Ms M Reina Lopez v Occasions Leisure Ltd: 4108031/2020

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4108031/2020

Between

Ms Maria ReinaClaimant

Occasions Leisure LimitedRespondent

Before

Employment Judge Russell Bradley

Date 4 March 2022

JUDGMENT

The Judgment of the Tribunal is that the ET1 form was presented in time.

REASONS

[1]On 30 December 2020 the claimant presented an ET1 in which she makes claims of unfair dismissal and for; a statutory redundancy payment; notice pay; holiday pay and in respect of an alleged failure to provide her with a written statement of her terms and conditions of employment. After various E.T. Z4 (WR) steps which I outline below the tribunal issued a notice for this preliminary hearing. It stipulated that the issue for determination was “If the claim is time-barred and if it is, whether it was reasonably practical for the claim to be presented in time.”

[2]The claimant was represented by Ms L Campbell who has done so throughout the claim and before it. Prior to the hearing she had lodged an inventory of productions comprising 34 pages.

[3]As I note below, no ET3 has been lodged. The respondent was neither present nor represented at this hearing.

[4]I heard no evidence. The claimant was not present. Ms Campbell was content to proceed based on submissions.

[5]I indicated that I would reserve my judgment which would follow in writing with reasons. Findings in Fact

[6]Based on the ET1 and various papers within the tribunal file I found the following facts proved. The claimant is Maria Reina.

[8]On 22 August 2020 she was dismissed from her employment with the respondent. Early conciliation began on 16 November 2020. A certificate was issued on 1 December. It named McLagan Inns Ltd as the prospective respondent. On 30 December 2020 the ET1 was presented. It named Occasions Leisure Limited as the respondent.

[9]On or about 6 January 2021 it was rejected under rule 12(1)(f) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the Rules). On or about 8 January the claimant via Ms Campbell made an application for a reconsideration of that rejection under rule 13(1)(b) of the Rules. That application was considered at a Telephone Conference Call hearing on 25 June. The order from that hearing provided that “it would not be in the interests of justice for the claim to be prevented from proceeding on the basis of the claimant's error, and the claim will therefore be treated as accepted.”

[10]By letter dated 13 July the tribunal wrote to Ms Campbell. The letter said, “I refer to your application dated 8 January 2021 for a reconsideration of the decision to reject your claim. Employment Judge B Campbell having reconsidered the decision has decided that your claim can be accepted. The claim will be treated as presented at 30 December 2020. The respondent will now be required to respond to the claim.”

[11]By letter dated 26 August the tribunal wrote again to Ms Campbell. The letter said, “Employment Judge R Gall has noted that no acceptable response to your claim has been received. The Employment Judge has directed that we write to seek comments on a Preliminary Hearing being set down to determine if the claim is time-barred and, if it is, whether it was reasonably practical for the claim to be presented in time. Please reply in writing to this ofﬁce by 2/9/21.” Submissions

[12]Ms Campbell made a short submission. She agreed with a short chronology which I had prepared and which is reflected in the findings in fact. She made reference to the early conciliation dates. In her submission the claim had been submitted within one calendar month of the issuing of the EC certificate. That being so, she said, the claim had been presented in time.

The Law

[13]Section 111(2)(a) of the Employment Rights Act 1996 provides that “Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the effective date of termination.”

[14]Section 111(2A) provides “Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a).” There are equivalent provisions for the claims for notice pay and alleged unlawful deductions from wages. As an aside, I note that the time limit for making a claim for a statutory redundancy payment is more generous (6 months, see section 164 of the 1996 Act).

[15]Section 207B of the 1996 Act provides, “(1) This section applies where this Act provides for it to apply for the purposes of a provision of this Act (a “relevant provision”) (2) In this section Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when a time limit set by a relevant provision expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) Where an employment tribunal has power under this Act to extend a time limit set by a relevant provision, the power is exercisable in relation to the time limit as extended by this section.” Discussion and decision

[16]In my view the answer to the primary question in the issue (is the claim time-barred?) is “no”. It is answered by a consideration of the dates on which various steps occurred in the context of section 207B. I considered what was said by Judge Eady QC (as she then was) in the employment appeal tribunal in Tanveer v East London Bus & Coach Company Ltd [2016] ICR D11. In that case the key dates were;a. The effective date of termination, 20 March 2015.

b. The relevant notification to ACAS for early conciliation, 18 June 2015.

c. On 30 June, the EC certificate was emailed to the Claimant's solicitors.

d. On 31 July, the Claimant's claim (complaining of unfair dismissal and disability discrimination) was lodged with the Employment Tribunal (“ET”).

e. The “original” time limit date was 19 June 2015.

