Miss W Olszowiec v KPD Delivery Service Ltd: 4107088/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4107088/2019Venue AberdeenHearing 16 March 2021
Between
Miss W OlszowiecClaimantKPD Delivery Service LtdRespondent
Before
Employment Judge A KempMr C Howie (instructed by Solicitor) for respondentDate 24 March 2021
JUDGMENT
[1]The claimant was continuously employed by the respondent for the period from 1 September 2014 under section 218 of the Employment Rights Act 1996.[2]The claimant is entitled to a statutory redundancy payment of One Thousand Seven Hundred and Forty Nine Pounds Five Pence (£1,749.05).[3]The claimant was unfairly dismissed by the respondent, and she is entitled to a compensatory award of Five Thousand Six Hundred and Seventy Four Pounds Twenty Pence (£5,674.20).[4]The respondent made unlawful deductions from the wages of the claimant, and was in breach of contract with her, in respect of not paying her Statutory Sick Pay of One Hundred and Eighty Eight E.T. Z4 (WR) Pounds Fifty Pence (£188.50) and in not making employer’s contributions to pension under the Pensions Act 2004, with the respondent being liable for pension contributions not made by prior employers where that liability transferred to the respondent under Regulation 4 of the Transfers of Undertaking (Protections of Employment) Regulations 2006, and she is awarded the sum of Eight Hundred and Ninety One Pounds Thirty One Pence (£891.31).[5]The claimant is therefore awarded the total sum of EIGHT THOUSAND FIVE HUNDRED AND THREE POUNDS SIX PENCE (£8,503.06) payable to her by the respondent.
REASONS
[1]This was a Final Hearing held in person to address a number of issues in relation to claims made by the claimant. There had been earlier Preliminary Hearings on 23 October 2019 and 3 December 2020.[2]The claimant is Polish, and does not have a good command of English. A translator was engaged for the Final Hearing accordingly. The claimant represented herself.[3]Mr Howie had very recently been instructed to act for the respondent. He had not however been provided by the respondent with a copy of the Note issued after the last hearing, and was not aware of all the issues that were to be addressed at the hearing accordingly. An adjournment took place to allow him to have sight of that Note, and after that he confirmed that he was content that the Final Hearing proceed.
Issues
[4]The following are the issues that the Note of the hearing on 3 December 2020 set out were to be addressed at the Final Hearing:(i) On what date did the claimant’s continuous employment for statutory purposes start?(ii) Was there any break in that, if so when and for how long?(iii) What if any notice did the claimant receive?(iv) To what notice was she entitled?(v) Were the respondents in breach of contract or did they make unlawful deduction from wages in respect of (i) sick pay, and (iii) pension contributions?(vi) What was the reason for the claimant’s dismissal?(vii) If a potentially fair reason, was it fair or unfair under section 98(4) of the Employment Rights Act 1996?(viii) To what redundancy payment is the claimant entitled?(ix) In the event that any of the claimant’s claims succeed to what remedy is she entitled? Evidence[5]The parties had each produced two separate Bundles of Documents. Evidence was given by the claimant, and by Mr Peter Ledley for the respondent.
Facts
[6]The Tribunal found the following facts material to the issues as having been established:[7]The claimant is Ms Violetta Olszowiec. She is Polish. She has a very limited command of English. Her date of birth is 1 December 1973.[8]The respondent is KPD Delivery Service Limited. It is a Company incorporated under the Companies Acts. It was incorporated on 21 April 2017.[9]The claimant was employed initially on 1 September 2014 by DSL Express Aberdeen Ltd (“Express”). She was employed as a cleaner, working five days per week for three hours per day. Her duties were to clean a private address of Ms Akram Mazhari occasionally clean office premises at Altens, Aberdeen used by Express and occasionally to look after Ms Mazhari’s dogs at the private address. Cleaning materials were provided to her by Express.[10]Express was a company incorporated under the Companies Acts. Its shareholders were Mr Peter Ledley and Ms Akram Mazhari. It traded also using the name DSL Aberdeen Limited. It had a place of business at Unit 4 Blackness Road, Altens, Aberdeen.[11]When the claimant started that employment she was not provided with a written contract of employment or statement of particulars of employment by Express.[12]Payslips for the claimant were initially provided in name of DSL Aberdeen Ltd, and latterly as DSL Express Aberdeen Ltd. The claimant was the weekly equivalent of £288.74 net per week when employed by Express. Her last payment from Express was on 21 March 2016. No provision for pension was made for her by Express.[13]Ms Mazhari married Kamyar Sadri on a date not given in evidence. Mr Sadri was involved in the running of the business of Express. He normally gave the claimant instructions, requests for overtime to be worked, made arrangements for annual leave and attended to similar matters that arose in the claimant’s employment.[14]In about early April 2017 Express ceased to trade. Mr Ledley took some time away from work for personal reasons at around that time. On 21 May 2017 Express was dissolved. Its business was not sold, but taken on by other transport or logistics companies.[15]On or about 5 April 2017 the claimant became an employee of KPD Delivery UK Limited (“UK”). UK is a company incorporated under the Companies Acts. Its shareholders were Ms Akram Mazhari and Mr Kamyar Sadri, who are married to each other. It was managed by Mr Amir Mazhari the brother of Akram Mazhari. Amir Mazhari had been the Operations Manager of Express. There had been between 10 and 20 employees at Express when it was trading, with numbers varying with the level of business.