Ms M A Simm v Cpan Survivor Ltd T/a Ryan’s Bar: 4104899/2024
JUDGMENT
Having heard sworn evidence from the claimant, and there having been no response or other application from the respondent, the judgment of the Tribunal is as follows.[1]The claimant was unfairly dismissed. She is entitled to compensation for unfair dismissal as set out below, and the respondent is ordered to pay those sums to the claimant:a. a basic award of £16,146.00 (based on 18 years’ continuous service at the rate of 1.5 weeks’ gross pay for each of those years of service at the rate of £608 per week);b. a compensatory award reflecting net losses to the date of this hearing totalling £3,940.34; Case No.: 4104899/2024 Page 2c. the claimant has not claimed any relevant state benefits and so no recoupment will occur under the Employment Protection (Recoupment of Benefits) Regulations 1996.[2]The complaint of disability discrimination succeeds. The claimant is awarded compensation for injury to feelings of £10,512.87 (including interest of £512.87) and the respondent is ordered to pay that sum to the claimant.[3]The respondent made an unlawful deduction from the claimant’s wages in relation to the payment due in respect of untaken entitlement to paid annual leave upon termination. The deduction was of £962.50 (gross) and the respondent is ordered to pay that sum (or the net equivalent) to the claimant.[4]Oral reasons for this judgment were given at the end of the hearing. There was no request for written reasons.REASONS
[1]The claimant presented a claim to the Employment Tribunal on 8 May 2024 alleging she had been unfairly dismissed (constructive dismissal); discriminated against because of disability and that there had been a failure to pay her the correct holiday pay.[2]The respondent did not enter a response.[3]A final hearing took place on 30 August 2024. The respondent had not entered a response and did not attend the hearing. A Judgment dated 30 August 2024 was issued. The claims of unfair dismissal, disability discrimination and payment for holiday pay were successful and monetary awards were made.[4]A letter from legal representatives instructed by the respondent was received on 19 September 2024, making an application for an extension of time for an ET3 to be entered.[5]The respondent’s application was opposed by the claimant, and a hearing took place on 21 November 2024. The Employment Judge decided to revoke the Judgment dated 30 August 2024 and to allow an extension of time for the ET3 to be received.[6]A case management preliminary hearing took place on 16 January 2025 at which the respondent was represented by a legal representative. The case was listed for a final hearing, before a full tribunal panel, on 15, 16 and 17 April 2025.[7]The tribunal, since that time, have received no correspondence or contact from the respondent or his representative. Ms Bowman informed the tribunal that the representative had withdrawn from acting.[8]Ms Bowman had, on the day prior to the commencement of this hearing, emailed the tribunal and copied to Mr Soliman, Director of the respondent, to advise that she had been unable to make contact with the respondent and if he failed to attend the hearing, she intended to make an application for the response to be struck out.[9]The tribunal also copied the email to Mr Soliman but there was no reply to it.[10]Mr Soliman did not attend the hearing today and there was no contact from him regarding any reason for his failure to attend. In the circumstances the tribunal decided to proceed in his absence.[11]The tribunal heard evidence from the claimant and we were also referred to a number of documents. The tribunal, on the basis of the evidence before it, made the following material findings of fact.Findings of fact
[12]The claimant commenced employment on 25 September 2005. She was, at that time, employed by Suburban Taverns Ltd, as Manager of Neeson’s Bar. The claimant worked a shift of either 10am to 5pm or 5pm to midnight on 6 days a week (page 46).[13]The respondent took over the lease of the bar (and changed the name to Ryan’s Bar) on 14 August 2023. The respondent accepted this was a transfer of an undertaking in terms of the Transfer of Undertaking (Protection of Employment) Regulations (TUPE) and that the respondent employed the claimant from that date.[14]The claimant has arthritis in both knees. The claimant produced extracts from her medical records (page 112) which confirmed she had attended at her GP with knee pain in 2022. The claimant was given medication and attended at a physiotherapist for exercises to help with the pain. The claimant was referred to Hairmyres Hospital for a consultation in October 2022.[15]The claimant finds that her knee pain increases as the day goes on and by early evening she is limping. The claimant has had to stop walking the dog and finds that she is much slower in carrying out other household tasks. The claimant adopted the practice of taking painkillers before attending for work.