Miss C Wilson v The Nail & Beauty Zone Ltd and Pure Spa & Beauty: 4105990/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4105990/2022
Between
Miss Charlene WilsonClaimantThe Nail & Beauty Zone LtdRespondent
Before
Employment Judge B BeyzadeMr R Bright for claimantLay representative for claimant(claimant’s partner) for claimantDate 27 March 2024
JUDGMENT
[1]The judgment of the Tribunal is that: 1.1. The claimant’s complaints of breach of contract (notice pay) and wrongful dismissal are not-well founded and they are hereby dismissed.
REASONS
Introduction
[2]The claimant presented a complaint of unfair dismissal, direct disability discrimination, discrimination arising from disability, arrears of pay (statutory sick pay) and breach of contract (notice pay) and wrongful dismissal, which the respondent denied.[3]A Preliminary Hearing was held on 11 August 2023 before Employment Judge M Kearns, following which Judgment was issued to parties on 17 August 2023 dismissing the claimant’s complaints of disability discrimination and arrears of pay (statutory sick pay). In addition, the Tribunal concluded that the claimant did not have sufficient qualifying service to claim unfair dismissal and that the Tribunal has no jurisdiction to hear such a claim.[4]The claimant’s complaints for breach of contract (notice pay) and wrongful dismissal were therefore the only remaining complaints before the Tribunal.[5]A Final Hearing was listed on 14 November 2023. This was a hearing held by Cloud Video Platform (“CVP”) video hearing pursuant to Rule 46 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. I was satisfied that the parties were content to proceed with a CVP hearing, that it was just and equitable in all the circumstances, and that the participants in the hearing were able to see and hear the proceedings.[6]The parties prepared and filed a Joint Inventory and File of Productions in advance of the hearing consisting of 122 pages.[7]At the outset of the hearing the parties were advised that the Tribunal would investigate and record the following issues as falling to be determined, both parties being in agreement with these (having held detailed discussions with parties in relation to the issues at the start of the hearing):(i) What was the claimant’s notice period? Parties agreed that the claimant’s contractual notice period was one month (£798.00 gross pay), that her hourly rate of pay was £9.50 before tax and national insurance were deducted and that the claimant’s normal weekly working hours were 21 hours per week.(ii) Was the claimant paid for that notice period? It is not disputed that the claimant was not paid for that notice period.(iii) Was the claimant asked to work any period of notice, did she work her period of notice, and if not, why not?(iv) Was the claimant guilty of gross misconduct? Did the claimant do something so serious that the respondent was entitled to dismiss without notice? The respondent contends that the claimant breached the confidentiality provisions in her contract of employment by sharing a confidential letter addressed to her from the respondent with her colleagues.[8]The claimant gave evidence at the hearing on her own behalf and Miss T Zaheer, Spa Manager PURE Silverburn and the claimant’s line manager gave evidence on behalf of the respondent. A written statement was filed by the respondent on behalf of Miss T Zaheer, Spa Manager.[9]The claimant was represented by Mr R Bright, lay representative and the claimant’s partner, and the respondent was represented by Mr M Lumsden, Director of the respondent.[10]Both parties made closing submissions.
Findings of Fact
[11]On the documents and oral evidence presented the Tribunal makes the following essential findings of fact restricted to those necessary to determine the list of issues –
Background
[12]The claimant was employed by the respondent as a Spa & Beauty Therapist between 03 January 2022 and 14 October 2022.[13]The respondent, The Nail & Beauty Zone Ltd, is a private limited company which has its registered office at Pure Spa & Beauty, 134 Rose Street, Edinburgh, EH2 3JD. Claimant’s terms of employment[14]The claimant’s statement of terms of employment dated 01 January 2022 indicated that her start date was 03 January 2022, and that the claimant’s place of work was in Silverburn.[15]The claimant’s pay was £9.50 per hour payable in monthly instalments on or before the last working day of the month.[16]Although the claimant’s contract of employment stated that she will be rostered to work 24 hours per week, in fact, the claimant’s normal working hours were 21 hours per week.[17]The claimant’s contract of employment stated under the heading of confidentiality: “While you are employed by the Company, you will have access to and may be entrusted with information that is or may be secret or confidential. You must not disclose secrets or confidential information except:• Where required in the proper course of your duties, or• Where disclosure is permitted under the Public Interest Disclosure Act 1998. Apart from circumstances 1 and 2 above you must not disclose to any person or make use of or permit to be used in any way any trade secret or any other confidential information received or made by you in the course of your employment or in connection with your employment concerning:• The finances or transactions of the Company,• any business or activity carried on by the company,• any plans or proposals regarding any business or activity to be carried on by the Company,• the business or activities of any persons on whose behalf the Company supply any goods or services to the public,• the personal details and transactions of customers of the Company These restrictions apply during the time you work for us and at any time after your employment with us comes to an end.”[18]The claimant’s contract of employment stated that the claimant was entitled to receive from the respondent one month’s notice in writing of the termination of her employment, following her probation period. The claimant’s probation period had ended on 03 April 2021.[19]The termination provisions within the claimant’s contract of employment also stated: “If your employment is terminated for reasons of a disciplinary nature or act of gross misconduct, you will receive one week's notice of termination of employment which will override the above requirement for notice and is regardless of length of service with the company. There are certain acts that the company regards as gross misconduct where you could be summarily dismissed with no notice period. These are detailed in the Company Manual and include theft, deliberate failure to attend for work, deliberate negligence of duties and verbal or physical abuse to any party connected with the Company.” Claimant’s line manager[20]Until July 2022 the claimant’s line manager was Ms C Lennon. From July 2022, Miss Zaheer was the claimant’s line manager. Claimant’s sickness absence[21]Following a period of sickness absence in September 2022, the claimant provided a fit note to the respondent. Accordingly, the claimant expected to be paid Statutory Sick Pay in her September 2022 salary payment. She did not receive her payment in respect of Statutory Sick Pay as expected in her salary payment (which was due to be paid on 30 September 2022).[22]The claimant returned to work on 11 October 2022. Meeting on 11 October 2022[23]Miss Zaheer scheduled a meeting with the claimant on 11 October 2022. The claimant noticed that her calendar was blocked off for 1 hour by Miss Zaheer on that day.[24]When the meeting time had arrived, Miss Zaheer met the claimant, took her to her office and asked how the claimant was feeling. The claimant explained that she was annoyed in terms of everything that had been taking place. Miss Zaheer stated that she understood this.[25]Miss Zaheer advised the claimant that the investigation in relation to her attendance had been concluded, that it was not good news, and that the respondent had decided to terminate her employment. She advised the claimant that she had sent her a letter of termination by email.[26]The claimant read the letter of termination dated 11 October 2022 on her mobile telephone during the meeting. That letter, a copy of which is provided at page 115 of the File of Productions was marked “strictly private and confidential” and the opening line of the letter stated, “As discussed, sadly, I must inform you that your position at PURE is being terminated, giving one month’s notice of termination of your employment.”
