of a prescribed kind, or (b) the dismissal takes place in prescribed circumstances.” Subsection (3) of section 99 provides, “A reason or set of circumstances prescribed under this section must relate to—(a) pregnancy, childbirth or maternity.” In my view it is more likely than not that the reason (or principal reason) for the claimant’s dismissal related to her pregnancy. On 7 February the claimant was told by her line manager not to worry about work. The context of that advice was the news of her pregnancy. By that time, the claimant had been given no reason to believe that her employment might be ended by reason or her conduct, her capability, or any business reorganisation. But by 16 February the second respondent dismissed her with immediate effect. The reason relied on was “restructure within the existing businesses.” Nothing was produced at that time or since as evidence of that restructure. Nothing had been said to the claimant prior to 16 February to suggest that a restructure was possible, imminent, or likely to affect her employment. There was in this case no evidence of either a restructure or why it would result in the claimant’s dismissal. The only change which had occurred in February and of which the second respondent was aware was her pregnancy. It is therefore more likely than not that the reason for the claimant’s dismissal related to her pregnancy. Her claim under section 99 of the Employment Rights Act 1996 succeeds. In terms of section 108(3)(b) of that Act the “normal” service requirement of two years does not apply. She was unfairly dismissed. I answer Issue 21a “yes”.

[55]Her dismissal is unlawful discrimination in terms of section 18(2)(a) of the Equality Act 2010. Dismissal is self-evidently unfavourable treatment. That treatment occurred because of the pregnancy. The dismissal occurred “in the protected period”. That period began when her pregnancy began. It ended on 28 February, being the end of the two week period which was the end of her pregnancy (section 18(6)(b)). The answer to Issue 21b is “yes”.

[56]By 16 February the claimant had been employed for 5 weeks and 2 days. The notice required to end her contract was thus one week (section 86(2) of the Employment Rights Act 1996). The answer to question 21d is “one week”. The claimant’s contract was ended without notice. The second respondent failed to comply with section 86(2). The answers to 21e is “no”. In terms of Article 3 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 the claimant is entitled to bring a claim for an amount representing damages in respect of that failure. The amount due is one week’s pay. On the claimant’s analysis that is £ 343.20 which is the answer to Issue 21f, (30 hours per week X £11.44 per hour).

[57]In terms of Regulation 13(3)(b)(ii) of the Working Time Regulations 1998 the claimant’s holiday year began on 9 January 2024, the date her employment began. Using the information available (hours of work, days of work and a termination date of 16 February) the claimant is entitled to 18 hours holiday. I have used the relevant www.gov.uk website as apparently did the claimant. 18 hours is therefore the answer to the first part of Issue 21g. The answer to the second part is “none”. The claimant is thus entitled to £205.92 in respect of accrued and untaken holiday which amount is the answer to Issue 21h.

[58]It is perhaps not strictly necessary but nonetheless helpful to identify the 19 days on which the claimant says she worked. As I understand it she worked as follows:a. In week ending 12 January 4 days

b. In week ending 19 January 5 days

c. In week ending 26 January 5 days

d. In week ending 2 February 4 days

e. In week ending 9 February 1 day

f. In week ending 16 February 0 days

[59]The table shows the amount due as wages in each week, what was paid, what was not paid and thus what was deducted. Week No. of No. of hours Due @ Paid difference ended days worked £11.44 per worked hour Jan 12 4 24 274.56 218.49 56.07 Jan 19 5 30 343.20 275.00 68.20 Jan 26 5 30 343.20 275.00 68.20 Feb 2 4 24 274.56 220.00 54.56 Feb 9 1 6 68.64 55.00 13.64 Feb 16 0 0 00.00 TOTAL 19 114 1304.16 1043.49 260.67

Remedy

[60]It may be useful to summarise the position in relation to the various remedies ordered by the judgments above.

[61]The claimant is entitled to damages of £343.20 representing one week’s pay for the period of notice that she did not receive.

[62]On the question of dismissal, compensation is ordered under section 124 of the Equality Act 2010 and not the Employment Rights Act 1996 (see section 126 of the 1996 Act). The claimant has lost earnings in the period between 23 February 2024 and the date of this hearing, 30 October, a period of 35 weeks. It is likely that it will be at least another 13 weeks from 30 October before she finds employment. Her loss of earnings as a result of unlawful discrimination is therefore (49 weeks x £343.20), £16,816.80. She gave evidence about the impact on her of that dismissal which I accepted. On the question of solatium for injury to feelings as a result of the discrimination, I took account of what is said in the case of Vento v Chief Constable of West Yorkshire Police

[2003] ICR 318

and to the bands relevant to when the claim was presented. In my view this case was about the middle of the lower band. The award for injury to feelings is therefore £6150.00. I have attributed half of it (£3,075) to past loss. Interest is awarded on that sum from the date of discrimination (16 February 2022) to the date of calculation of compensation (22 November). That period is 280 days. At 8% per year, interest over that period on £3075.00 is £188.71. The total award for solatium including interest is therefore £6,338.71 as per paragraph 4 of the judgment.

[63]On the award for loss of pay, the midpoint date between the date of loss and the date of calculation of compensation is 5 July (140 days). Interest at 8% per year on £16816.80 over 140 days is £516.02. The total award for loss of earnings including interest is therefore £17,332.82 as per paragraph 4 of the judgment.

[64]In terms of Regulations 14 and 30 of the Working Time Regulations 1998 the claimant is entitled to £205.92 which is reflected in paragraph 7 of the judgment.

[65]Section 24 of the Employment Rights Act 1996 provides remedies under Part II of that Act. Paragraphs 8 and 9 of the judgement reflect them, by virtue of which the claimant is awarded £260.67. R Bradley