[16]The claimant continued to carry out the work performed for Express when she became employed by UK. She did so at the same private address and same office situated at Altens, Aberdeen as she had before when employed by Express. Her hours and pay remained the same, but was paid after about 5 April 2017 by UK. Her first payment from UK for pay was on 6 April 2016. She did not receive any written documentation as to the termination of employment with Express or the commencement of her employment with UK. She did not receive a written contract of employment or particulars of employment from UK. There was no cessation to the work she carried out in the period of ceasing to be employed by Express and commencing employment with UK. No provision for pension was made for her by UK. Mr Sadri continued to give her instructions or be her point of contact for employment matters. She used the cleaning materials she had been provided with when at Express, and thereafter UK provided her with cleaning materials.[17]The claimant received payslips showing her employer as “KPD UK Delivery Ltd” or “KPD UK” when employed by UK.[18]In March 2018 the claimant commenced a second job as a cleaner at Aberdeen Royal Infirmary, working in the evenings.[19]Mr Ledley became a self-employed contractor for UK in about June 2016. He assisted it in securing new business and in administrative matters.[20]From 6 April 2016 to 22 May 2018 the claimant’s pay was paid by UK at the weekly equivalent of £232.88 net.[21]In May 2018 the claimant was provided with a contract of employment in name of “KPD Delivery Service”. It had an address given as “Unit 04 Kingsway Park”. No town or city was given, but that is an address in Dundee. The contract was intended to be between the claimant and the respondent. It had been drafted by Mr Ledley. The contract had a provision that the claimant’s employment with that company was to start on 28 May 2018 and was for a one year fixed period.[22]That contract was handed to the claimant by Mr Sadri. The claimant noted the date of commencement and told him that she had started employment earlier. He took that contract away, and returned the following day. The new contract was in the same terms but in place of a start date of 28 May 2018 typewritten on it was placed a series of full stops “……….”. Mr Sadri told the claimant to complete the date. She did so in his presence, writing on it “01.09.14” in hand. He did not make any contrary remark when she did so. The claimant retained that version of the contract, which had been signed by a person (whose identity was not confirmed in evidence) for the employer but not by the claimant as employee.[23]The respondent’s shareholders were not given in evidence. The business is under the management of Mr Amir Garani (the spelling of whose name was also given in evidence and may not be correct accordingly). He is the son of Akram Mazhari, and stepson of Kamyar Sadri. Mr Sadri was also involved in the management of the business of the respondent. Mr Ledley worked for the respondent as a self-employed contractor. The business address of the respondent remained the said address at Altens, Aberdeen at that stage.[24]From 22 May 2018 the claimant’s wages were paid to her by the respondent. The payer on her bank statement was amended to “KPD (UK) DeliveryL” which is a reference to the respondent. It continued at the same rate as she had had with UK. The respondent did not make pension provision for her.[25]The claimant received payslips showing her employer as “KPD Delivery”.[26]The claimant’s duties remained as they had been with UK and DSL. Her hours of work remained the same. She cleaned the same private residence, and occasionally the same office premises, initially using materials provided by UK. Thereafter cleaning materials were provided to her by the respondent. Her point of contact for employment matters remained Mr Sadri. There was no cessation to the work she carried out between ceasing to be employed by UK and commencing employment with the respondent.[27]One other employee of UK became an employee of the respondent at about that same time, Mr Gary Clark.[28]In or around November 2018 the shareholders of UK being Akram Mazhari and Kamyar Sadri sold their shares to Atanas Georgiev, who owned another logistics company. On 9 November 2018 UK changed its name to Scott Logistics Service Limited.[29]The business of UK and the respondent had primarily been for parcel deliveries. After the sale of the shares of UK the business carried on by the respondent became for two man deliveries. The office premises used by the respondent changed to another address at Altens, being Unit 32 Altens Lorry Park, Aberdeen which is close to the address it had formerly used. The claimant occasionally cleaned that new office address.[30]In January 2019 Mr Ledley commenced to work for the respondent as an employee. He is its Regional Manager.[31]On 7 January 2019 Mr Sadri called the claimant and said that she was at risk of dismissal, or words to that effect. No possible termination date was given.[32]On 21 January 2019 the claimant commenced a period of sickness caused by a cyst on her leg which meant that she could not properly walk. She provided a fit note to the respondent. She was paid Statutory Sick Pay for the period to 7 February 2020.[33]On 22 January 2019 the respondent sent an email to the claimant to inform her that her employment would terminate on 22 February 2019.[34]On 28 January 2019 the respondent advertised for a cleaner to work parttime from 9am to 4pm.[35]The claimant was not paid Statutory Sick Pay by the respondent for the period 8 to 22 February 2019.