Mr A Currie and Ms L McCulloch v Ralphael Pacitti and others: 4118200/2018 and 4118199/2018
JUDGMENT
[1]The claims as against the first respondent and second respondent are dismissed upon their withdrawal by the claimants[2]The claims as against the third respondent are remitted to a one day final Hearing to be fixed in June 2019.REASONS
[1]On 2 September 2018 the Tribunal accepted a Claim Form from both claimants. They arise from the same facts and are being considered together. The claims seek notice pay and a redundancy payment. The case called today for a preliminary hearing as to the identity of the claimants’ employer (ie the party who is liable for the remedy claimed by the claimants).[2]Mr Currie represented both claimants. Mr Stephen represented the first respondent. Ms Paton represented the third respondent. A bundle of productions had been produced by the respondents.[3]Mr Currie explained that the claimants were no longer seeking any remedy against the second respondent (which had in any event been struck off the register of companies). Issues arising[4]The issue for the Hearing was in sharp focus. Who employed the claimants as at the date of the claimants’ dismissal? Discussion as to the current employer[5]I began by explaining to the parties the overriding objective in terms of Rule 2 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, namely of the need to ensure the matters are dealt with fairly and justly with due regard to save expense and time and act proportionately to the issues in dispute.[6]In that regard I asked Mr Currie to set out whom the claimants believed to be their employer at the relevant time when the claimants’ employment ended. His position was that both claimants understood they were employed by the first respondent as he had paid them their wages. Nothing had been provided during their employment to change their knowledge in that regard. His position was that the claimants’ employer had remained constant during their employment.[7]Mr Stephen set out what the first respondent’s position was. The first respondent maintains that he was never the claimants’ employer as the claimants were originally employed by a partnership (of which the claimant was a partner). From 1 February 2014 the partnership (the claimants’ then employer) transferred the business to the second respondent. From June 2018 the third respondent became the claimants’ employer. That was accepted by the third respondent. Ms Paton confirmed this was correct.[8]The first respondent was also an employee of the third respondent.[9]Ms Paton noted that there was a short break (of a few days) before the third respondent took control of the business which employed the claimants.[10]Mr Currie stated that the claimants had not been told any of this during their employment and it was only following their dismissal and following the claimants’ research and the communications that have since been produced that the claimants understood their employer may have changed.[11]Mr Currie stated that nothing had ever been issued in writing during the claimants’ employment, whether by way of written statement or information as to any changes in employer or otherwise.[12]In the course of the discussion Mr Currie indicated that the claimants were prepared to accept that there was evidence that their employers did change (albeit this was not disclosed during their employment).[13]Mr Currie then explained that upon the claimants’ last day of employment they were issued with a number of printed payslips (the first they had received) and a written statement. This information appeared to show that the third respondent was the claimants’ employer as at the date of their dismissal (if the information contained within it was accurate).[14]Mr Currie then produced a bundle of papers, some of which seemed to duplicate those provided by the respondents. This contained the information to which he had referred.[15]I gave the parties a short adjournment to consider the papers that had been produced and to allow Mr Currie to take instructions as to his position, given the information that had been provided and the discussion that had taken place, including the position that the respondents were adopting which had been carefully set out orally (and with reference to some of the productions that were lodged).[16]Following the adjournment Mr Currie explained that he had taken instructions and considered the matter in detail in light of the productions and discussion. Both claimants were able to advise the Tribunal that they were prepared to accept that the third respondent was in fact (and as a matter of law) the claimants’ employer as at the relevant date. Mr Currie explained that this decision was arrived at following careful consideration of all the circumstances.[17]Mr Currie also advised the Tribunal that he was formally withdrawing the claims as against the first and second respondent. I explained to him the consequences of doing so, particularly in light of Rule 52 and the option of seeking no dismissal judgment (and the consequences of a dismissal judgment, namely the inability to raise a claim from the same facts in a different forum).[18]Following consideration of the issues, Mr Currie sought a dismissal judgment in respect of both the first and second respondents, following their withdrawal.