Relevant law
[27]That letter further advised: “Since starting in the role of therapist at PURE your job performance, attendance and behaviours have been consistently under the standard expected for a PURE employee, and unfortunately, we do not wish to continue with your employment with the company.”[28]It was further stated that the claimant had within the last 26 weeks worked 47 days and had 32 days’ sickness absence (sickness rate of 68%) which was not acceptable to the respondent, that the claimant’s absences had been sporadic, for many different reasons, and contributed to the respondent being unable to rely on the claimant in terms of her ability to attend work. It was explained that this caused the respondent to lose revenue and added to unacceptable burdens on other staff (and cancelled client bookings). In addition, the letter advised that the claimant’s performance was poor and key performance indicators data was provided in support of the respondent’s position in respect thereof.[29]In the same letter the claimant was notified that she was required to take any accrued holidays during her one month notice period. However, it was recorded that the claimant had 72 hours accrued holiday to take from the start of the holiday year until her leaving date of 10 November 2022 (all of which she had taken previously).[30]In addition, the letter advised that the claimant was also required to return any property belonging to the respondent.[31]Having read the letter of 11 October 2022, the claimant became emotional and upset. She asked if she could go outside and compose herself, and Miss Zaheer agreed to the claimant’s request. Miss Zaheer waited for the claimant to return in order to conclude the meeting. However, the claimant had left the workplace, and the meeting did not continue. Events after the meeting on 11 October 2022[32]At 1.10pm that day, the claimant advised her colleague, a receptionist known as Jenna by way of a WhatsApp message that her employment had been terminated. The claimant’s colleague enquired about what Miss Zaheer had said to her. The claimant sent a screenshot of the letter dated 11 October 2022 by WhatsApp to her colleague on the same day at 1.57pm. That letter was sent to the claimant’s colleague, Jenna bearing the claimant’s caption “Just so u all know y I’m being sacked!” As her colleague commented that the letter was blurry, the claimant re-sent a further copy of the screenshot of the letter to her at 2.04pm that day.[33]Two other members of staff who were beauty therapists were also provided with a copy of the letter of 11 October 2022 by the claimant on the same day.[34]One of the Beauty Therapists known as Jessica came into Miss Zaheer’s office later that day to advise that the claimant had sent her a WhatsApp message, which included a screenshot of Miss Zaheer’s letter dated 11 October 2022 (which was marked “strictly private and confidential”). In addition, other members of staff had advised Miss Zaheer that they had received of copy of the same letter from the claimant by way of a WhatsApp message. Correspondence after the meeting on 11 October 2022[35]By letter dated 12 October 2022 the claimant was invited to attend a meeting with Miss Zaheer and Ms S Cairney, Regional Manager to discuss the following matters which occurred after the claimant was notified by letter dated 11 October 2022 that her employment will be terminated with notice: “After this was given to you, you walked out the spa unannounced and shared the letter around other staff members which is in breach of your employment contract. Both acts are considered gross misconduct subject to company disciplinary processes which could result in summary dismissal from the company.”[36]The letter stated that as the claimant remained an employee of the respondent, and she was required to make every effort to attend the meeting which was due to take place on 13 October 2022 at 1.00pm.[37]The claimant sent an e-mail dated 13 October 2022 at 12.07pm advising that she authorises Mr R Bright as her current representative in terms of contact, that under the advice of her GP (the claimant referred to the fact that she was suffering from depression) she must ask for any direct contact with herself to be halted, and further that, if the respondent felt the need to respond to the letter attached to that email they should direct all contact to Mr Bright.[38]A letter was provided by Mr Bright dated 13 October 2022 on his company headed paper advising that the claimant was not given sufficient notice of the meeting on 13 October 2022, and explaining that in relation to the meeting on 11 October 2022, “After reading the letter Miss Wilson asked Thara Zaheer if she was to leave the business immediately and Thara Zaheer confirmed this to be correct. Miss Wilson gathered her personal belongings and left the premises as advised.”[39]The letter also referred to an email from the respondent advising that the claimant’s Statutory Sick Pay relating to September 2022 would not be honoured as it was not believed that the claimant experienced workplace stress despite confirmation from her GP and a prior payment being made in August 2022.[40]The letter pointed out that the claimant did not have any performance related discussions with management and that she had been praised on multiple occasions for her efforts. It was suggested that after the claimant had raised issues with her sick pay, the respondent had terminated her employment due to poor performance and behaviours. The letter made reference to the claimant’s health, it indicated that the claimant required all contact with the claimant to be made in writing to avoid any further discrepancies, and that the claimant had been in contact with an employment solicitor.[41]The claimant was sent a letter dated 14 October 2022 advising that the outcome of the respondent’s investigation of the three issues were as follows: “• In response to your grievance concerning the payment of SSP in September we agree to pay you SSP for the day’s sickness covered by a fit note signed by a doctor. The payment will be made in our next pay run at the end of this month.• In response to the unauthorised absence where you left work mid shift, the version of events differs considerably between what you have reported versus the account provided by your colleagues who were present. However, given the circumstances we are prepared to accept that there may have been a misunderstanding around the notice which had been given and the requirement for you to work your notice period. On this issue there is no disciplinary action taken.• In response to the disclosure to work colleagues at Silverburn by you of a private and confidential document, which was clearly headed ‘Strictly Private and Confidential’ and addressed only to you, we note that your letter does not refer to this disciplinary matter. In the absence of any explanation or denial from you on this breach of your employment contract, we assume on balance of probability that you intentionally committed this breach.”[42]The letter quoted the confidentiality provisions within the claimant’s contract of employment. Thereafter, it was concluded that the respondent considered the claimant’s breach of confidentiality to be both serious and deliberate, and that they could not see any reason why the claimant needed to share the letter with her colleagues “…leaving us to believe it was done with malicious intent, hoping to cause dissent and unrest amongst other members of the team.”