[36]The respondent provided the claimant with a Form P45 with a termination date of 20 February 2019. The employer was stated to be KPD Delivery, with an address of Kingsway Dundee.[37]The claimant’s employment with the respondent terminated on 22 February 2019.[38]Prior to the claimant becoming ill and being paid Statutory Sick Pay her gross income was £308.75 per week, and her net income was £275.45 per week.[39]No cleaner was employed by the respondent after the termination of the claimant’s employment.[40]Following the termination of the claimant’s employment she continued with her second job at Aberdeen Royal Infirmary, where she worked for three hours in the evenings Monday to Friday. She sought a new cleaning role by searching on the internet. On 6 July 2020 she was able to secure increased hours at Aberdeen Royal Infirmary at a total of 32.5 hours per week, and was paid £10.53 per hour for doing so. She also had access to an occupational pension.[41]The claimant at no stage claimed benefits. Submissions for claimant[42]Understandably the claimant made a brief submission, and the following is a summary. She said that she had been employed from 2014 by a company and that the name was always changing. It had been difficult for her to fight for herself. It was confusing for her, and had been very stressful. She sought compensation. Submissions for respondent[43]The following is again a summary of the submission Mr Howie made. The claimant’s claim had been against Mr Sadri and KPD Limited. The latter was a Northern Ireland company and there was no evidence that the employer had been the former. The respondent’s position was that it had been the employer of the claimant from 28 May 2018. Mr Sadri had not been a director of any of the companies. He was a beneficiary of its services as he had had his house cleaned. The claimant did not have service to claim unfair dismissal or a statutory redundancy payment. No notice payment was due as at it had been given. Express, UK and the respondent were all separate companies. Neither customers nor assets had transferred between them. When asked about the potential issue as to a relevant transfer he had not been aware of that matter and had not had time to research it. He argued however that the shares of UK had been sold, and it had separate business activities to the respondent, such that at neither of the two stages of change had there been a relevant transfer.[44]If it was held that there had been continuous service, he argued that the reason for dismissal was redundancy, and that it would have happened if there had been consultation. Losses ceased at 6 July 2020 when near full time work was obtained, but that was a lengthy period from dismissal, and there was inadequate evidence of mitigation of loss from the claimant. The evidence of looking online for jobs was too vague.
The law
[45]The right to claim unfair dismissal is set out in section 94 of the Employment Rights Act 1996 (“the Act”). Under section 108 of the Act to be entitled to make that claim the claimant must have at least two years’ continuous service. Continuity of service where there is a change of employer is provided for in section 218 of the Act, the material parts of which are as follows: “218 Change of employer(1) Subject to the provisions of this section, this Chapter relates only to employment by the one employer.(2) If a trade or business, or an undertaking (whether or not established by or under an Act), is transferred from one person to another— (a) the period of employment of an employee in the trade or business or undertaking at the time of the transfer counts as a period of employment with the transferee, and (b) the transfer does not break the continuity of the period of employment. …….. (6) If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters the second employer's employment, is an associated employer of the first employer— (a) the employee's period of employment at that time counts as a period of employment with the second employer, and (b) the change of employer does not break the continuity of the period of employment.”[46]The definition of associated employers for this purpose is in section 231 of the Act, which states as follows: “231 Associated employers For the purposes of this Act any two employers shall be treated as associated if—(a) one is a company of which the other (directly or indirectly) has control, or(b) both are companies of which a third person (directly or indirectly) has control; and “associated employer” shall be construed accordingly.[47]It has been held that this section also applies to control by a group of persons, if the group in fact acts as one, in Zarb and Samuels v British and Brazilian Produce Co (Sales) Ltd [1978] IRLR 78. The issue was considered further in South West Launderettes Ltd v Laidler [1986] ICR 455. Although an employment tribunal held that one person controlled the companies for practical purposes the Court of Appeal held that in each case the person controlling the companies was different. In Harford v Swiftrim Ltd [1987] ICR 439 five shareholders held near identical holdings in each of two companies, the EAT held that “common sense indicates an association”. In Tice V Cartwright [1999] ICR 769 that general approach was followed, but not in Strudwich v Iszatt Brothers Ltd 1988ICR 796.[48]Separately continuity of service may be preserved if there is a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). TUPE and its predecessor were introduced to give effect to EU Directives, the most recent of which is the Acquired Rights Directive EC 77/187 and requires to be construed purposively (which obligation continues after the UK left the European Union as retained law.