Miss F Morrison v Laura Dewar and others: 4104721/2018
JUDGMENT
[1]That at the time of the termination of her employment the claimant’s employer was Laura Dewar, the First Respondent. E.T. Z4 (WR)[2]The claims against the Second, Third, Fourth and Fifth Respondents are dismissed.REASONS
[1]The claimant in this case brings claims for unfair dismissal, a redundancy payment, wrongful dismissal, a failure to provide reasons for dismissal and a failure to provide written terms and conditions of employment. She named four different potential respondents and, following a preliminary hearing on 26 September 2018 a further respondent was added. The purpose of this hearing is to determine the correct identity of the employer.[2]Pennies Sports Bar Ltd. which was added as a respondent following the preliminary hearing, failed to present a response. With the exception of Tommy McMillan - Alchemy Inns Ltd none of the other respondents had presented a response either.[3]When the case called none of the respondents were present. That was in spite of Laura Dewar and Shena Dewar having been served with an Order to attend as a witness dated 30 January 2019.[4]The clerk made contact with Mr McMillan, by telephone, who advised that he had been injured at work the previous week and was unable to attend the hearing. He explained that he had seen a chiropractor twice and required to have a further session.[5]As the other respondents had not presented a response they were not entitled to take part in the proceedings, without the permission of the employment judge. Although Mr McMillan was not present I decided to proceed in his absence in terms of rule 47 of the first schedule of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. I considered that he had had ample opportunity before this hearing to inform the tribunal that he would not be able to attend and to have produced a relevant medical certificate.[6]Mr Dempsey for the claimant, produced a bundle of documents extending to 681 pages. In fact, only about 20 pages of that bundle were actually referred to. The documents will be referred to in this judgement by reference to the page number.[7]The claimant gave evidence on her own behalf and no further witnesses were called.Facts
[8]From the documents to which I was referred and the evidence which I heard I made the following material findings in fact.[9]The claimant has worked in the bar at Pennies bar for many years. She has retained payslips for 13 of those years.[10]In about 2005 the claimant’s employer was Alchemy Inns Ltd.[11]In August 2008 the business, carried on as Pennies bar, was transferred by Alchemy Inns Ltd to MD Pubs Ltd. The claimant’s employment transferred to that new employer, page 58. MD Pubs Ltd ceased to trade in about April 2011.[13]The business was then carried on by Alchemy Inns Ltd until 2013. The claimant remained carrying out her duties.[14]In about September 2013 the business of Pennies bar was taken over by Sandra and Steven Allison. The claimant ‘s employment was transferred to the business being carried on by Mr and Mrs. Allison.[15]The claimant continued to receive payslips showing her employer as being Alchemy Inns Ltd even after Mr Mrs. Allison were running the business. The explanation for that was because Alchemy Inns carried out the payroll function for Mr and Mrs. Allison.[16]Mr and Mrs. Allison ceased to operate Pennies bar at the beginning of 2017.[17]The business of Pennies bar was taken over by Laura Dewar.[18]Laura Dewar had been in charge of the kitchen in Pennies bar when that business was being operated by Mr and Mrs. Allison.[19]Before Mr and Mrs. Allison left their business they held a meeting with the staff and advised them that they were leaving the business and that it was being taken over by Laura Dewar.[20]The claimant continued to work in Pennies bar after Mr and Mrs. Allison had left. She reported to Laura Dewar.[21]The claimant was not given any documentation stating the identity of her employer.[22]The claimant was paid in cash by Laura Dewar for the work which she carried out. The cash payment was taken out of the takings for the business.[23]The claimant has received payslips for the period ending 3 June 2016 and 2 February 2017 showing her employer as being a business called Midas, pages 624 and 645.[24]She received a payslip dated 16 March 2017 showing her employer as a company called Pennies, page 646.[25]She received a payslip dated 5 May 2017, page 650 showing her employer as a company called Midas Clachan.[26]She received a payslip showing her employer as Pennies for the period ending 2 June 2017, page 654.[27]She received a payslip purporting to show her employer as Midas Clachan dated 9 June 2017, page 655.[28]The claimant did not recognise names of the purported employers on these payslips.[29]Laura Dewar ceased to trade from Pennies bar on Sunday, 25 February 2018. The public house has not operated since that date.[30]The claimant’s last shift was on Saturday, 24 February 2018.[31]The claimant requested from Laura Dewar a P 45 following termination of her employment. She received that document showing 7 March as the date of termination of her employment. That document, page 175, shows the employer to be Midas Clachan.[32]It is the claimant’s belief that Midas Clachan is a business operated by Sandra Allison. Mrs. Allison ceased to operate from Pennies bar in early 2017.[33]The claimant asked Laura Dewar for what was owed her in respect of accrued but untaken holidays. Laura Dewar transferred payment to the claimant’s bank account of £43.86 on 8 March 2018.[34]The payment to the claimant is shown as having been made by “L Dewar”, page 681.