[43]The letter further advised that: “As a result, after consideration of this serious employment contract breach, we regret to inform you that your employment with PURE Spa & Beauty is now terminated for reason of gross misconduct. Your final date of employment is 14 October 2022.”[44]Mr Bright sent an email to Mr Lumsden on 14 October 2022 setting out a number of points of dispute on behalf of the claimant, including but not limited to an explanation in terms of why the claimant’s letter of termination was disclosed. He stated that it was expected that the claimant’s sick pay would be paid before close of business that day, that the claimant received advice from an employment solicitor and would be proceeding to an Employment Tribunal.[45]The claimant’s employment ended on 14 October 2022.[46]The claimant started ACAS Early Conciliation on 11 October 2022 and the ACAS Early Conciliation Certificate was issued on 25 October 2022.[47]The claimant presented her claim to the Tribunal on 11 November 2022. Observations[48]On the documents and oral evidence presented the Tribunal makes the following essential observations on the evidence restricted to those necessary to determine the list of issues –[49]The Tribunal observed that in terms of the witness evidence it heard, different witnesses were able to assist with or comment on specific aspects of this case. The documentary evidence and the correspondences in the File of Productions was informative in terms of explaining the key events that took place which were not in dispute including the claimant’s terms of employment and the correspondences between 11 and 14 October 2022. Where there was a conflict of evidence, the Tribunal made findings of fact on the balance probabilities based on the documents, and having considered the totality of the witness evidence, and accepted the evidence that set out the position most clearly and consistently.[50]I found that Miss Zaheer’s explanation of what happened during the meeting between her and the claimant on 11 October 2022 after the claimant had read the letter of 11 October 2022 on her mobile telephone to be credible and consistent. The respondent sent a letter to the claimant on 12 October 2022 to address (in addition to the breach of confidentiality matter) the issue of the claimant leaving the workplace on the previous day. It was not clear from the claimant’s email dated 13 October 2022 why the claimant had left the spa and whether this as related to ill health (albeit a letter was sent from the claimant’s partner dated 13 October 2022 seeking to provide an explanation in terms that the claimant left after Miss Zaheer confirmed that she had to leave the business immediately). The claimant’s oral evidence was “I said to Thara what does that mean that I have to go? To which her reply was yes. At that point I just left the office and collected my belongings and went.” I considered the account provided of the meeting on 11 October 2022 by the claimant in her oral evidence and compared this with the content of the letter from the claimant’s partner dated 13 October 2022.[51]In addition, I noted that the claimant’s oral account of events relating to what happened after the meeting on 11 October 2022 was not consistent with the contemporaneous documents. The claimant stated in her oral evidence that she thought she had sent a partial screenshot of Miss Zaheer’s letter dated 11 October 2022 to her work colleague.[52]Additionally, the claimant stated that she had showed the letter dated 11 October 2022 to the two Beauty Therapists, but one of the therapists, Jessica had told Miss Zaheer that the letter was sent to her by way of a WhatsApp message. The claimant’s caption on the WhatsApp message sent to the receptionist stated ““Just so u all know y I’m being sacked!” This suggests that the claimant sent a copy of the letter by way of a WhatsApp message to employees other than the receptionist.[53]The claimant confirmed in her oral evidence that she did not believe that she disclosed the letter of 11 October 2022 because she was required to do so in the proper course of her duties, and further, that she had not disclosed that letter pursuant to the provisions of the Public Interest Disclosure Act 1998 (“PIDA”).[54]In relation to whether the claimant believed she had breached the confidentiality provisions within her contract of employment by disclosing the letter dated 11 October 2022 to her colleagues, which the claimant was asked about during cross examination, the claimant replied, “at the time, no”. The claimant accepted that she did not disclose the letter of 11 October 2022 in the proper course of her duties or pursuant to PIDA. Following the claimant’s response, the claimant was asked whether based on the fact that she accepted that she did not disclose the letter of 11 October 2022 in the proper course of her duties or pursuant to PIDA, the claimant agreed that she was in breach of the confidentiality provisions in her employment contract, and in response to which, the claimant replied “yes”.[55]As the letter dated 11 October 2022 was marked “strictly private and confidential”, it was difficult to decipher why the claimant had disclosed the letter in question to her colleagues, taking into account the explanation provided in the claimant’s partner’s email dated 14 October 2022, taking account of the circumstances. Relevant law To those facts, the Tribunal applied the law –[57]In terms of the claimant’s contract, the starting point is that contracts of employment which give rise to the entitlement to pay (or notice pay) are a matter of contract: based upon an agreement between the parties, employer, and employee, although it is recognised that those two parties rarely have the same bargaining power. Many forms of employment protection have been established by Parliament over the years to ensure that employers deal properly and in accordance with minimum contractual entitlements with their employees. In short, employers will not be acting lawfully if they act on a unilateral basis. The statutory provisions dealing with the relevant employment protection rights are set out in the Employment Tribunals Act 1996, at Section 3 read with the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624 for the breach of contract (notice pay) complaint. The Tribunal had regard to its overriding objective at Rule 2 of the Employment Tribunals Rules of Procedure 2013 to deal with cases fairly and justly.[58]In relation to her complaint of notice pay, the claimant relies on the relevant contractual provisions (set out in the findings of fact above).[59]The respondent did not give notice to the claimant following her dismissal with immediate effect on 14 October 2022. It has the onus of proving that it was entitled to do so on account of the repudiatory breach of contract by the claimant. The standard of proof in that regard is the balance of probabilities. If the respondent does not discharge the onus the claimant succeeds in her claim for breach of contract. These principles were confirmed, if that be needed, in the EAT in Hovis Ltd v Louton EA-2020- 00973. An entitlement to a minimum period of notice is established in section 86 of the Employment Rights Act 1996 and is for one week of notice for each year of continuous employment up to a maximum of 12 weeks.[60]Wrongful dismissal is dismissal in breach of contract. Fairness is not an issue. The sole question is whether the terms of the contract, which can be express or implied, have been breached by the employer. The employee will have a claim in damages if the employer, in dismissing them, breached the contract and caused them loss.