[49]Regulation 3 of TUPE has provisions as to the definition of a relevant transfer, which provides as follows: “3 A relevant transfer(1) These Regulations apply to— (a) a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity;…….(2) In this regulation 'economic entity' means an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary……...”[50]Regulation 4 provides as follows: “4 Effect of relevant transfer on contracts of employment(1) Except where objection is made under paragraph (7), a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer, which would otherwise be terminated by the transfer, but any such contract shall have effect after the transfer as if originally made between the person so employed and the transferee.(2) Without prejudice to paragraph (1), but subject to paragraph (6), and regulations 8 and 15(9), on the completion of a relevant transfer— (a) all the transferor's rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and (b) any act or omission before the transfer is completed, of or in relation to the transferor in respect of that contract or a person assigned to that organised grouping of resources or employees, shall be deemed to have been an act or omission of or in relation to the transferee…….”[51]A summary of the law in relation to when there is a transfer of undertaking under Regulation 3(1)(a) of the Regulations is in Cheesman and Ors v Brewer Contracts Ltd [2001] IRLR 144. The first step is to identify the economic entity, and the second to establish whether that transferred. As to the former the EAT summarised matters as follows: “(i) As to whether there is an undertaking … an organised grouping of persons and assets enabling (or facilitating) the exercise of an economic activity which pursues a specific objective … (ii) … such an undertaking … must be sufficiently structured and autonomous but will not necessarily have significant assets, tangible or intangible; (iii) in certain sectors, such as cleaning and surveillance, the assets are often reduced to their most basic and the activities are essentially based on manpower; (iv) an organised grouping of wage-earners who are specifically and permanently assigned to a common task may, in the absence of other factors of production, amount to an economic entity; (v) an activity of itself is not an entity; the identity of an entity emerges from other factors, such as its workforce, management style, the way in which its work is organised, its operating methods and, where appropriate, the operational resources available to it.''[52]As to the second step it referred to the following ''(i) … the decisive criteria for establishing the existence of a transfer is whether the entity in question retains its identity, as indicated … by the fact that its operation is actually continued or resumed; … (iii) in considering whether the conditions for … a transfer are met, it is necessary to consider all the factors characterising the transaction in question, but each as a single factor and none is to be considered in isolation; (iv) amongst the matters … for consideration, are the type of undertaking, whether or not its tangible assets are transferred, the value of its intangible assets at the time of transfer, whether or not the majority of its employees are taken over by the new company, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, in which they are suspended; (v) account has to be taken … of the type of undertaking or business in issue, and the degree of importance to be attached to the several criteria will necessarily vary according to the activity carried on; (vi) where an economic entity is able to function without any significant tangible or intangible assets, the maintenance of its identity following the transaction … cannot logically depend on the transfer of such assets; (vii) even where the assets are owned and are required to run the undertaking, the fact that they do not pass does not preclude a transfer; … (x) the absence of any contractual link between the transferor and transferee may be evidence that there has been no relevant transfer, but it is certainly not conclusive as there is no need for any direct contractual relationship; (xi) when no employees are transferred, the reasons why that is the case can be relevant as to whether or not there was a transfer.''[53]This approach was approved by the Court of Appeal in McCarrick v Hunter [2013] ICR 235.[54]The jurisprudence of the Court of Justice of the European Union includes that of Schmidt v Spar-und Leihkasse Der Früheren Amter Bordesholm, Kiel und Cronshagen [1994] IRLR 302. In that case, the court held that the transfer of cleaning duties of a single employee, a cleaner in a bank, to a company providing cleaning services at other premises of the client constituted (without a transfer of any assets) a transfer of part of an undertaking. The effect of a relevant transfer is to transfer all rights and liabilities of the transferor to the transferee in relation to the employee concerned, where that employee is assigned to that which transfers.[55]If there is continuity of service, the first question for a claim of unfair dismissal is whether the reason, or principal reason, is potentially fair under section 98(2) and the second question is whether a potentially fair reason is or is not fair under section 98(4) of the Act which states that that “(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating [that reason] as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[56]Where the reason for dismissal is redundancy, there is the right to a statutory redundancy payment by section 135 of the Act. Redundancy is defined in section 139, and the calculation is provided for in section 162.[57]An employee has a right to a minimum period of notice under section 86 of the Act.[58]There may be an unlawful deduction from wages under Part II of the Act. Wages are defined in section 27. The right to make a claim is provided for in section 13.[59]Provision for automatically enrolling employees into a pension scheme was introduced by the Pensions Act 2004, and was generally referred to as “auto-enrolment”. The Act was supplemented by the Pension Protection Regulations 2005. Under the auto-enrolment provisions which were introduced from July 2012 the minimum contribution required by the employer was 1% of earnings, increasing to 2% for the period between October 2017 and September 2018, and 3% thereafter.[60]An employee absent when ill is entitled to Statutory Sick Pay under the Statutory Sick Pay (General) Regulations 1985. The rate applicable for January 2019 to February 2019 was £94.25. Observations on the
