Miss P Harkins v Irene Duffy T/a Caulfield Flowers: 4122256/2018
JUDGMENT
[1]The complaint of Holiday Pay, having been withdrawn by the claimant, is dismissed under Rule 52 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Date of Judgment : 27 February 2019[2]JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Employment Tribunal is that: -(1) Having heard oral submissions from the claimant, and the respondent, at this Hearing, the Tribunal, in terms of Rule 48 of the Employment Tribunals Rules of Procedure 2013, converted the listed Final Hearing into a Preliminary Hearing.(2) Further, having heard both parties, and reserved judgment for private deliberation, the Tribunal grants the respondent’s opposed application made at this Hearing , under Rule 20 of the Employment Tribunals Rules of Procedure 2013, for an extension of time for presenting her E.T. Z4 (WR) ET3 response and, having done so, the Tribunal allows the ET3 response submitted late for the respondent at this Hearing to be accepted by the Tribunal, and the case to proceed as defended.(3) Instructs the clerk to the Tribunal to serve a copy of the now accepted ET3 response on the claimant, and on ACAS, when issuing this Judgment to both parties.(4) Further, the Tribunal orders the claim and response to be listed for a one day Final Hearing before Employment Judge Ian McPherson, sitting alone, at the Glasgow Employment Tribunal, on a date to be hereinafter fixed, following receipt of completed date listing stencils issued to both parties, in the listing period April, May or June 2019, listing the case for full disposal, including remedy if appropriate, including any preliminary issues that arise from the respondent’s stated grounds of defence.(5) Notes and records that as the claim is now defended by the respondent, and liability for redundancy pay, and notice pay claimed as owed to the claimant is denied by the respondent, who disputes that the claimant’s employment was terminated by her, and who disputes there was any redundancy situation, and who further disputes the date from which she might be liable, if at all, the respondent asserting the claimant had less than 2 years’ continuous service with her as a sole trader, the Tribunal orders that the claimant will be required to lead her evidence first, followed by evidence from the respondent, parties having confirmed that there will be no further witnesses led at that Final Hearing.(6) In respect of the respondent’s admission at this Hearing that she is liable to pay 2 weeks’ outstanding holiday pay to the claimant, in the agreed amount of Two hundred and twenty pounds (£220), the Tribunal has issued case management directions under separate cover.REASONS
[1]This case called before me on the morning of Wednesday, 16 January 2019, at 10.00am, for a Final Hearing, further to Notice of Claim and Notice of Final Hearing issued by the Tribunal to both parties on 5 November 2018.[2]Following ACAS early conciliation between 30 September and 1 October 2018, the claimant, who is representing herself, presented an ET1 claim form to the Employment Tribunal, on 1 November 2018, complaining that the respondent owed her a redundancy payment, as well as notice pay and holiday pay, following the end of her employment with the respondent as a Florist on 31 August 2018.[3]In the event that her claim was to be successful, the claimant sought an award of compensation from the Tribunal. She did not, however, detail the amount of compensation that she was seeking, and, accordingly, there was no explanation for how she had calculated any sum being sought from the respondent.[4]The claim was accepted by the Tribunal on 5 November 2018, and a copy of the claim was served on the respondent, on that date, requiring her to lodge a ET3 response at the Glasgow Tribunal office by 3 December 2018. In that Notice of Claim, it was explained to the respondent that if her response was not received by 3 December 2018, and no extension of time had been agreed by an Employment Judge before that date, then she would not be entitled to defend the claim.[5]It was further explained that, where no response was received or accepted, an Employment Judge might issue a Judgment against her without a Hearing and she would only be allowed to participate in any Hearing to the extent permitted by an Employment Judge.[6]Further, the Notice of Claim and Notice of Final Hearing, sent to both parties by the Tribunal on 5 November 2018, stating that the claim would be heard by an Employment Judge sitting alone, and that one hour had been allocated to hear the evidence and decide the claim, including any preliminary issues.