[17]In the judgment (

UKEAT/0022/16/RN

) at paragraph 7 she said, “The purpose of s 207B is undoubtedly to ensure that, with regard to ET time limits, a Claimant is not disadvantaged by the amount of time taken during the relevant limitation period for EC compliance. Thus the amount of time spent on EC will not count in calculating the date of expiry of the time limit; the clock simply stops during the EC period.” And at paragraph 8 she said, “Stopping the clock for the purposes of EC in this case would, on anyone's argument, give rise to a date falling within the period beginning with Day A and ending one month after Day B (s 207B(2)). It thus brought into play s 207B(4). The period in question for sub-s 207B(4) purposes started on 18 June 2015 (Day A) and ended one month after Day B, which was 30 June 2015. The issue was: what was “one month after”?” While the dates in this case are obviously not the same as in Tanveer, section 207B operates in the same way. The period in question for sub-section 207B(4) started on 16 November 2020 (Day A) and ended one month after Day B which was 1 December. Presentation on 30 December was within one month from 1 December. I am fortified in my view having also considered paragraph 5.43 of the IDS Handbook on Employment Tribunal Practice and Procedure which notes that Section 207B(4) “ensures that a prospective claimant always has at least one month from the end of the early conciliation period in which to bring a claim.” Finally Tanveer is authority for the proposition that “one month after” means one “calendar month” albeit it does so by reference to decision of the House of Lords in Dodds v Walker

[1981] 1 WLR 1027

HL. In this case, one calendar month after Day B was 1 January 2020. For completeness, albeit it is obvious, I do not require to answer the subsidiary question in the issue of this hearing.

[18]The case should be listed for a one day final hearing on liability and remedy.

Introduction

[1]On 30 December 2020 the claimant presented an ET1 in which she made a claim of unfair dismissal and for; a statutory redundancy payment; notice pay; holiday pay and in respect of an alleged failure to provide her with a written statement of her terms and conditions of employment. All were maintained in this hearing except for a redundancy payment.

[2]A question previously arose as to whether the ET1 had been presented in time. My judgment with reasons sent to the parties on 8 December 2021 was that it had. I directed that this hearing should be fixed.

[3]The claimant was represented by Ms L Campbell who has done so throughout the claim and before it. Prior to the hearing she lodged an inventory of productions comprising 51 pages.

[4]No ET3 was lodged. The respondent was neither present nor represented at this hearing.

[5]I heard evidence from the claimant with the assistance of a translator, from her first language, Spanish.

[6]I indicated that I would reserve my judgment which would follow in writing with reasons.

[7]The issues are clear from the discussion, decision and remedies noted below. Findings in Fact

[8]Based on the ET1 and various papers within the hearing bundle I found the following facts proved. The claimant is Maria Reina.

[10]On 2 September 2018 and as per an unsigned contract of employment the claimant began employment with N & C Pubs Limited (pages 39 to 45). That contract set out that; she was employed as a Kitchen Assistant; her place of employment was 172 At The Caird, 172 Nethergate, Dundee; her normal working hours were 37.5 hours per week; her continuous service began on 12 March 2017; the holiday year ran from 1 April to 31 March; she was entitled to 28 days paid leave per year and; she was entitled to pay in lieu of any unused holiday entitlement.

[11]By letter dated 28 July 2019 the respondent wrote to the claimant (page 38). It advised of the transfer of her employment to the respondent on 2 June 2019. It referred to the Transfer of Undertakings Protection of Employment (TUPE) Regulations 2006. It confirmed that a new contract of employment would be issued by the respondent. It is headed “Occasions Leisure Ltd 172 at the Caird”. The letter refers to prior employment with Park Leisure Ltd. The inference is that the claimant’s employer immediately prior to the transfer was Park Leisure Ltd. The further inference is that in her time in this employment the claimant had been employed by at least three entities.