[16]The claimant met with Mr Soliman, Director, following the transfer and found that although she had been told nothing would change, in fact everything changed: her banking duties were removed, her shifts were changed and she no longer prepared the rota. The claimant was given four double shifts to do over a Tuesday, Friday, Saturday and Sunday (page 47). The claimant told Mr Soliman she could not do double shifts because of her knee pain, and she asked to return to her previous shift pattern, but nothing changed.[17]The claimant attended her GP on 24 August 2023 and was signed off as not fit for work due to stress.[18]The claimant was told by a customer that Mr Soliman intended to “get rid” of all staff because he had his own staff to bring in. The claimant, upon hearing this, started to look for alternative employment.[19]The claimant attended at work to ask the manager for a copy of her licence and training records. The claimant was told that Mr Soliman would post them out to her. This did not happen.[20]The claimant sent emails to Mr Soliman regarding payslips and queries regarding the calculation of sick pay. The claimant was informed to only contact Mr Soliman via recorded delivery.[21]Mr Soliman emailed the claimant in November 2024 to advise that neither she nor her husband were to visit the bar any more.[22]The claimant resigned on 9 January 2025 (page 48). The claimant, in her letter of resignation, referred to having been told to only contact Mr Soliman by recorded delivery and this, together with other actions, had had a detrimental impact on her mental health. The claimant felt she had no option but to resign. The claimant referred to the 2 week sick note and stated she was due another 2 weeks holiday pay. The claimant considered this should be sufficient for her notice period.[23]The claimant, as at the termination of her employment, had accrued two weeks’ holiday for which she had not been paid.[24]The claimant commenced alternative employment in February 2024. The claimant is employed as a Bar Manager. The claimant has not been in receipt of any benefits. Submissions[25]Ms Bowman submitted the claimant was a disabled person because of the physical impairment of arthritis. The claimant’s medical records had been produced and confirmed this and the medication prescribed for pain relief. The claimant had severe knee pain which impacted on her ability to carry out normal day to day activities.[26]The claimant brought a claim in respect of failure to make reasonable adjustments. The provision, criterion or practice (PCP) applied by the employer was that a variety of shifts required to be worked which included double shift. This placed the claimant at a disadvantage because there was insufficient time to rest and it exacerbated her knee pain. It would have been a reasonable adjustment for the claimant to work shorter shifts over five days. The respondent refused to make this adjustment and it resulted in stress for the claimant from 23 August 2023 until 9 January 2024.[27]The claimant also complained of unfair constructive dismissal. The respondent had breached the implied duty of trust and confidence by failing to make reasonable adjustments; telling customers he wanted to dismiss the claimant; by dismissing her because of the TUPE transfer; failing to pay the claimant correctly; removing her managerial duties; refusing to give the claimant her licence and training records and barring the claimant.[28]Ms Bowman invited the tribunal to make an award of a basic award £16,416; a compensatory award of £8067.34; injury to feelings of £11,700 plus interest and holiday pay of £942.54 (gross). Discussion and decision[29]The tribunal found the claimant to be a credible witness and we accepted her evidence. The tribunal did have regard to the ET3 response. The respondent, in the ET3, accepted it had taken over the bar on 14 August 2023 and that there had been a TUPE transfer. The respondent denied knowledge of the claimant having arthritis, although accepted the claimant had told him the double shifts were too long. The respondent also denied changing the claimant’s duties and asserted Mr Soliman had involved himself in ordering stock and doing the staff rota in order to learn and understand the business. The respondent accepted there was a shortfall in sick pay, and further accepted the claimant had asked for her personal licence and training records but they could not be found. The respondent denied barring the claimant. The respondent denied a failure to make reasonable adjustments on the basis of lack of knowledge; and also denied the claim of constructive dismissal by asserting there had been no breach of contract and, even if there had been, the claimant had delayed in resigning and there had been issues regarding her conduct for which she would have been dismissed in any event. Failure to make reasonable adjustments[30]The tribunal had regard to the terms of section 20 Equality Act which provides that where a provision, criterion or practice of the employer puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, there is a duty to take such steps as it is reasonable to have to take to avoid the disadvantage.