[7]As the figures for compensation being sought in the claim were not set out in the claim, the letter from the Tribunal further directed that the claimant must send to the respondent within 14 days details of the amount claimed and how it was calculated, and a copy of that calculation should be brought to this Hearing. Additional Information from the Claimant[8]No ET3 response was lodged by, or on behalf of, the respondent, by the due date of 3 December 2018. On 11 December 2018, Employment Judge Laura Doherty, having noted that no response to the claim had been received, and while it may therefore have been possible to issue a Judgment without the need for a Hearing, she considered that there was insufficient information to issue a Judgment at that stage, and therefore she required the claimant to provide additional information within 14 days to allow a Judgment to be issued against the respondent.[9]On 11 December 2018, the claimant e-mailed the Tribunal office, stating that her wages were £110 per week, and she was looking for “7 weeks’ pay for the 7 years Irene Duffy took over the business and 2 weeks’ holiday pay. I was owed £990 in total.” Thereafter, on 17 December 2018, Employment Judge Jane Garvie instructed that the claimant be asked to clarify whether the respondent was a limited company, and if so, what was its name.[10]In reply, on 18 December 2018, the claimant again e-mailed the Tribunal office, and without identifying the name of the company involved, stated that she had worked for the company for 20 plus years when it was a William Bell who owned it, when the respondent, Irene Duffy and her husband took over that company 7 years ago, they kept her on, which she was happy about, and when Irene Duffy and her husband split up the respondent continued the running of the shop, and to employ the claimant.[11]In response to the claimant’s e-mail of 18 December 2018, on referral to Employment Judge Lucy Wiseman, on 28 December 2018, she confirmed that the Final Hearing set for 16 January 2019 would go ahead, and that the claimant should attend this Hearing and bring with her any paperwork she had in relation to her case, for example letters, e-mails, contract, payslips, and P60. By return, on 28 December 2018, the claimant advised the Tribunal office that she was looking for her previous year’s P60, but she did have a P45, and that she would bring that to the Hearing. Correspondence from the Respondent seeking Extension of Time[12]While the respondent, Irene Duffy, had not lodged an ET3 response, by 3 December 2018, nor sought any extension of time to do so, she e-mailed the Glasgow Tribunal office on 17 December 2018 apologising for being late, getting back to the Tribunal, and explaining that this was due to: “me taking my stuff to Citizen Advice Centre Alexandria, who took my paperwork from yourselves along with some other stuff I need help with, they in turn sent the paperwork to another Citizens Advice Centre, to look at then I had been waiting on them getting back to me which they did eventually to tell me there was nothing they can do to help me as there is a conflict of interest which I presume is Pauleen is also using them. So I would like to ask for an extension firstly, then because I still don’t have paperwork back from Citizens Advice, I would like to extend to the Tribunal my side of things.”[13]Following referral of the respondent’s e-mail of 17 December 2018 to Employment Judge Jane Garvie, on 18 December 2018, she directed that the respondent should submit a draft ET3 response form, by no later than 21 December 2018, and a blank copy of an ET3 response form was e-mailed to the respondent by the Tribunal staff for that purpose.[14]A copy of her e-mail of 17 December 2018, being her application for an extension of time, and a copy of the Tribunal’s letter to the respondent, were sent to the claimant to enable her to provide her comments on the respondent’s application for an extension of time. Claimant’s Reply[15]Having received the Tribunal’s letter of 18 December 2018, the claimant replied to the Tribunal, stating that “I would like the case to go ahead on the date issued as it is causing so much stress and upset to myself.”[16]Further, on 28 December 2018, the claimant again e-mailed the Tribunal office, seeking an update on her case, and reiterating her preference for the case to go ahead as scheduled as it was causing her a lot of stress, and she disputed the truth of what the respondent had stated in her e-mail of 17 December 2018 to the Tribunal, and that she had had plenty of time to get any paperwork she claims the Citizens Advice might have had back from then. Final Hearing before this Tribunal[17]When the case called, shortly after 10.00am, the claimant was in attendance, unrepresented, and without any witnesses. The respondent was in attendance, also unrepresented, and without any witnesses, although she was accompanied by a Mr Gavin Brand, for moral support. I was advised that Mr Brand was there in that observer capacity only, and that he was not a witness for the respondent.