Conclusion
[61]Dismissing an employee without notice may be justified where the employee has committed a repudiatory breach of contract. An employer has a choice whether to accept the repudiatory breach or whether to affirm the contract. Where the employer decides to terminate the contract, then they have accepted the repudiatory breach by the employee. The question of what level of misconduct is required for an employee’s behaviour to amount to a repudiatory breach is a question of fact for the court or Tribunal.[62]The classic exposition of the concept of repudiatory breach of an employment contract was by Lord Evershed in Laws v London Chronicle (Indicator Newspapers Limited) [1959] 285 at 287 where he set the question out as being “whether the conduct complained of is such as to show the servant has disregarded the essential conditions of the contract of service”.[63]More recently, this was put in another way, namely whether the conduct “so undermines the trust and confidence which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee in his employment” – Neary v Dean of Westminster [1999] IRLR 288.[64]Rule 41 of the Employment Tribunal Rules provides that Employment Tribunals are not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts. In the circumstances, hearsay or documentary evidence, or other types of evidence, of whatever nature, are not, as such, inadmissible, and if such evidence is sufficiently relevant to what the Tribunal has to decide, then it can be considered. However, the assessment of such evidence by a Tribunal faced with a wrongful dismissal claim, involves particular considerations, Hovis Limited v Louton UK EAT 2020-000973-LA, per HHJ Auerbach at para 25 – 27, namely:• Is it reliable?• Is it credible?• How much weight should be attached to it?• To what extent is the hearsay account capable of being tested?• What is the nature of the written record kept?[65]In Jagex Limited v McCambridge [2020] IRLR 187, EAT the claim arose out of the employee's dismissal for disseminating confidential information that he came by when a fellow employee's salary details were found by him on a printer and which he then discussed internally with other employees. As HHJ Mary Stacey said, upholding the Tribunal's decision that the employee had not acted in repudiatory breach of contract: ''If we step back a little from the detailed analysis of individual words in the contract, what has happened here is that an employee of the Respondent, Mr Muddasir, has inadvertently left details of his own salary on the office printer, which was embarrassing for the Respondent when the details became known about in the office.''[66]In determining whether an employee is entitled to be paid for a period during which they have not worked, the terms of the contract are the starting point. As Lord Justice Coulson said in the case of North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, [2019] IRLR 570: ''the starting point for any analysis of [whether the employer is entitled to withhold pay] must be the contract itself… Was a decision to deduct pay for the period [in question] in accordance with the express or implied terms of the contract?”[67]In the case of Gregg, Coulson LJ went on to say this: “If the contract did not permit deduction then… the related question is whether the decision to deduct pay for the period… was in accordance with custom and practice. If the answer to both these questions is in the negative, then the common law principle – the “ready, willing and able” analysis… falls to be considered.'' Submissions Respondent’s submissions[68]Both Mr Bright and Mr Lumsden made oral submissions, which I found informative and fully considered prior to reaching my decision.[69]Mr Lumsden submitted that the claimant was initially, on 11 October 2022, provided with one month’s notice of termination of employment in line with her contract of employment, and she had walked out of the meeting with Miss Zaheer (and did not return). He also said that on the same day the claimant had breached the confidentiality clause in her employment contract by sharing the letter of 11 October 2022 received from the business marked “strictly private and confidential” and she admitted that she had breached her contractual confidentiality obligations in cross examination. He pointed out that the claimant did not attend the meeting on 13 October 2022 and failed to provide any written explanation in respect of her conduct regarding the alleged breach of her confidentiality obligations. The respondent, he submits, therefore were entitled to take the view that they had the right to dismiss the claimant for gross misconduct in accordance with the provisions of her contract of employment.[70]In the alternative, he argued that if the Tribunal did not find that the claimant’s actions amounted to gross misconduct, the Tribunal should award one week’s notice pay on the basis that the termination provisions in the claimant’s contract of employment stipulate this in the event that an employee’s employment is terminated for reasons of a disciplinary nature. Claimant’s submissions[71]Mr Bright submitted that the claim for notice pay should succeed and that the initial termination of the claimant’s employment on 11 October 2022 was unfair. He pointed out that there was no dialogue from the respondent in terms of the claimant’s attitude, behaviour, or performance prior to the termination of her employment. He also referred to the key performance indicators being incorrect and the fact that at least four holiday dates of the claimant were counted as sick days in error (which would have inflated the respondent’s figures).[72]Mr Bright said that after the 11 October 2022 meeting, the claimant was not contacted by the respondent and requested to return to work, and that the letter of termination of the claimant’s employment did not expressly state that the claimant was required to work during her notice period. He stated that the claimant experienced mental health issues following the 11 October 2022 meeting.[73]Mr Bright also stated that the claimant did not dispute that what she had done (in terms of sharing the letter dated 11 October 2022 with her colleagues) could be classed as a disciplinary breach. He explained that the claimant conceded that having been provided with details of the relevant provisions of her contract, she believed that sending the letter in question to her colleagues was an error. He explained that at the time, the claimant believed the information she was divulging was personal to her, that she was entitled to and able to disclose this to her colleagues, and that there was no malice intended on her part. He stated that the WhatsApp messages show that the letter was sent to her work colleagues and friends, and that it was not sent with a view to incite unrest. Respondent’s submissions in reply[74]In terms of the respondent’s reply, Mr Lumsden stated that the claimant’s representative appeared to be focussing his submissions on points that might be relevant to an unfair dismissal claim, which was dismissed at the Preliminary Hearing in August 2023. Mr Lumsden did not believe that that certain parts of Mr Bright’s submissions were relevant, and he submitted that if the claimant’s unfair dismissal complaint was being heard at today’s hearing, it would have been a completely different type of hearing. Discussion and decision[75]On the basis of the findings made the Tribunal disposes of the issues identified at the outset of the hearing as follows –[76]I considered the claimant’s complaint in respect of breach of contract arising from non-payment of her notice pay.[77]As a matter of contract, the relevant provisions of which are set out in the findings of fact above, in the event that the respondent terminated the claimant’s employment they were normally required to provide one month’s notice whereas the claimant could be dismissed from her employment for an act of gross misconduct without notice.[78]The respondent dismissed the claimant by a letter dated 11 October 2022, giving one month’s notice of termination of the claimant’s employment. The letter indicated that the claimant’s leaving date was 10 November 2022. The claimant was advised that her job performance, attendance, and behaviours had been consistently under the standards expected of the respondent’s employees and data was provided in support of the respondent’s decision. The claimant disputed some of the data.[79]The claimant’s representative submitted that the termination of the claimant’s employment was unfair. I have reminded myself that the fairness of the claimant’s dismissal is not in issue in the context of a breach of a wrongful dismissal complaint. The sole question is whether the terms of the contract, which can be express or implied, have been breached by the employer.[80]Taking into account all the circumstances, including but not limited to the respondent’s reasons for dismissal and the claimant’s position in relation to some of the data that was relied on by the respondent being incorrect, I do not find that the claimant’s dismissal on 11 October 2022 with one month’s notice was in breach of contract or that this amounted to wrongful dismissal.[81]Thereafter, by letter dated 14 October 2022 the claimant was advised that her employment had been terminated by reason of gross misconduct and that, accordingly, her final date of employment would be 14 October 2022.[82]Firstly, in respect of the claimant’s alleged unauthorised absence, it was accepted that there may have been a misunderstanding around the claimant’s notice which had been given and the requirement for the claimant to work her notice period. As a result, the respondent decided not to take any disciplinary action against the claimant in respect of this matter.