[12]While working for the respondent the claimant’s hours varied. On average she worked 35 hours per week.

[13]On or about 17 March 2020 the claimant was furloughed. Pages 32 to 37 show payments to the claimant by the respondent of furlough pay.

[14]In that time, the claimant had several conversations with Martin Tippett. The claimant regarded him as “the boss”. He is the sole director of the respondent. In that time, the respondent told the claimant that in order to be paid and notwithstanding the fact that she was furloughed, she required to return to work. The claimant was threatened that if she did not return to work, she would not be paid and would be dismissed. The dialogue between the claimant and Mr Tippett was in the main by text message.

[15]On or about 22 August 2020 the respondent dismissed the claimant. It did so by email. It did so without giving any period of notice or payment in lieu of it. It made no payment to her in lieu of accrued and untaken holidays. The claimant’s effective date of termination was 22 August 2020. By that date, she was 39 years of age. In the holiday year from 1 April to 22 August 2020 the claimant took no paid leave.

[16]At no time between 28 July 2019 and 22 August 2020 did the respondent issue to the claimant a statement of terms and conditions of employment.

[17]By 22 August 2020, the claimant was paid at the rate of £9.00 per hour.

[18]The claimant was unemployed until about 29 September 2020. Around that time, she began employment with Fox Taverns Ltd. Since then she has worked for them at The Barrelman in Dundee. In the period between November 2020 and April 2021 the claimant was furloughed by Fox Taverns Ltd. Between 10 November 2020 and 27 April 2021 she received furlough pay at the rate of £171.54 per week (pages 47 and 48). Prior to November 2020 and after April 2021 her pay varied. By August 2021 her pay from Fox Taverns Ltd was higher than her pay from the respondent. Comment on the evidence

[19]The claimant’s evidence was both credible and reliable. She was able to explain via the interpreter and without recourse to the bundle the relevant background. She did not exaggerate. She accepted, where appropriate, when she could not recall certain matters.

[20]It was unfortunate that the bundle did not include any material vouching her exchanges with Mr Tippett or the email dismissing her. But the absence of it did not detract from my findings or decision on the claims. Submission

[21]Ms Campbell made a short oral submission. I summarise it here. On the claim of unfair dismissal, she said that the respondent had failed to provide a justifiable reason for the claimant’s dismissal. On the claim for a failure to provide a written statement of terms, she sought 4 weeks’ pay. In support, she said that; there had been a clear breach of the obligation despite a statement to the contrary and that other previous employers had honoured it. On the claim for notice pay, she sought a payment representing 4 weeks’ pay albeit accepting that the claimant could not benefit from a payment for that period “twice” as part of any compensatory award.

[22]She explained that by her calculation, the claimant had accrued 10 holiday days which were untaken by 22 August 2020. She explained the arithmetical basis on which she arrived at the sum sought, £570.60.

[23]Ms Campbell also explained that her calculation of gross weekly pay was based on the claimant’s evidence that she worked on average 35 hours per week at £9.00 per hour (£315.00). She also explained that she had used a Government website to calculate a weekly net amount, £285.03.

Law

[24]Section 98(1) of the Employment Rights Act 1996 sets out that it is for the employer to show the reason for an employee’s dismissal and that it must be for either a reason falling within section 98(2) or for some other substantial reason.

[25]Article 3 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 provides that “Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if —(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in Scotland would under the law for the time being in force have jurisdiction to hear and determine;

(b) the claim is not one to which article 5 applies; and

[26]Section 1(1) and (2) of the Employment Rights Act 1996 provides “(1) Where a worker begins employment with an employer, the employer shall give to the worker a written statement of particulars of employment.” “(2) Subject to sections 2(2) to (4) —(a) the particulars required by subsections (3) and (4) must be included in a single document; and

(b) the statement must be given not later than the beginning of the employment.”