[18]Mrs Duffy, the respondent, not having entered a response, and so not being entitled to participate in the Final Hearing, except to the extent that might be allowed by me as the Employment Judge, had handed to the Tribunal clerk, prior to the start of this Hearing, a handwritten, completed ET3 response form, defending the claim, and she sought to invite me to allow an extension of time so that she might now defend the claim brought against her by Miss Harkins.[19]Miss Harkins had attended, and provided to the Tribunal, with copy to the respondent, a small bundle of productions, to be referred to in her evidence to the Tribunal. No productions, or any documentation whatsoever, were provided by the respondent, Mrs Duffy, who stated that her paperwork had been handed to the Citizens Advice Bureau, and she did not have a copy of the claim form, or any correspondence from the Tribunal.[20]Initially, Mrs Duffy insisted that she had, in reply to the Tribunal’s e-mail of 18 December 2018, including a blank ET3 response for completion and return, completed an ET3, having opened it on Adobe, and then saved it, and emailed that back to the Tribunal.[21]When I indicated that that ET3 response, if returned by her, was not on the case file, the respondent, Mrs Duffy, insisted that she had e-mailed it, and, accessing her mobile phone, she identified that she had done so by an e-mail on 18 December 2018, for which she had received an acknowledgement of receipt from the Tribunal’s system.[22]Following an adjournment, for the clerk to the Tribunal to enquire of the Glasgow Tribunal inbox, when proceedings resumed, after that short adjournment, the respondent accepted that while she thought she had submitted a completed, ET3 response, defending the claim, it was clear from her e-mail of 18 December 2018 to the Tribunal, at 16:49, that there was no attachment, and that her only response on that occasion was to advise the Clerk to the Tribunal: “thank you for your time”.[23]As such, it was agreed, that she would refer to the handwritten, completed ET3 response that she had completed at the Tribunal office, prior to the start of this Hearing, and invite me to allow her an extension of time based on that ET3 response form, a copy of which was provided to the claimant, in order that she could consider its terms, and advise the Tribunal as to whether or not she opposed Mrs Duffy’s application for an extension of time.[24]By this stage, having heard from both the claimant, and the respondent, I advised them of the terms of the Tribunal’s overriding objective, under Rule 2 of the Employment Tribunal Rules of Procedure 2013, which provides that the Tribunal is to deal with cases fairly and justly, and that 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 issues;(c) avoiding unnecessary formality and seeking flexibility of the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense.[25]Further, Rule 2 also provides that the Tribunal shall seek to give effect to the overriding objective when exercising any power given to it by the Rules, and parties shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and the Tribunal.Relevant Law
[26]As neither party was represented, and both advised me that they had no knowledge of Tribunal practice or procedure, or the relevant law, I advised both of them that, consistent with my Rule 2 duty to deal with the case fairly and justly, I could inform them, in general paraphrased terms, of the applicable legal test for a Rule 20 application, and then invite their comments, by way of addressing the factors identified in the EAT case law.[27]I explained to them both that this would include me seeking the explanation or lack of explanation for the delay in presenting a response to the claim, the merits of the respondent’s defence, the balance of prejudice each party would suffer should an extension be granted or refused, and so why they invited me to grant or, as the case may be, refuse the respondent’s application.