Evidence
[61]I was entirely satisfied that the claimant was a credible and reliable witness. She gave her evidence clearly and candidly. She was convincing in describing what happened, particularly in relation to a contract offered to her in May 2018, and it was understandable that she was not clear on who her employer had been, when, and in what circumstances when the documentation provided to her was very limited at best, and woefully inadequate much of the time.[62]I was satisfied that Mr Ledley was seeking to give honest evidence to the Tribunal, but there were limitations on the extent to which he could assist the Tribunal. He was not one of the shareholders or directors of UK or the respondent. He was not at work in the period around May 2018. It was not his private address being cleaned. It was therefore somewhat surprising that those who were best placed to give evidence, such as Mr Sadri and Ms Mazhari his wife, and Mr Garani who is Ms Mazhari’s son, did not do so. There was limited evidence of the relationship between the companies involved in the claimant’s employment because of that. They were Express, UK and the respondent. There was however a common theme firstly that they were directly or indirectly controlled by Ms Mazhari, Mr Sadri and their extended family, and secondly that the work performed by the claimant was not the primary business of each company, but largely for the benefit of Ms Mazhari and Mr Sadri. Mr Garani is Ms Mazhari’s son and appears to have control of the respondent either alone or with others. In practice the claimant had no say in what happened to the identity of her employer, and received little documentation about the change of employer or the reasons for that. I drew inferences from the absence of evidence from them when considering the issues of associated employers and relevant transfers in light of that as explained below.
Discussion
[63]The first issue was on what date did the claimant’s continuous service start. She actually started her work on 1 September 2014, but that was with Express. It changed in about April 2016 to UK and then again in about May 2018 to the respondent. Unless the terms of sections 218 and 231 apply, or there was a relevant transfer, the claimant did not have continuity of service.[64]I considered that the claimant did have continuity having regard to sections 218 and 231. The case law in this area is not entirely consistent, and matters may depend on the facts of each case as to which party or parties had actual control of each company, as well as how control was exercised by shareholders or groups of shareholders in practice. The statutory definition includes control exercised indirectly as well as directly.[65]The employers were all part of a series of companies involving Ms Mazhari, Mr Sadri or both of them. The change from Express to UK happened as Express was ceasing to trade. The change from UK to the respondent was not explained in evidence, and happened about six months before the sale of UK shares to a third party. Mr Garani who appears from Mr Ledley’s evidence to have some measure of control of the respondent is the son of Ms Mazhari, and stepson of Mr Sadri. Mr Ledley was not however clear about who the shareholders in the respondent were. Ms Mazhari was a material shareholder in at least Express and UK. Mr Sadri was the point of contact for the claimant throughout all three employing companies. Whilst detailed evidence of the shareholdings in each of Express, UK and the respondent together with how the companies were managed and controlled by the shareholders in practice was not provided, that was because those who could give that evidence were not called as witnesses by the respondent. That was so despite the terms of section 218 being referred to in the Note from the last Preliminary Hearing. It was no fault on the part of Mr Howie, as he had not been provided with that Note by his clients, and had only recently been instructed. The very absence of evidence from the respondent, partiulalry Mr Sadri or Ms Mazhari on this point led me to infer that there was a sufficient degree of control of all three companies within the terms of sections 218 and 231, together with the evidence that was before me which included that the work was largely at the private residence of Mr Sadri and his wife Ms Mazhari, giving them a benefit personally more than for any of the three companies concerned. The work of the claimant was at best ancillary to the work of the companies. That it was paid for by each of the companies where the benefits for those companies were both not established in evidence and not at all clear indicated that Mr Sadri and Ms Mazhari, or Ms Mazhari alone, controlled the companies either directly and indirectly. That inference was fortified by the change of employer to the respondent, six months before the sale of shares but where that prospective sale is the only matter put forward in evidence that might have caused such a change. The inference from it is that Mr Sadri and Ms Mazhari recognised that they had a private benefit from the work of the claimant, and wished to separate that out from UK and place it in another entity that they had direct or indirect control over. If there was another reason, it was not put forward in evidence.