[83]Secondly, the respondent determined that the claimant had failed to provide any explanation or denial in terms of the breach of her contract of employment with regards to the claimant’s disclosure of the respondent’s letter dated 11 October 2022 to her work colleagues which was marked “strictly private and confidential” and addressed to the claimant only. The respondent stated that in the absence of any explanation or denial, it was assumed that on the balance of probabilities the claimant intentionally committed that breach.[84]The letter dated 14 October 2022 sets out the relevant confidentiality provisions within the claimant’s contract of employment, which are recorded in the findings of fact above.[85]Whilst there is no definition of information that is or may be “confidential” or “secret” in the claimant’s contract of employment, the letter dated 11 October 2022 was marked “strictly private and confidential” and it was addressed to the claimant only. There was no explanation provided in relation to the claimant’s disclosure of the letter dated 11 October 2022 to her colleagues in either her email dated 13 October 2022 or in her partner’s letter sent on her behalf dated 13 October 2022.[86]Although this was sent after the respondent’s decision was made to dismiss the claimant for gross misconduct, Mr Bright’s email dated 14 October 2022 states, “You claim Miss Wilson sharing her termination letter is a breach of confidentiality, yet the only information provided on this letter are details personal to Miss Wilson and as such her information to disclose as she sees fit.” Although it is not clear from the content of the email, I have assumed that Mr Bright was seeking to provide the claimant’s explanation based on instructions he had received from the claimant. In any event that email did not address the issue in terms of whether there was a breach of the claimant’s confidentiality obligations by reference to the provisions of the claimant’s contract.[87]The claimant confirmed in oral evidence that she did not believe that she was in breach of her confidentiality obligations with regards to the provisions of the claimant’s contract at the time she disclosed the letter dated 11 October 2022 to her colleagues. The claimant said in oral evidence that she believed that the letter was private and confidential to herself and that she did not see it as confidential to the workforce as it contained her private information.[88]It was not clear why the claimant did not provide an explanation in those terms to the respondent either in her email dated 13 October 2022 or in the claimant’s partner’s correspondence dated 13 October 2022.[89]In any event, I noted that the details provided in this letter included the respondent’s reasons for terminating the claimant’s employment, data that the respondent relied upon (including absence and performance information), details of the arrangements relating to termination of the claimant’s employment (notice period, annual leave, return of company property, and the claimant’s leaving date), and in addition, the claimant’s targets, including with respect to revenue targets. Although, I accept that taking a step back, some of this information was personal data relating to the claimant, and whilst the claimant’s performance data and targets (and the reasons for termination of her employment) may have been personal to her, there was no indication that the claimant was entitled to share this information with her colleagues. I also note the respondent’s reasons in their letter dated 14 October 2022 in terms of why they considered the disclosure of the letter of 11 October 2022 to the claimant’s colleagues and the potential consequences to be serious.[90]In the circumstances, the confidentiality provisions in the claimant’s contract of employment are relevant to the claimant’s disclosure of the letter dated 11 October 2022. I have taken into account the fact that the claimant accepted in her oral evidence that based on the fact that she accepted that she did not disclose the letter of 11 October 2022 in the proper course of her duties or pursuant to PIDA, the claimant agreed that she was in breach of the confidentiality provisions in her employment contract. It was not suggested by the claimant that the information she disclosed to her colleagues did not fall within one of the five further bullet points identified in the contractual confidentiality obligations in terms of the categories of confidential information.[91]In terms of the decision to dismiss the claimant for gross misconduct, the letter of 14 October 2022 concluded that the respondent considered the claimant’s breach of confidentiality to be serious and deliberate and they could see no reason why the claimant would need to share the confidential letter with her colleagues. It was also stated that the claimant was hoping to cause dissent and unrest amongst other members of her team.[92]Mr Bright stated in his closing submissions that the claimant did not dispute that what she had done (in terms of sharing the letter dated 11 October 2022 with her colleagues) could be classed as a disciplinary breach.[93]I reviewed the termination provisions of the claimant’s contract of employment which state that there are certain acts that the company regards as gross misconduct where an employee may be summarily dismissed with no notice period. The contract provides a relatively broad list of categories of what may amount to gross misconduct and refers to the respondent’s Company Manual (a copy of which was not provided within the File of Productions). From the list of categories of gross misconduct provided in the claimant’s contract of employment, Mr Lumsden relies on “deliberate failure to attend for work” and “deliberate negligence of duties”. I do not accept that the respondent is entitled to rely on the claimant’s alleged deliberate failure to attend work or that this amounted to gross misconduct in circumstances in which the respondent chose not to take disciplinary action in respect of this (and where the claimant had reported her health condition in written correspondence on 13 October 2022 and the claimant’s partner had explained in his correspondence why the claimant had left the office on 11 October 2022).[94]However, the information disclosed by the claimant within the letter dated 11 October 2022 fell within the scope of the confidentiality provisions in the claimant’s contract of employment. It was accepted that the claimant did not disclose that letter in the proper course of her duties or in line with the provisions of the PIDA (the only categories of permitted disclosure within the confidentiality provision). The letter was marked “strictly private and confidential”, and the claimant had deliberately disclosed the letter to three colleagues. The respondent was concerned at the material time that the claimant was hoping or attempting to cause unrest in the workplace, and I accept that may have been a possible consequence of the claimant’s actions. Indeed, at least one of the respondent’s employees felt that it was necessary to report to Miss Zaheer the fact that the claimant had sent the letter of 11 October 2022 to her by way of a WhatsApp message. In all the circumstances, the respondent was entitled to rely on the claimant’s “deliberate negligence of duties” (in terms of breach of the claimant’s confidentiality obligations) and that the same amounted to gross misconduct. The category of “deliberate negligence of duties” is specified in the claimant’s contract of employment as an example of gross misconduct.[95]In view of the foregoing, I also accept that the claimant’s breach of her confidentiality obligations amounted to a fundamental breach of contract, in terms of the implied duty of trust and confidence. Accordingly, the claimant’s breach of contract was repudiatory in nature.[96]For the reasons set out above, I find that the respondent has shown that the claimant was dismissed on 14 October 2022 due to gross misconduct. In the circumstances, and pursuant to the provisions in the claimant’s contract of employment, I do not find that the respondent was required to pay the claimant any notice pay by reason that her dismissal was due to gross misconduct.[97]In the circumstances, I make no award in terms of notice pay between 11 October 2022 and 14 October 2022, on the basis that the claimant did not attend work and the claimant communicated the situation with regards to her health (and asked the respondent not to contact her directly) by email dated 13 October 2022. I concluded that the claimant was not ready, willing, and able to attend work during that period of time.[98]Accordingly, the respondent was not in breach of contract in terms of its decision not to pay the claimant notice pay that was communicated to her by letter dated 14 October 2023.[99]In light of the above and foregoing, in my judgment, the claimant was not wrongfully dismissed.[100]For the avoidance of doubt, although section 86 of the Employment Rights Act 1996 provides that an employee is entitled to minimum notice when they are dismissed by an employer, section 86(6) states “This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.” The claimant is not awarded statutory notice pay on the basis that the respondent treated the contract as terminable without notice pay by reason of the conduct of the claimant. I have determined that the respondent was entitled to terminate the claimant’s contract without notice in all the circumstances (for the reasons set out above).[101]For these reasons the complaints of breach of contract (notice pay) and wrongful dismissal fail and they are therefore dismissed. Conclusion[102]The claimant’s complaints of breach of contract (notice pay) and wrongful dismissal are hereby dismissed. B. Beyzade
Conclusion