[28]Specifically, I read to them from paragraphs 16, 17, and 18 of the judgment of Mrs Justice Simler DBE, then President of the Employment Appeal Tribunal, in Grant v Asda [2017] UKEAT/0231/16/ BA, and reported at [2017] ICR D17, the full terms of which extracts I reproduce here for ease of reference: “16. Rule 20 of the ET Rules provides as follows: “(1) An application for an extension of time for presenting a response shall be presented in writing and copied to the claimant. It shall set out the reason why the extension is sought and shall, except where the time limit has not yet expired, be accompanied by a draft of the response which the respondent wishes to present or an explanation of why that is not possible and if the respondent wishes to request a hearing this shall be requested in the application. (2) The claimant may within 7 days of receipt of the application give reasons in writing explaining why the application is opposed. (3) An Employment Judge may determine the application without a hearing. (4) If the decision is to refuse an extension, any prior rejection of the response shall stand. If the decision is to allow an extension, any judgment issued under rule 21 shall be set aside.”17. Again, unlike its predecessor, Rule 20 permits an application for an extension of time after the time limit has expired. Rule 20 is otherwise silent as to how the discretion to extend time for presenting an ET3 is to be exercised. Guidance on the approach to be adopted by tribunals in exercising their discretion was given in Kwik Save Stores Ltd v Swain [1997] ICR 49 EAT, a case concerning a respondent’s application for an extension of time under the Employment Tribunal Rules 1993. Mummery J gave guidance at pages 54 to 55: “The discretionary factors The explanation for the delay which has necessitated the application for an extension is always an important factor in the exercise of the discretion. An applicant for an extension of time should explain why he has not complied with the time limits. The tribunal is entitled to take into account the nature of the explanation and to form a view about it. The tribunal may form the view that it is a case of procedural abuse, questionable tactics, even, in some cases, intentional default. In other cases it may form the view that the delay is the result of a genuine misunderstanding or an accidental or understandable oversight. In each case it is for the tribunal to decide what weight to give to this factor in the exercise of the discretion. In general, the more serious the delay, the more important it is for an applicant for an extension of time to provide a satisfactory explanation which is full, as well as honest. In some cases, the explanation, or lack of it, may be a decisive factor in the exercise of the discretion, but it is important to note that it is not the only factor to be considered. The process of exercising a discretion involves taking into account all relevant factors, weighing and balancing them one against the other and reaching a conclusion which is objectively justified on the grounds of reason and justice. An important part of exercising this discretion is to ask these questions: what prejudice will the applicant for an extension of time suffer if the extension is refused? What prejudice will the other party suffer is the extension is granted? If the likely prejudice to the applicant for an extension outweighs the likely prejudice to the other party, then that is a factor in favour in granting the extension of time, but it is not always decisive. There may be countervailing factors. It is this process of judgment that often renders the exercise of a discretion more difficult than the process of finding facts in dispute and applying them to a rule of law not tempered by discretion. It is well established that another factor to be taken into account in deciding whether to grant an extension of time is what may be called the merits factor identified by Sir Thomas Bingham MR in Costellow v Somerset County Council [1993] 1 WLR 256, 263: “a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.” Thus, if a defence is shown to have some merit in it, justice will often favour the granting of an extension of time, since otherwise there will never be a full hearing of the claim on the merits. If no extension of time is granted for entering a notice of appearance, the industrial tribunal will only hear one side of the case. It will decide it without hearing the other side. The result may be that an applicant wins a case and obtains remedies to which he would not be entitled if the other side had been heard. The respondent may be held liable for a wrong which he has not committed. This does not mean that a party has a right to an extension of time on the basis that, if he is not granted one, he will be unjustly denied a hearing. The applicant for an extension has only a reasonable expectation that the discretion relating to extensions of time will be exercised in a fair, reasonable and principled manner. That will involve some consideration of the merits of his case.”18. The approach set out by Mummery J was subsequently adopted in relation to the 2004 Rules in Pendragon plc (t/a CD Bramall Bradford) v Copus [2005] ICR 1671 EAT. In our judgment, it applies with equal force to the 2013 Rules. So, in exercising this discretion, tribunals must take account of all relevant factors, including the explanation or lack of explanation for the delay in presenting a response to the claim, the merits of the respondent’s defence, the balance of prejudice each party would suffer should an extension be granted or refused, and must then reach a conclusion that is objectively justified on the grounds of reason and justice and, we add, that is consistent with the overriding objective set out in Rule 2 of the ET Rules.