[35]The claimant has no knowledge of the company called Pennies Sports Bar Ltd. she has received no communication from such a company. Submission[36]Mr Dempsey submitted that there had been a series of Tupe transfers during the period of the claimant’s employment. The final transfer was to Laura[37]It was his submission that the correct employer could only be either Laura Dewar or Pennies Sports Bar Ltd. He submitted it was in fact Laura Dewar. There was no evidence that Pennies Sports Bar Ltd had ever been involved in employing the claimant.[38]The documents he said, were not of particular assistance and he submitted that little weight should be placed upon the wage slips or tax records as an indicator of the true employer. The claimant did not recognise the names on some of the payslips she had been given.[39]The pub had closed on 28 February 2018 and had not reopened. There was no question of a further Tupe transfer after that date.[40]The final payment to the claimant had been made from Laura Dewar personally and he submitted that she was the correct employer.[41]The issue for the employment tribunal to determine is who was the correct employer of the claimant at the time of termination of her employment.[42]The claimant has been employed working in the bar at Pennies bar for many years. Throughout those years there have been several changes in ownership and the claimant has transferred on each occasion to the employment of the new owner.[43]With the exception of Mr McMillan none of the other respondents presented a response. Although Laura Dewar and Shena Dewar were ordered to attend as witnesses by Order dated 30 January 2019 neither appeared nor gave any explanation for their non-attendance. They had not applied for the Order to be varied, suspended or set aside.[44]As a result the tribunal had to rely on the evidence of the claimant and the documents produced by her in reaching a decision. I also considered the contents of the response form presented by Mr McMillan and the Note issued following the preliminary hearing on 26 September 2018.[45]I concluded that none of the payslips referred to by the claimant in her evidence were of any assistance in determining was her employer at any given time. It appeared that Alchemy Inns Ltd had provided the payroll service for those running the business after Alchemy Inns Ltd itself had ceased to do so. Quite why the various names of different employers appeared on the payslips is unknown. I am however satisfied from the documents to which I was referred that the various names shown of purported employers is almost meaningless.[46]Even the P45 provided by Laura Dewar, at the request of the claimant, shows as the employer a company which in the claimant’s belief is operated by Sandra Allison and has nothing to do with Laura Dewar.[47]When Mr and Mrs. Allison were leaving the business, they informed the claimant and other staff that it was being taken over by Laura Dewar. There was no mention that the business being taken over was to be operated by any limited company and the only reference as to whom the business was being transferred was to Laura Dewar herself.[48]Prior to Mr and Mrs Allison ceasing to trade from Pennies bar Laura Dewar worked in the kitchen at Pennies bar. She did not inform the claimant that the statement made by Mr and Mrs Allison that she was taking over the business was in any way inaccurate. She sustained the belief by the claimant that following the departure of Mr and Mrs Allison her new employer was Laura[49]It is noteworthy that the final payment made to the claimant was made by Laura Dewar in a personal capacity. The payment came from Laura Dewar’s bank account to the claimant. It did not come from the bank account of any limited company.[50]The claimant had stated that payment of wages was always made in cash out of takings. That is how Laura Dewar paid her.[51]From the evidence I concluded that the correct identity of the employer was Laura Dewar.[52]The claim insofar as directed against Sheena Dewar, Tommy McMillan – Alchemy Inns Ltd, Midas Clachan Ltd and Pennies Sports Bar Ltd are all dismissed.[53]The case will now be listed for a full hearing on the merits against LauraIntroduction
[1]This case came before me for a Final Hearing on both liability and remedy. Mr Dempsey appeared for the Claimant. The Respondent had not submitted a response to the claim and did not appear at the Hearing. I had a bundle of documents extending to 681 pages which had been prepared for a Preliminary Hearing (the “PH”) before Employment Judge Atack on 15 February 2019.[2]At the PH the Claimant had given evidence and it had been decided by Employment Judge Atack that the Respondent had been the Claimant’s employer at the time of termination of her employment. Findings in fact had been made (paragraphs 8-35 of the PH Judgment) which, for the reasons explained below, were sufficient to deal with all of the claims apart from the alleged failure by the Respondent to provide a written statement giving particulars of the reasons for the Claimant’s dismissal. In relation to this claim, I heard evidence from the Claimant. Breach of contract (notice pay)[3]Paragraphs 29-31 of the PH Judgment record that:(a) the Respondent ceased to trade from the premises where the Claimant was employed (Pennies Bar) on 25 February 2018 and the premises have not operated since that date,(b) the Claimant’s last shift was on 24 February 2018 and(c) the Claimant received a P45 from the Respondent (showing 7 March 2018 as the date of termination of her employment).[4]Notwithstanding the date shown on the P45, it was apparent from these findings that the Claimant’s employment had been terminated by the Respondent without notice on 25 February 2018. Having been continuously employed by the Respondent and her predecessors at Pennies Bar for approximately 22 years, the Claimant was entitled to notice of termination of her employment.