[19]Mr Stephen advised that there would be no further application or motion from the first respondent whether by way of expenses or otherwise. Next steps[20]I then moved on to consider how best to progress the case to a conclusion given the issue as to the claimants’ employer had been agreed. Both the claimant and third respondent asked that the matter be remitted to a full hearing to deal with the outstanding issues.[21]It was agreed that the outstanding issues were:a. Is the claimants’ employment with the third respondent continuous from the commencement of their employment?b. If not, when did the claimants commence their employment with the third respondent?c. Are the claimants entitled to a redundancy payment and notice pay from the third respondent and if so at what amount?[22]I noted that the first question is not straightforward since there appeared to be the potential for a number of transfers between different legal entities during the claimants’ employment. This had been noted by My Stephen and papers had been lodged that showed potential transfers of various undertakings during the period of the claimants’ employment.[23]The answer to the first question would require an analysis as to what happened for the duration of the claimant’s employment, and whether under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the claimants’ employment transferred by operation of law.[24]Both the claimants’ and third respondents’ agent undertook to work together to consider this issue and see whether consensus emerged and if not, to ensure that they identified the appropriate documentation and witnesses to ensure the matter could be fully and properly dealt with at the hearing.[25]Ms Paton would work with Mr Currie to seek to establish whether agreement can be reached as to continuous employment, and if not, ensure the issues in dispute were clearly identified and the evidence needed to resolve these issues was put before the Tribunal.[26]The parties would liase and identify days in June 2019 that suited both parties (and their relevant witnesses) and write to the Tribunal with these dates to allow a hearing to be fixed. The parties agreed that one day would be sufficient as they would work together with a view to seeking to agree as much evidence as possible and identify relevant productions and witnesses[27]Mr Currie undertook to prepare a joint bundle of productions within 14 days prior to the date a hearing was fixed and Ms Paton would ensure her productions were included.[28]It was agreed that no orders were necessary given the foregoing agreement and desire of the parties to work together to focus the issues, prepare the relevant information and ensure the matter was progressed in accordance with the overriding objective.[1]The claimants presented a claim to the Employment Tribunal on 2 September 2018 alleging they were entitled to receive a redundancy payment and payment of notice of termination of employment.[2]The claimants initially noted three possible employers: Ralphael Pacitti, first respondent; G E P Enterprises Ltd, second respondent and GGL Catering Ltd, third respondent.[3]A Preliminary Hearing took place on 28 February 2019 to determine the correct identity of the employer.[4]An Employment Judge issued a Judgment dated 8 March 2019, in which he noted the claims against the first and second respondent were dismissed following withdrawal by the claimants, and the claims against the third respondent were remitted to a one day hearing. The Employment Judge noted the issues to be determined at that hearing would be:(i) whether the claimants’ employment with the third respondent was continuous from the date of commencement of their employment;(ii) if not, when did the claimants commence their employment with the third respondent and(iii) are the claimants entitled to a redundancy payment and notice pay from the third respondent and if so, at what amount.[5]The response of the third respondent was struck out in a Judgment dated 27 August 2019 because the respondent had failed on four occasions to respond to correspondence from the tribunal.[6]I heard evidence from the claimants, and I was referred to a number of documents. I, on the basis of the evidence before me, made the following material findings of fact.Findings of fact
[7]Mr Anthony Currie commenced employment on 6 July 2000. He was employed as a Chef.[8]Mr Currie had initially been employed by Cathal Maguire Ltd, a company owned by Mr Darren Fields.[9]Mr Fields informed Mr Currie that he was selling the business to Mr Ralph Pacitti in July 2007.[10]Mr Currie continued to work 40 hours per week as a Chef. He was paid an hourly wage of £9.50.[11]Mr Pacitti subsequently transferred the business to his son, Giancarlo Pacitti, who owned a company called GEP Enterprises Ltd.[12]Mr Currie was not informed about this transfer, nor the subsequent transfer to GGL Catering Ltd.[13]GEP Enterprises Ltd subsequently transferred the business to GGL Catering Ltd (a company owned by Mr Ralph Pacitti’s younger son, Luciano Pacitti). This transfer occurred on or about late March/early April 2017.