[66]The position is further fortified by the terms of the contract of employment issued to the claimant in May 2018. I accepted her evidence that as originally framed by Mr Sadri she rejected it, and he returned to her the next day with a new contract with the start date for purposes of continuity of service left blank, and he watched her when she added the start date of 1 September 2014 by hand. He did not protest that at all at that time. The inference from those facts is that Mr Sadri accepted that the claimant had continuous service from that date, and that the reason for that is that he and his wife, or his wife alone, had direct or indirect control of Express, UK and the respondent.[67]These matters led me to conclude that Mr Sadri and Ms Mazhari his wife, or Ms Mazhari alone, had control directly or indirectly to a sufficient extent of all three companies such that the companies are associated employers for these purposes.[68]Separately I considered whether the claimant was subject to relevant transfers between each of the three companies. I was satisfied that the claimant was the principal part of an economic entity, being a part of the undertaking of Express, then of UK. It comprised of the work carried on by the claimant, which was primarily at the private address of Mr Sadri and Ms Mazhari, but also on occasion at the said office, the provision of cleaning materials to her by Mr Sadri, and the management of her by Mr Sadri. Mr Sadri acted as agent for Express, then UK and then the respondent. On each of the occasions of a change of employer that economic entity transferred under Regulation (3)(1)(a). The claimant’s circumstances are reasonably close to those in Schmidt. The claimant was the only person providing a cleaning service. She was paid for doing so. She worked hours and for pay levels that were essentially unchanged by any change of employer. The picture before and after transfer in each case was practically identical, and there was no cessation in activities. That no assets transferred is not determinative – this was a labour intensive operation. The claimant was the only person doing the work. She was paid the same rate for doing the same work over the same hours before and after each such change of employer. She did so at the same locations. There was a change in November 2018 to work at a different office, but that was six months after the transfer to the respondent, and only to an office a short distance from the previous one (Mr Ledley put it as a five minute walk). That office work was only carried out occasionally, and the main work at the private residence remained. In reality the economic entity that was constituted by the work carried out by the claimant retained its identity after each change of employer. The test for a relevant transfer under Regulation 3(1)(a) as explained in Cheesman was I held met in these circumstances.[69]I was satisfied therefore that the claimant had continuity of employment from 1 September 2014.[70]I would also state in this regard that although Mr Howie tried to argue either that the claimant had pursued a claim against Mr Sadri as an individual or against another company KPD Limited, not the respondent, that I rejected that submission. It was not one of the issues identified in the last Preliminary Hearing. The respondent had submitted a Response Form accepting that it was the employer at point of dismissal. That Response Form was submitted by solicitors then acting for it. That was also its position in the Final Hearing. The claimant is Polish with a very limited command of English. There had been a failure by Express or UK to provide any statement of particulars of employment required by section 1 of the Act. The payslips were not always consistent with the name of the employer, and it was not clear precisely which entity between UK and the respondent was the employer as the names were similar, and terms on the payslips similar. No documentation was issued at the time of the original employment of the claimant, or the change of employer from Express to UK, and there was only a contract, without the full name of the respondent as it did not make clear that it was a limited company, nor did it provide a company number, and no full address, issued in May 2018. It was unrealistic at best to expect a person in the claimant’s circumstances to be clear as to who her employer was, and when, or why each change may have been taking place.[71]The second issue was whether there was any break in service. No evidence on that was submitted, although it had been suggested at the preliminary Hearing by the respondent that such an argument may be made. I was satisfied that there was no break in continuity.[72]The third issue is the notice the claimant received. I was satisfied that she received that from the email to her of 22 January 2019, which gave one month’s notice. For service commencing on 1 September 214 and ending on 22 February 2019 the entitlement under section 86 is to four weeks’ notice. The claimant received that, indeed slightly more. I did not therefore consider that she had a claim for failing to give her the notice to which she was entitled.[73]The fourth issue was whether the respondent was in breach of contract or made unlawful deduction from wages in relation to statutory sick pay (“SSP”), or pension. For SSP I was satisfied that the claimant had not been paid for the last two weeks of her employment, and was entitled to two weeks of SSP accordingly.