[5]In terms of section 86 (1)(c) of the Employment Rights Act 1996 (“ERA”) the notice required to be given by the Respondent to terminate the Claimant’s employment was 12 weeks. As that notice had not been given, the Claimant’s contract of employment (under which, irrespective of whether a written statement of particulars of employment had been given to her, she was entitled to that notice) had been breached. The Claimant was entitled to payment in lieu of the notice for which section 86(1)(c) ERA provided.[6]The Claimant worked 11 hours per week and was paid at the rate of £7.50 per hour. The payslips included within the bundle of documents showed that she was paid £82.50 gross and £65.90 net per week. Some of the payslips showed a slightly higher net figure but Mr Dempsey was content that my calculations should be based of £65.90.[7]Accordingly the pay in lieu of notice to which the Claimant was entitled was 12 x £65.90 which totals £790.80. Redundancy payment[8]Section 139(1) ERA provides that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that his/her employer has ceased or intends to cease to carry on the business for the purposes of which the employee was employed by him/her, or to carry on that business in the place where the employee was so employed.[9]Paragraphs 29-31 of the PH Judgment are again relevant here. The Respondent did cease to carry on the business for the purposes of which the Claimant was employed by her. The business which operated at Pennies Bar ceased to trade.[10]Accordingly the Claimant is taken to be dismissed by redundancy and is entitled to a redundancy payment. At the time of her dismissal the Claimant was 56 years of age and had more than 20 years’ service. Applying section 162 ERA (Amount of a redundancy payment) the appropriate calculation was £82.50 (a weeks’ pay) multiplied by 27.5 (representing 15 years’ service above the age of 41 with a multiplier of 1.5 and 5 years’ service below the age of 41 with a multiplier of 1) which produces a total of £2268.75. Unfair dismissal[11]Where an employee is dismissed, in terms of section 98(1) ERA it is for the employer to show the reason or principal reason for the dismissal. In this case the Claimant’s employment had been terminated by the Respondent (see paragraph 4 above) which means she was dismissed by the Respondent.[12]Because the Respondent had not presented a response to the claim, she had failed to show the reason or principal reason for the Claimant’s and the claim of unfair dismissal had to succeed.[13]As the Claimant was entitled to a redundancy payment, she was not entitled to a basic award (section 122(4)(a) ERA).[14]Turning to the compensatory award, section 123(1) ERA provides that this shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the employee in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. Here, the action taken by the Respondent was to cease trading from the premises where the Claimant was employed. The Claimant had not, at the date of the Hearing before me, secured alternative employment to replace her job with the Respondent. She had suffered loss of earnings for a period of 50 weeks between the end of the period of notice to which she had been entitled (20 May 2018) and the date of the Hearing. 50 weeks at £65.90 per week totals £3295.00.[15]In terms of section 124 (1ZA)(b) the amount of the compensatory award could not exceed 52 weeks’ pay. Accordingly the award in respect of future loss could not exceed a further two weeks’ pay. This was £65.90 multiplied by 2 which totals £131.80.[16]The Claimant suffered the loss of her statutory employment protection rights as a result of her dismissal. She sought an award of £500.00 in this regard but I decided that a figure of £300.00 would be more appropriate, in line with normal practice.[17]The total of the unfair dismissal compensation is therefore £3295.00 plus £131.80 plus £300.00 which totals £3726.80. Written statement of particulars of employment[18]In terms of section 38 of the Employment Act 2002, where (in proceedings to which the section applies, as it does here) the Tribunal finds in favour of the employee or makes an award to the employee and, when the proceedings were begun, the employer was in breach of the duty to give the employee a written statement complaint with section 1(1) or 4(1) ERA, the Tribunal must unless there are exceptional circumstances which would make it unjust or inequitable to do so, make an award of either the minimum amount (2 weeks’ pay) or the higher amount (4 weeks’ pay).[19]In this case there was no compliance with sections 1(1) or 4(1) ERA, i.e. no written statement of particulars of employment had been provided to the Claimant, and I decided that the award should be the higher amount. This was 4 x £82.50 which totals £330.00. Written reasons for dismissal[20]In terms of section 92 (1) ERA an employee is entitled to be provided by his/her employer with a written statement giving particulars of the reasons for the employee’s dismissal. Section 92(2) provides that this entitlement applies (with some exceptions which are not relevant in this case) only if the employee makes a request for such a written statement.[21]The Claimant gave evidence about this. She referred to asking the Respondent by text message for a P45. She also referred to speaking with the Respondent because of rumours that the premises were to be closing. However, the Claimant very fairly acknowledged that she had not asked the Respondent for written reasons for her dismissal.[22]Accordingly her claim under section 92 had to fail.