[29]While Rule 20(3) provides that an Employment Judge may determine a Rule 20 application without a Hearing, I explained to both parties that, as both were in attendance, and consistent with the Tribunal’s overriding objective, under Rule 2, to deal with cases fairly and justly, including avoiding delay, and saving expense, it would be appropriate to proceed, at this Hearing, to consider the respondent’s Rule 20 application to the Tribunal at this Hearing.[30]The claimant stated that, having had the opportunity to read the respondent’s proposed ET3 response, she wanted her case to go ahead at this Hearing, as she has been trying since 15 September 2018 to set this out with Mrs Duffy, and as such, she objected to Mrs Duffy being allowed to defend the case at this late stage. Respondent’s Submissions[31]In reply, Mrs Duffy, the respondent, stated she was happy to address me on the factors identified in the case law, and she did not require an adjournment before doing so, as she has had months to think about this case. She stated that, once she had received the Notice of Claim letter, from the Tribunal, on or about 7 or 8 November 2018, she took everything to the Citizens Advice Bureau along with “other stuff”, as they were dealing with debt matters which she had, and about a debt pack for her florist business.[32]She openly and frankly conceded that she had never been to a Tribunal before, and as such “I don’t have a clue”. She recalled going to the Citizens Advice Bureau (“CAB”) around the end of November 2018, and certainly before the date the ET3 response was due on 3 December 2018, of which date she stated she was aware, having read the Tribunal’s Notice of Claim letter of 5 November 2018.[33]Further, the respondent stated that, as indicated in her e-mail of 17 December 2018 to the Tribunal, she had been to the CAB, and later got a letter from them saying that they were not able to assist her, due to some conflict of interest, but they did not say what that conflict was, and she had assumed that they were acting for the claimant.[34]She stated she had that letter from the CAB, but she did not have it with her at this Hearing, as she had brought along no documents for consideration by the Tribunal. Thereafter, Mrs Duffy spoke of “everything went haywire”, over the Christmas period, and the CAB office was shut.[35]She also referred to ACAS bring in contact with her, which she thought must have been from the end of September 2018 or may be after she had received the claimant’s recorded delivery letter of 15 September 2018, a copy of which the claimant had provided to this Tribunal in her bundle of documents lodged at the start of this Hearing.[36]The respondent advised me that she did not reply to the claimant’s letter of 15 September 2018, because she did not have an insolvency reference number. She recalled telling the claimant that before the shop, at 171 High Street, Dumbarton was shutting which she recalled was on 10 or 11 September 2018, after she had cleared the shop out and given the keys back to the landlord, a Campbell Gillies after he demanded that, in light of rent arrears, she pay up, or get out.[37]Mrs Duffy stated that she recalled getting a letter from the Tribunal, on 18 December 2018 and she really thought she had filled in and returned the ET3 response but, given the terms of her e-mail, as read to her from the casefile by the Judge, the respondent accepted that she had obviously not sent it in to the Tribunal office.[38]Further, the respondent accepted that she had not corresponded with the Tribunal office since her e-mail on 18 December 2018, and, while she explained, she thought it odd that she had not heard from the Tribunal, since she thought she had sent in her ET3 response, she phoned on Tuesday, 15 January 2019, at around 9.15am, and spoke to a female, whose name, she could not recall, who confirmed that the case was on, and at 10am, and she did not ask that Tribunal clerk anything further, as “there had been a lot more going on”.