[74]The pension position is more complex. None of her employers provided any pension for her. Mr Ledley suggested that the claimant had been provided with a letter about opting out of pension, but that had not been pled nor put to the claimant in cross examination at all, and no such letter was produced by the respondent in the Bundle, still less one signed by the claimant. I did not accept as reliable the suggestion that the claimant had opted out of pension entitlement, even if it was one the respondent was entitled to make, which I did not consider they were. The claimant therefore had an entitlement to pension contributions from her employers for the period of her employment, with the rates for that changing during the period under the auto-enrolment provisions.[75]The fifth issue arises as the claimant does have the necessary continuous service, and can therefore claim unfair dismissal. I was just satisfied that the respondent had proved the reason for the dismissal was redundancy, which was as the claimant was not, on the evidence of Mr Ledley which I accepted, replaced. The decision maker was not however called to give evidence. Mr Ledley did not know who that was, as I note below. There was therefore no direct evidence of the reason. The claimant had been told orally on 7 January 2019 that she was at risk of dismissal, and given notice on 22 January 2019 but that did not set out in terms the reason. I considered however that in the circumstances overall the reason (or principal reason if more than one although none was suggested in evidence) was likely to be that of redundancy, and that is potentially a fair reason.[76]I then considered whether there was a fair dismissal under the terms of section 98(4) of the Act. There was not the slightest consultation with the claimant. On 7 January 2019 she was informed of a risk of dismissal but not the reason and Mr Ledley accepted that the claimant did not appear to understand it when he spoke to her. That conversation with Mr Ledley had not in any event been put to her in cross examination. Mr Sadri did not give evidence. At best the conversation that day was an indication of a risk of dismissal, not why or in what circumstances, and no consultation took place then or later as the next stage was the email of dismissal on 22 January 2019 giving a termination date on 22 February 2019, all at a time when the claimant was off work sick.[77]Consultation is at the heart of fairness, as is trite law, but referred to in the classic case of Polkey v A E Dayton Services Ltd [1987] IRLR 503, for example. The complete absence of it means that the dismissal was, I consider, unfair. Mr Howie responsibly did not seek to argue the contrary.[78]The eighth issue was to what redundancy payment was the claimant entitled. She was 40 at the commencement of her employment, and has one year of service under the age of 41, for which the calculation is one week’s pay, and three years over the age of 41 for each of which the calculation is one and a half weeks’ pay. The calculation of a week’s pay for these purposes is made under sections 221 – 224 of the Act, and under section 23 the period when the claimant was off sick, and not working, is discounted. The gross pay on that basis, which is also referred to further below, is a total of £308.75 per week, to which is added the entitlement to pension from the employer of 3% being the sum of £318.01 in total, which is multiplied by a total of 5.5. She is entitled to a statutory redundancy payment of £1,749.05.[79]The final issue was to what remedy is the claimant entitled. Firstly she is not entitled to damages for breach of contract in respect of notice. She received the notice she was entitled to in law, and there was no breach of contract or her statutory right to notice in that regard.[80]Secondly, there was an unfair dismissal. She is not entitled to a basic award as that is subsumed within the statutory redundancy payment. She is entitled to a compensatory award under section 123 of the Act.[81]The respondent argued that she would have been dismissed in any event following any consultation that would have occurred. That is an argument on the basis of the authority of Polkey. The difficulty with that argument is that the onus of proof of it falls on the respondent, and that the witnesses best placed to give that evidence were not tendered by the respondent. Mr Ledley could only give evidence as far as he could. He was not the decision maker, and indeed when asked could not say who had made the decision, although it was probably Mr Sadri. There is a risk of the claimant having been dismissed which she was informed about on 7 January 2019, which was before her illness, but there was no evidence on why there may have been no or less need for a cleaner, and assessing what would likely have happened had there been consultation with the claimant is not possible in light of the lack of that evidence from the decision-maker. A Tribunal may not be able to embark on what has been described as a sea of speculation – King v Eaton No. 2 [1998] IRLR 686. I concluded that the respondent had not discharged the onus of proving that there would or may have been a fair dismissal had there been a different procedure followed.