[1]The judgment of the Tribunal is that: 1.1. The Tribunal directs that the respondent’s Preparation Time Order application as set out in respondent’s Grounds for Preparation Time Order Application (hereinafter defined) be determined on the basis of both parties’ written representations rather than at a hearing. 1.2. The respondent’s application for a Preparation Time Order in terms of Rules 75 and 76 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) is refused.[2]This Judgment follows on the Judgment of the Employment Tribunal in respect of the above parties dated 07 December 2023 which was issued to the parties on 08 December 2023 (“the December 2023 Judgment”). In summary, the decision of the Tribunal in the December 2023 Judgment was that the claimant’s complaints of breach of contract (notice pay) under the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994, Art.3 and wrongful dismissal were unsuccessful following a Final Hearing during which the Tribunal heard and considered evidence on 14 November 2023.[3]Prior to the Final Hearing, a Preliminary Hearing had been held on 11 August 2023 before Employment Judge M Kearns, following which Judgment was issued to parties on 17 August 2023 dismissing the claimant’s complaints of disability discrimination and arrears of pay (statutory sick pay). In addition, the Tribunal concluded that the claimant did not have sufficient qualifying service to claim unfair dismissal and that the Tribunal has no jurisdiction to hear such a complaint.[4]The respondent made an application for a Preparation Time Order against the claimant in terms of Rules 75 and 76 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the ET Rules”) and the basis on which the respondent seeks a preparation time order was set out in the respondent’s email to the Tribunal, with an attachment containing the grounds of the application, dated 04 January 2024 (“Grounds for Preparation Time Order Application”).[5]The Tribunal’s directions sent to the claimant on 06 February 2024 stated “Before the application is considered, you are invited to give reasons in writing by 21 February 2024 why the Order as requested should not be made. In the alternative, if you wish to state such reasons at a hearing you should notify this office by 21 February 2024 and a hearing will then be arranged.”[6]The claimant took up the opportunity to make her own representations in writing and set out the basis on which the claimant resisted the respondent’s application for a Preparation Time Order in the claimant’s email to the Tribunal, with attachments, dated 19 February 2024 (“Preparation Time Order Application Response”).[7]In the Grounds for Preparation Time Order Application the respondent sought a Preparation Time Order on the grounds that the claimant had breached the Tribunal’s orders with respect to providing unredacted medical information, the claimant’s alleged unreasonable conduct in bringing the proceedings, and further, that the complaints that had no reasonable prospects of success. Accordingly, the respondent sought a Preparation Time Order, in relation to their own time spent working on the case. The claimant’s and the respondent’s relative positions and submissions in respect of these grounds on which the respondent sought a Preparation Time Order were set out in the respondent’s Grounds for Preparation Time Order Application and in the Claimant’s Preparation Time Order Application Response respectively.[8]On 22 February 2024 parties were directed to provide any further written representations by 4pm on 21 March 2024 and that thereafter the Tribunal may decide the respondent’s application on the basis of the correspondences received or at a hearing. Taking account of the parties’ representations and the parties’ and the Tribunal’s availability, it would not have been practicable to arrange an oral hearing without unreasonable delay. Neither the claimant nor the respondent indicated that they objected to the consideration of the respondent’s application without a hearing. I was satisfied that the claimant and respondent had been provided with a reasonable opportunity to make representations in writing in relation to the application in terms of Rule 77 of the ET Rules. In the circumstances, I decided that the respondent’s application could be determined on the basis of the claimant’s and the respondent’s written representations, and that an oral hearing was unnecessary. Issue for determination[9]The issues before the Tribunal for determination were whether or not the respondent’s application for a Preparation Time Order against the claimant as set out in respondent’s Grounds for Preparation Time Order Application was well-founded and, if so, whether or not to make an award of Preparation Time against the claimant, and, if so, on what basis and in what amount, having regard to the information available to the Tribunal. Respondent’s Grounds for Preparation Time Order Application[10]The respondent’s Grounds for Preparation Time Order Application was sent to the Tribunal by email dated 04 January 2024.[11]The application refers to the claimant’s complaints of unfair dismissal, direct disability discrimination, discrimination arising from disability, arrears of pay (statutory sick pay), breach of contract (notice pay) and wrongful dismissal. The application states that “All the complaints have been dismissed or withdrawn over a series of hearings.”[12]The respondent’s application quotes paragraphs 3 and 4 of the December 2023 Judgment (summarising the outcome of the Preliminary Hearing on 11 August 2023 before Employment Judge M Kearns).[13]The December 2023 Judgment is summarised in terms that “The claimant’s complaints of breach of contract (notice pay) and wrongful dismissal are notwell founded and they are hereby dismissed.”[14]The respondent states that the application is based on the Presidential Guidance General Case Management Guidance Note 7: Costs “which state that a party may be ordered to pay costs or preparation time to the other party where the paying party has breached an order or practice direction, a party has acted vexatiously, abusively, disruptively, or otherwise unreasonably in bringing or defending the proceedings or in its conduct of the proceedings; or the claim or response had no reasonable prospect of success.” Although I note that the Presidential Guidance – General Case Management (Guidance Note 7: Costs) only applies in Employment Tribunal proceedings in England and Wales, the relevant section relied upon (paragraph 13 of Guidance Note 7) reflects the ET Rules in so far as they relate to the grounds for making Preparation Time Orders (considered below).[15]The respondent submits that “the Claimant breached orders of the tribunal with respect to providing unredacted medical information, was unreasonable in bringing the proceedings and that the claims had no reasonable prospect of success.”[16]The following information is provided in relation to the claim for Preparation Time in the total amount of £1600.00: “Preparation and time by Director – Michael Lumsden 35 hours x £40.00 per hour = £1,400.00 Preparation time x Spa Manager–Thara Zaheer 5 hours x £40.00 per hour = £200.00” Claimant’s grounds of objection[17]The claimant provided her Preparation Time Order Application Response by email dated 19 February 2024 sent to the Tribunal at 1.10pm and copied to Mr Lumsden, Director of the respondent (who represented the respondent at the Final Hearing).[18]The claimant stated that she believed that her claim had a genuine chance of success, that all the information she provided was honest and true, and that whilst she was disappointed in terms of the December 2023 Judgment, she respected the decision and did not present an appeal.[19]The claimant explains that the case has brought her an overwhelming amount of stress and that she would not have continued to pursue her claims if she did not believe she was correct to do so.[20]The claimant also states that having received advice from the Citizens’ Advice Bureau, she has been advised to make the Tribunal aware of her financial situation. The claimant advises that due to her employer going into liquidation, she was made redundant at the end of November 2023 and she is currently seeking new employment. A copy of the notice of termination dated 24 November 2023 is attached to the claimant’s email.[21]The claimant invites the Tribunal to consider her current financial situation in the event that if the Tribunal finds that a Preparation Time Order is required. Respondent’s further submissions[22]Mr Lumsden, on behalf of the respondent, sent an email to the Tribunal dated 07 March 2024 at 11.45pm setting out the respondent’s further written representations.[23]With regard to the claimant not being in employment since the end of November 2023, he states that there is a shortage of Spa and Beauty therapists in the UK and in Glasgow with many jobs available, and that if the claimant had been unable to secure new employment, it is not because there were no available and suitable jobs.[24]In relation to the claimant’s position that her claim had a genuine chance of success and all information she provided was honest and true, the respondent states “…we refer the Judge to the judgment of the Tribunal that “The claimant’s complaints of breach of contract (notice pay) and wrongful dismissal are not-well founded and they are hereby dismissed.” It is further stated, “The Claimant proceeded with multiple claims of unfair dismissal, direct disability discrimination, discrimination arising from disability, arrears of pay (statutory sick pay) and breach of contract (notice pay) and wrongful dismissal”. All of the claims failed.”[25]The respondent points out that the claimant was represented in relation to her claims by her partner who operates a debt collection agency in Glasgow and who had the ability to research the circumstances and legal basis in which such claims could be successful.[26]In response to the claimant stating that all information she provided was honest and true, the respondent draws the Tribunal’s attention to paragraphs 51 to 54 of the December 2023 Judgment. It is submitted that those paragraphs draw into question the honesty and truth of the statements made in the claimant’s claim and in the claimant’s evidence.