[39]When I asked Mrs Duffy to be more specific, rather than make the generalised statement that there had been “a lot more going on”, in recent months, she then stated that she was going to have to go to Court about her divorce, and that “a whole host of things were all coming to a head”.[40]In a quickfire delivery, she then referred to her landlord wanting her out of the shop, having to deal with phones, electricity and bins, during the shop clearout, and, at that stage, she became upset, when stating that she had been in contact with her solicitor about divorce proceedings in Glasgow Sheriff Court.[41]When I offered the respondent an adjournment, in order that she might reflect, and compose herself, before continuing, she declined the opportunity for an adjournment, and stated that she wanted to “crack on”. She then proceeded to detail the background to her divorce proceedings against her husband, Gavin Duffy, sometime in October or November 2018, leading to Adairs, Solicitors, Dumbarton, raising proceedings on her behalf at Glasgow Sheriff Court, for a court date, on some Wednesday, in November 2018.[42]The respondent became somewhat emotional in relating this matter, and advised me that she had withdrawn her claim for divorce against her husband, as he had put her daughter up against her as a witness, and she then proceeded, again with some emotion, to relate, and recount to me, difficulties with her landlord, having to close the shop, around the end of September 2018, after receiving a “pay up or get out” text message from her landlord, Campbell Gillies.[43]Thereafter, Mrs Duffy related how, as a sole trader, she had been operating the florist business from the premises at 171 High Street, Dumbarton, from the time of dissolution of Glasgow Flowers Ltd, up to and on or around 10 or 11 September 2018, when the shop was cleared out, and she returned the keys to the landlord.[44]She spoke of having to borrow rent money off her sister, and having to pay outstanding rent arrears to Mr Gillies, but acknowledged that this was not a factor in the period November/December 2018, or January 2019, the period under review as regards what had, or had not happened in the period between 5 November 2018, when the Notice of Claim was served on her, and the date of this Hearing, when she had completed at the Tribunal office an ET3 response.[45]Further, and again with a degree of emotion, the respondent then referred to her nana, who had brought her up, and she was therefore more like a mum to her, and how she was advised, through her sister, from around midNovember 2018, that the care home in which her nana resides is closing down, and she is to be moved to another residential establishment sometime around the middle of February 2019.[46]The respondent further advised me that another factor to be taken into account, was the fact that she owes around £7,000, to the Flower Market at Blochairn, and they want a payment plan from her, for repayment of that debt, and she stated that that is a matter which has been ongoing since September 2018, albeit only through correspondence, and phone calls, but as yet, no court proceedings against her for the unpaid debt.[47]Having heard the respondent’s explanation for the delay in her lodging her ET3 response form, I then asked her to address the matter of prejudice to her, if she was not allowed to lodge her ET3 response late, and so defend the claim, as also the matter of prejudice to the claimant, if I were to allow her Rule 20 application.[48]In reply to my enquiry of her, about this factor for my consideration, Mrs Duffy stated that she thought the claimant would lose her claim before the Tribunal, and she was sorry that she could not really think of any prejudice to her, if she was not allowed to defend the claim, as she wished to do.[49]If her application for an extension of time were to be allowed, and her ET3 response accepted, she stated that she did not recognise that there would be any prejudice to the claimant, and she again expressed the view that, she thought, the claimant would lose, and then added that she thought the claimant is owed some money, but not as much as she thinks.[50]Mrs Duffy added that she did not know if she owed the claimant any money, because while the shop in Dumbarton was shut, her business is still running, and the claimant had not spoken to her, and there had not been an opportunity for them to discuss matters.[51]She also advised me that, when the claimant asked her for her P45, she simply gave it to her, and she accepted that the copy P45 produced by the claimant, in her bundle of documents, issued on 5 September 2018, confirmed the claimant’s date of leaving her employment as 31 August 2018.