[82]I then considered the extent of the loss suffered by the claimant as a result of the dismissal. The claimant has a duty to mitigate her loss, which is to take reasonable steps to reduce the loss. In practical terms that means taking reasonable steps to seek a new job as quickly as reasonably practicable. The claimant gave very limited evidence about mitigation of loss. She continued with her evening job after the dismissal, and said that she had searched the internet for a new cleaning job. No detail was given however. No documentation was produced. The claimant referred to the cyst she suffered from but could not recall whether that meant she could not work, and as she could work at the hospital it appears more likely that she could have worked at another cleaning job. Whilst that would have taken some time to find a new position, I did consider that the respondent was correct in arguing that there had been a failure in mitigation. The onus is on the respondent, but it is for the claimant to say what she did as only she knows that.[83]I have very little evidence before me to go on from her save that she looked online but then secured more hours at the hospital on 6 July 2020, which is over sixteen months after the dismissal. Taking matters as best as I can, and having regard to the local jobs market in the early months of 2019, I consider that the appropriate period of loss for the unfair dismissal given all the circumstances is of a total of 20 weeks, which is the period within which I would expect someone in the claimant’s position taking reasonable steps to seek employment to have secured a replacement job to that from the respondent. That is taken against the net pay of £275.45 per week, to which is added 3% for pension entitlement, a total of £283.71 multiplied by 20 = £5,674.20. That is the amount of the compensatory award.[84]The claimant did not claim state benefits, and the recoupment provisions are not engaged accordingly.[85]I turn to the claim for unlawful deduction from wages, which is also potentially a breach of contract. The statutory sick pay is £94.25 for two weeks, a total of £188.50.[86]The pension loss is more complex. It is taken in three periods. In the first, from the commencement of employment to 30 September 2017, the contribution rate for the employer was 1%. There was little evidence to go on of the gross income. There were two payslips, and taking the best I can from the evidence as a whole I consider that the gross income per week at this stage was £300 per week. The period of time is 37 months. The total gross income over that period is £48,100, and 1% of that is £481.[87]The second period is October 2017 to September 2018, a total of a year. The contribution rate is 2%. The gross income I have assessed on a similar basis from the evidence before me. The gross income I assess at £350 per week, and the pension contribution would have been £364 for that year.[88]The third period is October 2018 to February 2019, a period of five months. There is a payslip for January 2019 showing gross wages of the equivalent of £308.75 per week, although the pay was paid fortnightly. The net pay appears to be broadly similar in the period from October 2018, from the evidence of the bank statements, and I consider that the gross pay in this period was £1,543.75. The contribution for that period at 3% of that figure, which is £46.31.[89]The total of these three figures is £891.31. The total includes liabilities transferring from Express to UK, and then UK to the respondent, under Regulation 4 of TUPE.[90]The claimant has been deprived of these entitlements for a period of over six years. Had the payments been made by the respondent she may have built up a pension provision with increased value over that period, but I do not have any information on which to assess the extent of that. In addition the claimant would herself have made employee contributions over the same period, but did not do so. I consider that all I can do is award the amount of the employer pension contributions which were not paid when they ought to have been.
Conclusion
[91]I find that the claimant has the continuity of service to claim for unfair dismissal, and is entitled to a statutory redundancy payment. I further find that there was a breach of contract by the respondent and an unlawful deduction from wages in respect of not paying her for SSP and not making any pension provision for her. I award the following sums:(i) Statutory redundancy payment £1,749.05(ii) Compensatory award for unfair dismissal £5,674.20(iii) SSP £188.50(iv) Unpaid pension contributions £891.31 TOTAL £8,503.06[92]There are a number of matters addressed in this Judgment which were not the subject of submission by either party. During submission I raised with Mr Howie the authority of Schmidt, but he did not address me on that as he had not been aware that issues under TUPE would arise. If either party considers that it has not had a fair opportunity to make submissions on the statutory provisions or case law referred to above it may seek an order for re-consideration under Rule 71.[93]I gave consideration to whether to ask the respondent for its response to the possibility of imposing a penalty under section 12A of the Employment Tribunals Act 1996. There was a complete failure to consult with the claimant over her potential redundancy. There had earlier been a wholescale failure to comply with a number of obligations, including the failure to provide written particulars of employment under section 1 of the Employment Rights Act 1996 by Express and UK, a failure to inform and consult the claimant over prospective transfers of employment from Express to UK and then UK to the respondent, a failure to comply with the requirements as to auto-enrolment, a failure to pay SSP, and a failure to pay a statutory redundancy payment. Whilst three separate companies are involved I take account of the findings as to associated employers and TUPE as set out above.[94]These are serious matters both individually and especially collectively. I have decided that I shall not take further the possibility of imposition of a penalty, but the respondent may wish to consider carefully the terms of this Judgment and take advice as to compliance with its employment law obligations in future.