[14]Mr Currie was given a letter dated 1 June 2018 entitled Notice of Termination of Employment (page 17). The letter, which was handed to Mr Currie on 8 June, confirmed his employment would terminate on 15 June 2018 and that he would be paid one week’s notice and holiday pay. The letter also enclosed a Principal Statement of Employment dated 10 April 2017 (page 14) which noted the date of employment as being 23 March 2017, the hours of work as being 30 per week and the rate of pay as being the national minimum wage. These particulars were incorrect.[15]Mr Currie worked continuously throughout the period of his employment from 6 July 2000 until his employment terminated on 15 June 2018. He worked 40 hours per week throughout this period and earned an hourly rate of £9.50. A pay slip from GGL Catering Ltd for the week 7 April 2017 was produced at page 15 confirming the claimant worked 40 hours for an hourly rate of £9.50. The gross pay was £380 and the net pay was £326.64. A further pay slip for 14 April 2017 (page 16) confirmed these details.[16]Ms McCulloch commenced employment in May 2006. She was employed by Cathal Maguire Ltd as a Shop Assistant, working 40 hours per week.[17]Mr Fields informed Ms McCulloch that the business had been sold to Mr Ralph Pacitti. Ms McCulloch’s employment transferred to Mr Ralph Pacitti in June 2007.[18]Ms McCulloch was not informed about subsequent transfers of the business to GEP Enterprises Ltd in April 2017 and then to GGL Catering Ltd in March/April 2017.[19]Ms McCulloch was informed by Mr Ralph Pacitti in early March 2018 that her employment would be terminating because the building had to close. This was subsequently confirmed by Luciano Pacitti on 8 June 2018. Ms McCulloch was given a letter (page 21) confirming notice of termination of employment, and giving one week’s notice.[20]Ms McCulloch queried why she was not being paid a redundancy payment and 12 weeks’ notice. She was advised by Mr Luciano Pacitti that this was because she had only worked for him for a year.[21]Ms McCulloch was handed the Principal Statement of Employment (page 18) as she was leaving the premises on the last day of her employment. The Statement, dated 10 April 2017, referred to Ms McCulloch working 30 hours per week. This was incorrect because Ms McCulloch had, since 2007, worked 38 hours per week.[22]Ms McCulloch produced two pay slips (pages 19 and 20) showing she worked 38 hours for a rate of £7.50 per hour, giving a gross weekly pay of £285, and a net weekly pay of £257.04. Discussion and Decision[23]I firstly had regard to the ET3s presented by the three respondents. The first respondent’s ET3 suggested the claimants had not been employed by Mr Ralph Pacitti personally, but by a partnership called Arcaffe TSC. The ET3 asserted the claimants’ employment transferred (by virtue of the Transfer of Undertakings Protection of Employment Regulations – TUPE) to GEP Enterprises Ltd with effect from 1 April 2014. (It is not material to this case, but I noted the assertion the claimants had been employed by Arcaffe TSC rather than Mr Ralph Pacitti personally was not supported by a Minute of Agreement for the sale of the business which named Mr Ralph Pacitti personally as the seller).[24]The ET3 response for GEP Enterprises Ltd accepted there was a TUPE transfer of staff at the time of the transfer which occurred on or about 1 February 2014. The ET3 response also referred to GEP Enterprises Ltd being in liquidation and stated: “when GEP Enterprises ceased trading the next business that opened TUPED everything into their company”.[25]The ET3 response from GGL Catering Ltd suggested Mr Currie had been offered a trial period and that his employment had started on1 April 2017.[26]The third respondent was asked to produce information and documentation to clarify the basis upon which it had taken over the business from GGL Enterprises Ltd. The third respondent failed to respond to this correspondence and this ultimately led to their ET3 response being struck out.[27]I accepted the claimants’ evidence regarding the fact they were not informed of any subsequent transfer after Mr Ralph Pacitti acquired the business. They had understood they worked for Mr Ralph Pacitti in a family run business.[28]I found as a matter of fact that the claimants worked the same number of hours on a continuous basis: there was no break in service. I also preferred the claimants’ evidence that they had not been asked to work a trial period.[29]The evidence suggested there had been a seamless transfer of the business from GGL Enterprises Ltd to GGL Catering Ltd. The claimants’ employment TUPE transferred from GEL Enterprises Ltd to GGL Catering Ltd in late March or early April 2017.[30]The effect of the TUPE transfer to GGL Catering was that the claimants’ employment transferred to GGL Catering Ltd with continuity of service preserved.[31]Mr Luciano Pacitti, for GGL Catering Ltd, gave notice of termination of employment effective on 15 June 2018. The reason for the termination of employment was redundancy.[32]I decided Mr Currie is entitled to be paid a redundancy payment and 11 weeks’ notice from GGL Catering Ltd.[33]I calculate the redundancy payment to be £9,690 (being 25.5 weeks x £380 gross per week).[34]I calculate the payment of notice to be £3,593 (being 11 weeks x £326.64 net per week).[35]I decided Ms McCulloch is entitled to be paid a redundancy payment and 11 weeks’ notice from GGL Catering Ltd.[36]I calculate the redundancy payment to be £4,909 (being 15.5 weeks x £297.54).[37]I calculate the payment of notice to be £2,827 (being 11 weeks x £257.04 net per week).