Relevant law
[27]According to Rule 74 of the ET Rules:(1) “Costs” means fees, charges, disbursements or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing). In Scotland all references to costs (except when used in the expression “wasted costs”) shall be read as references to expenses.(2) “Legally represented” means having the assistance of a person (including where that person is the receiving party’s employee) who— (b) is an advocate or solicitor in Scotland; or…[28]Rule 75 of the ET Rules sets out the definition of costs orders (expenses orders in Scotland) and preparation time orders: “75.—(1) A costs order is an order that a party (“the paying party”) make a payment to— (a) another party (“the receiving party”) in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative; (b) the receiving party in respect of a Tribunal fee paid by the receiving party; or (c) another party or a witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at the Tribunal.(2) A preparation time order is an order that a party (“the paying party”) make a payment to another party (“the receiving party”) in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing.(3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings. A Tribunal may, if it wishes, decide in the course of the proceedings that a party is entitled to one order or the other but defer until a later stage in the proceedings deciding which kind of order to make.”[29]Rule 76 of the ET Rules sets out the test to be applied by the Tribunal in considering whether to grant an application under Rule 75: “76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success; [or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins].(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.”[30]Rule 77 of the ET Rules sets out the procedure for making an application for a costs order and the Tribunal’s determination of the same: “77. A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.”[31]Rule 84 of the ET Rules provides that: “84. In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.”[32]The grounds for making an expenses order and a Preparation Time Order under Rule 76(1)(a) and (b) of the ET Rules are the same.[33]The principle in the ET Rules is that an expenses award does not follow success as they do in civil proceedings in the ordinary courts outside the Employment Tribunal context. Rather, the Employment Tribunal has power to make awards of expenses and Preparation Time Orders in the circumstances set out in the ET Rules.[34]In the case of Yerrakalva v Barnsley Metropolitan Borough Council and another [2012] LC.R. 420, at paragraph 7 of the report of Mummery LJ’s judgment in the Court of Appeal it was stated that “The employment tribunal’s power to order costs is more sparingly exercised and is more circumscribed by the employment tribunal’s rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the employment tribunal costs orders are the exception rather than the rule. In most cases the employment tribunal does not make any order for costs. If it does, it must act within rules that expressly confine the employment tribunal’s power to specified circumstances ...”.[35]In Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117, EAT, Mr Justice Burton, then President of the EAT, expressed the view that the reason why costs orders are not made in the substantial majority of Employment Tribunal cases is that the Employment Tribunal Rules of Procedure contain a high hurdle to be surmounted before such an order will be considered.[36]In Hossaini v EDS Recruitment Ltd (trading as J & C Recruitment) and another [2020] LC.R. 491 the then Her Honour Judge Eady QC (now Mrs Justice Eady, President of the EAT) said (at paragraph 64), “It is common ground that there are three stages involved in the determination of a costs application:(1) the ET needs to determine whether or not its jurisdiction to make a costs award is engaged—here, whether the circumstances provided by Rule 76(1) existed; if so,(2) it must consider the discretion afforded to it by the use of the word “ may ” at the start of that rule and determine whether or not it considers it appropriate to make an award of costs in that case; only then would it turn to question (3), that is to determine how much it should award."[37]When determining whether or not a party’s conduct should be considered ‘unreasonable’, the word should be given its ordinary English meaning and is not to be interpreted as if it means something similar to ‘vexatious’ – see the unreported case of Dyer v Secretary of State for Employment (UKEAT 183/83).[38]In the case of National Oilwell Varco (UK) Limited v Mr Jonathan Van De Ruit UKEATS/0006/14/JW, The Honourable Lady Stacey referring to the Dyer v Secretary of Statement for Employment case stated “I am perfectly content to proceed on the basis that unreasonably is construed simply as a word in the English language. Therefore one has to ask whether this particular litigant acted unreasonably or rather, more accurately, one has to ask if EJ Hosie was entitled to find that this particular individual did not act unreasonably, taken overall.” In that case the Employment Appeal Tribunal upheld the Tribunal’s decision refusing to make an award, holding that the claimant had not acted unreasonably in circumstances in which the claimant withdrew all claims the day before a Pre-Hearing Review at which time bar and disablement were to be discussed (the claimant was concerned that despite having a case which was arguable, he might have lost his case and been ordered to pay expenses).[39]As HHJ Auerbach noted in Radia v Jefferies International [2020] IRLR 431: “61. It is well-established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with r 78. … [Original emphasis].”[40]HHJ Auerbach considered the overlap between a claim or response having no reasonable prospect of success and unreasonable conduct: “64. This means that, in practice, where costs are sought both through the r 76(1)(a) and the r 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?”[41]Rule 2 of the ET Rules states that: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense.” Discussion and decision[42]The Tribunal will address the respondent’s application under Rules 75 and 76 of the ET Rules relating to the substantive complaints.[43]The submissions from the respondent in relation to the application under Rules 75 and 76 of the ET Rules do not specifically address the test that needs to be met for an award of Preparation Time to be made. The respondent makes various assertions about the substantive complaints in their submissions but it is not expressly said or set out in any detail how these matters satisfy the relevant tests in Rule 76 of the ET Rules.[44]In relation to the December 2023 Judgment I consider that the respondent has fallen into the error of assuming that an award in respect of Preparation Time follows success which is not how Preparation Time Orders are dealt with in the Employment Tribunal. However, I also recognise that the respondent is not legally represented and so I have taken this into account when addressing the respondent’s application under Rules 75 and 76 of the ET Rules.[45]To the extent that the respondent relies on Rule 76(1)(a) in respect of the application relating to the substantive complaints, I consider that the various points made by the respondent do not establish that the claimant or her representative had acted “vexatiously, abusively, disruptively or otherwise unreasonably” in bringing the relevant complaints or the way the proceedings relating to those complaints were conducted. This test requires more than the claimant simply being unsuccessful and nothing which has been asserted by the respondent can be said to establish that the bringing of the complaints or the conduct of them falls within the scope of Rule 76(1)(a) of the ET Rules.[46]Similarly, the Tribunal does not consider that the respondent has established that the threshold for an award of Preparation Time under Rule 76(1)(b) of the ET Rules had been crossed. Again, although the claimant was unsuccessful in terms of her complaints, the Tribunal does not consider that the assertions made by the respondent in their submissions demonstrate that the relevant complaints had no reasonable prospects of success.