[27]Section 38(3) and (4) of the Employment Act 2002 provides “If in the case of proceedings to which this section applies —(a) the employment tribunal makes an award to the worker in respect of the claim to which the proceedings relate, and

(b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 (in the case of a claim by an worker) under section 41B or 41C of that Act, the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead. (4) In subsections (2) and (3) — (a) references to the minimum amount are to an amount equal to two weeks' pay, and (b) references to the higher amount are to an amount equal to four weeks' pay.”

[28]Regulation 13(1) of the Working Time Regulations 1998 provides that “Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year.”

[29]Regulation 13(5) provides that “Where the date on which a worker's employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (1) equal to the proportion of that leave year remaining on the date on which his employment begins.”

[30]Regulation 13A(1) and (2)(e) provide “Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2)”. “(2)(e) The period of additional leave to which a worker is entitled under paragraph (1) is in any leave year beginning on or after 1st April 2009, 1.6 weeks.”

[31]Regulation 13A(3) provides “The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days.”

[32]Regulation 13A(5) provides “Where the date on which a worker's employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins.”

[33]Regulation 14(2) provides “Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3).”

[34]Regulation 14(3)(b) provides “The payment due under paragraph (2) shall be – where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula–(A × B) – C where – A is the period of leave to which the worker is entitled under regulation 1 and regulation 13A; B is the proportion of the worker's leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date.” Discussion and decision

[35]The respondent has not shown the reason for the claimant’s dismissal. It has not discharged the burden on it which section 98 creates. The claimant has therefore been unfairly dismissed.

[36]On the claim for notice pay, I accept the claimant’s evidence that she was dismissed by email on 22 August 2020 with no prior notice. Her claim for payment in lieu of notice succeeds, but not to the full extent sought.

[37]On the claim for holiday pay, I accept that in the holiday year in which her contract ended she had taken no paid leave. Her claim for accrued and untaken holiday pay succeeds under the Working Time Regulations.

[38]There is no evidence that the respondent issued to the claimant a statement which conformed to section 1 of the 1996 Act. Given my decision on other claims, this claim succeeds and I award compensation as detailed below.

Remedy

[39]Reflecting my finding on her start date, the claimant was entitled to notice of termination of 3 weeks. On the basis of net weekly pay of £285.03 the damages due to her for the respondent’s failure to provide notice of termination is therefore £855.09. I do not have evidence to support a finding that the claimant’s employment began on the date asserted in her ET1 form, 10 August 2016. Reflecting the period of continuous service derived from the contract with N&C Pubs Limited, her employment began on 12 March 2017.

[40]Again taking account of my conclusion on her start date, the claimant had 3 years’ service by her effective date of termination. That being so, her basic award is £945.00.

[41]On the question of a compensatory award, the claimant was unemployed for about one month after 22 August 2020. The first three of those weeks have been compensated by way of damages at paragraph 39 above. She therefore suffered the loss of one week’s pay (£285.03) prior to taking up alternative employment. I accepted what is set out in the schedule of loss as regards loss from that date, reflecting as it does the fact that from August 2021 there has been no loss. The total loss of earnings is therefore £4,068.72. I saw no compelling reason to depart from the suggested £500 representing loss of statutory rights. The total compensatory award is therefore £4,568.72. There was no evidence that the claimant received any State benefits in the period of loss.

[42]On the claim for holiday pay, I agree that by 22 August 2020 the claimant had 4 complete months in the relevant holiday year. I accept the arithmetic explained by Ms Campbell. The respondent is liable to pay £570.60 for accrued and untaken paid leave which sum it is ordered to pay.

[43]On the claim of the failure to provide a section 1 statement, in my view it is just and equitable to award 4 weeks’ pay. In 2019, the claimant transferred under TUPE to the respondent, which confirmed at the time of the transfer that it would issue a new contract. It did not do so. That failure could therefore not have been because of a lack of understanding of its obligation to do so. There was (obviously) no reason or excuse offered in this case. The letter refers to prior employment with Park Leisure Ltd. It should have been obvious to the respondent that the claimant had been employed by a number of entities since her employment began. In my view, it is all the more important that a transferee issues a new contract following a TUPE transfer so that the employee can ensure that all prior terms are being honoured. The respondent in this case failed to do so. It is just and equitable to award four weeks’ pay, being £1,260.00.