[31]The first issue to determine is whether the claimant was a disabled person in terms of section 6 of the Equality Act at the time of the alleged discrimination. The claimant has arthritis in both knees and suffers pain as a consequence of that impairment. The tribunal accepted the claimant’s evidence that the arthritis in her knees limits what she can do in terms of standing for longer periods of time and her mobility. The impairment has a substantial adverse effect on her ability to carry out normal day to day activities such as walking any distance (for example, walking the dog). The claimant also has to take medication to deal with the pain and without that medication she would be even more limited in terms of day to day activities. The tribunal concluded, for these reasons, that the claimant was a disabled person in terms of the Equality Act, and that she was so at the relevant time.[32]The next issue for the tribunal is whether the respondent failed to make reasonable adjustments in terms of section 20 Equality Act. The respondent denied this claim on the basis Mr Soliman did not know the claimant had arthritis. The tribunal preferred the evidence of the claimant that when she was informed of working double shifts on four days of the week, she told Mr Soliman that she could not do this because of the pain in her knees: the claimant told Mr Soliman about the problem with her knees and that she was going to the physiotherapist. The tribunal concluded from this that Mr Soliman had knowledge, or ought reasonably to have known, of the disability.[33]The tribunal accepted there was a PCP in place of having to work a variety of shifts which included double shifts. The tribunal also accepted this put the claimant at a substantial disadvantage in comparison with persons who are not disabled because the claimant was unable to work double shifts back-toback because there was no recovery time and it caused such pain in her knees. The tribunal concluded that in those circumstances the respondent was under a duty to make reasonable adjustments and they failed to do so. This claim succeeds.[34]The tribunal made an award, in respect of this claim, of Injury to Feelings in the sum of £11,700 (which includes interest). Unfair constructive dismissal[35]The tribunal had regard to the terms of section 94 Employment Rights Act which provides that an employee has the right not to be unfairly dismissed, and to section 95 which provides that an employee is dismissed if …. (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[36]The claimant asserted she resigned in response to the respondent’s breach of contract, and the breach of contract was a breach of the implied duty of trust and confidence. The tribunal concluded there had been a breach of the implied duty of trust and confidence arising from the failure of the respondent to make reasonable adjustments; the failure to pay the claimant correctly; removing the claimant’s managerial duties; refusing the provide the personal licence and training records to the claimant; barring the claimant and her husband from the premises and making it known he wished to dismiss existing staff. The tribunal further accepted that all of these matters arose immediately after, and because of, the transfer.[37]The tribunal was also satisfied the claimant had resigned in response to this breach. The tribunal acknowledged the claimant started to look for alternative employment, but this was only after the claimant had tried to resolve the issue of double shifts with her employer and after she had been told by a customer that Mr Soliman intended to dismiss staff. We concluded in the circumstances that it was the breach of the duty of trust and confidence which caused the dismissal and not the fact the claimant found alternative employment.[38]The respondent, in the ET3, alleged there had been concerns regarding the claimant’s conduct and that she would have been dismissed in any event for these matters. The tribunal preferred the evidence of the claimant that none of these alleged issues had been raised with her.[39]The tribunal decided the claimant had resigned in response to the breach of contract, that she had not delayed in resigning and that she had been unfairly constructively dismissed. The tribunal further decided the dismissal was automatically unfair because the claimant resigned in response to changes connected with the TUPE transfer.[40]The claimant is awarded a basic award of £16,416 (being 18 years x 1.5 weeks x £608 gross per week).[41]The claimant is awarded a compensatory award of £8067 to reflect her losses from the date of dismissal to the date of this hearing. Holiday pay[42]The tribunal accepted the claimant had, as at the date of termination of employment, accrued and not used two weeks’ of annual leave. The claimant was not paid for these holidays. The tribunal made an award in the sum of £963 (gross).