[47]In relation to the specific complaints, the Tribunal would make the following comments in respect of each complaint.[48]In respect of the arrears of pay complaint (being payment of statutory sick pay), it is worth noting that it was the respondent’s own case in their ET3 Form was that no further payment were owed to the claimant. Paragraph 14 of the Reasons within Employment Judge M Kearns’s Judgment dated 17 August 2023 records that “The amounts of SSP due to the claimant were paid to her in full at an earlier stage in the proceedings and the claim for SSP has been withdrawn and is accordingly dismissed.” The claimant’s representative confirmed that the claimant had now been paid, and that claim was withdrawn (which was an acknowledgment that the claimant’s complaint in respect of SSP payments could not be pursued in circumstances in which she had now received payment). The claimant’s withdrawal of her complaint in those circumstances cannot be described as unreasonable.[49]Having considered the evidence before the Tribunal at the Preliminary Hearing (including the documentary evidence before the Tribunal) on 11 August 2023, Employment Judge M Kearns concluded that the claimant had not established that she was disabled as defined by the Equality Act 2010 at the relevant time. Accordingly, the claimant’s disability discrimination complaints were dismissed at the first substantive Preliminary Hearing. There was no finding made by the Employment Judge that the complaints had no reasonable prospect of success. In the circumstances, I am unable to conclude that the claimant’s disability discrimination complaints had no reasonable prospects of success nor could it be said that bringing those complaints were unreasonable or otherwise within the scope of Rule 76(1)(a).[50]Given these issues, the Tribunal does not consider that the complaints that were determined within the December 2023 Judgment or any of the complaints (referred to above) within the Judgment of Employment Judge M Kearns dated 17 August 2023 could be said to have had no reasonable prospects of success nor could it be said that bringing those complaints were unreasonable or otherwise within the scope of Rule 76(1)(a).[51]Turning to the unfair dismissal complaint, Employment Judge M Kearns considered that the claimant does not have sufficient qualifying service to make a complaint of unfair dismissal and the Tribunal has no jurisdiction to hear such a complaint. Although it could be argued that the claimant’s unfair dismissal complaint had no reasonable prospect of success on jurisdictional grounds, there is no evidence before me to suggest that the claimant was aware (or ought to have been aware) that the Tribunal did not have jurisdiction to consider her unfair dismissal complaint prior to the hearing before Employment Judge M Kearns. That complaint was dismissed at the first substantive Preliminary Hearing.[52]In terms of the Judgement of Employment Judge M Kearns, the respondent’s representative had provided detailed written representations dated 04 August 2023 on evidential and legal matters, and the Tribunal had considered the evidence before it. At the Final Hearing before me, oral and documentary evidence was considered that were relied upon by both parties prior to reaching a decision.[53]The respondent makes a bald assertion that paragraphs 51-54 of the December 2023 Judgment draws into question the honesty and truth of the statements made in the claimant’s claim and in evidence. There was certainly nothing in the evidence heard by the Tribunal at the Final Hearing that suggested that the claimant did not have a genuine belief in terms of her complaints of breach of contract (notice pay) and wrongful dismissal. The fact that, ultimately, the Tribunal did not consider that the evidence before it allowed the Tribunal to reach a similar conclusion does not, without something more, mean that the claimant was not being honest or truthful or not acting in good faith.[54]It certainly does not mean that the complaints of breach of contract (notice pay) and wrongful dismissal had no reasonable prospects of success or that the claimant bringing those complaints amounted to conduct which falls within the scope of Rule 76(1)(a).[55]These were complaints where evidence was needed to be heard for there to be a determination of whether notice pay was payable, and if so, in what amount. The fact that the evidence, ultimately, established that the claimant was not owed any payment in respect of notice pay does not mean that the complaints had no reasonable prospects of success or that bringing those complaints falls within the scope of Rule 76(1)(a) of the ET Rules.[56]If I were wrong to so conclude, and there were no reasonable prospects of success in respect of any of the claimant’s complaints, I would not have determined that on the evidence before me, that the claimant had in fact known or appreciated that (nor that they ought reasonably, to have known or appreciated that). Mr Lumsden’s submission that the claimant’s partner who operates a debt collection agency in Glasgow and could have conducted research, would not be a sufficient basis for making such a finding. There is no evidence before me to show that the claimant’s partner, who appeared before the Tribunal as a lay representative, had conducted any research (or in terms of whether they had the ability and resources to conduct any such research into employment law and procedure matters), or that they had communicated the same to the claimant.[57]The respondent also submits that the claimant breached the Tribunal’s orders with respect to providing unredacted medical information. Employment Judge M Kearns considered this issue in detail at paragraphs 4, 5, 6 and 7 of her Judgment and Reasons dated 17 August 2023. Whilst I note that the claimant had initially provided partially redacted medical documents, a dispute arose between the parties about the redactions, and the Tribunal ordered the claimant to provide the unredacted medical documents, following which an Employment Judge would decide if the redacted material was relevant to the issue of disability status. Although there was further non-compliance, the claimant’s representative had sent correspondences to the Tribunal explaining the claimant’s reasons for this.[58]Following an application by the respondent for the claimant’s complaints to be dismissed as a result of the claimant’s repeated non-compliance, the unredacted records were provided on the same day as the respondent’s application and the Employment Judge determined that the medical documents in question were potentially relevant to the issues between the parties. That evidence was considered by Employment Judge M Kearns at the Preliminary Hearing on 11 August 2023, along with the other documentary evidence that was available at the time, following which the claimant’s disability discrimination complaints were dismissed. Considering all the circumstances, I am unable to conclude that the fact that the claimant did not provide unredacted medical records until the respondent had made their application to dismiss the claimant’s complaints, meant that the claimant’s complaints or her conduct of her complaints falls within the scope of Rule 76(1)(a) of the ET rules.[59]Even if I had been so satisfied (and the grounds in Rules 76(1)(a) and/or (b) were established), taking account of the claimant’s means and ability to pay, I would have declined to make a Preparation Time Order considering all the circumstances (including the claimant’s means). The claimant had lost her employment at the end of November 2023 and the claimant was seeking new employment. The fact that there may be a shortage of Spa and Beauty therapists or suitable available employment in this field (no evidence relating to this was provided by the respondent), does not provide any or any substantial assistance in terms of assessing the claimant’s means at the relevant time. I therefore considered the claimant’s means based on the evidence that was before me.[60]For these reasons, the respondent’s application under Rules 75 and 75 of the ET Rules is refused.
Conclusion
[61]In the circumstances I refuse the respondent’s application for a Preparation Time Order. B. Beyzade