[52]By way of further explanation of her position, the respondent stated that the claimant had been employed by her, on the basis of 16 hours per week, starting on 23 November 2016, and that her employment before that date, with a William Bell, was through Glasgow Flowers Ltd.[53]She disputed there was any liability on her part to the claimant before 23 November 2016, as at that stage, the claimant’s employer was Glasgow Flowers Ltd, as shown on the claimant’s payslips. From November 2016, Mrs Duffy stated that she was a sole trader, and she had employed the claimant in her own right, and not through any company.[54]The respondent further advised me that, as she sees matters, the claimant left her employment, and while she tried to speak to the claimant, she stated that she did not write to her terminating her employment, indeed, she did not write to her at all, nor did the claimant send her anything by way of a resignation, albeit, the respondent advised me, she understood the claimant had been looking for another job since February 2018.[55]When I asked Mrs Duffy whether, in the period of her sole trading of Caulfield Flowers, she had issued the claimant with any written particulars of employment, or contract of employment, Mrs Duffy stated that she had not, and that she did not know that that was a legal obligation on her as an employer.[56]She agreed that the claimant’s earnings, while employed by her, were at the rate of £110 per week, which was a net sum, as she advised that, although the claimant was on PAYE, she did not earn enough, to have those deductions, and she further confirmed that, as per the claimant’s P45, produced in the claimant’s bundle at the start of this Hearing, the total pay paid to the claimant in the period 6 April to 31 August 2018 was £2,383.75.[57]As regards the business of Caulfield Flowers, the respondent advised me that she now runs that from her home address, in Alexandria, being the address on her ET3 response form, and that, when it operated from 171 High Street, Dumbarton, there was only two staff, namely herself, and the claimant. She stated that she continues to run the business, but it is now run through the website, and Facebook page, as per the copy documents lodged by the claimant in her bundle.[58]Further, the respondent advised that she had worked with the claimant in the High Street shop for some 7 years, and that the claimant had been a Florist for some 20 plus years. She referred to how she had been running the business for only some 7 years, and, when asked if she was familiar with the Transfer of Undertaking Regulations (“TUPE”) the claimant stated that she did not know what that was, or its implications.[59]Mrs Duffy further stated that the claimant had only been her employee from November 2016, when she was running the business as a sole trader, and, as such, she contests the claimant’s claim for 7 weeks’ notice, and redundancy payments, as she has not been the claimant’s employer for the period stated by the claimant in her ET1 claim form, being from 12 January 2011. She queried whether the claimant should not be suing William Bell for anything more than the period when she was the claimant’s employer.[60]Further, Mrs Duffy accepted that the claimant is due 2 weeks’ holiday pay, amounting to £220, but she disputed the claimant’s claim for notice pay, and redundancy pay, and as such stated that those disputed matters required to be determined by the Tribunal, at a defended hearing.[61]She did not accept that she owed the claimant the sum of £990, referred to in the claimant’s e-mail to the Tribunal of 11 December 2018 and, if she was liable for redundancy pay, then it should only be what she owes for the period of her sole trader employment of the claimant, and she was insistent that she has never once done anybody out of money that they are due.[62]Mrs Duffy stated that, at best, she owed the claimant £440, being £220, for the agreed holiday pay and £220 for notice pay, but stated that the claimant had never been made redundant by her, she did not terminate her employment, and that the claimant’s job as a Florist was there for her to come back to, but the claimant left, she asked for her P45, and so Mrs Duffy issued it to the claimant.[63]Mrs Duffy further stated that she was aware that, if you make an employee redundant, then you need to offer them something to keep them on, and she accepted that the claimant, as formerly employed by her, as a sole trader, was employed to work at the shop at 171 High Street, Dumbarton, and that that shop had ceased trading on 10 or 11 September 2018, and thus there was no job for the claimant at that location from that date.[64]That said, the respondent went on to state that she had not written to the claimant, explaining that she did not get a chance to do so, as her landlord was throwing her out of the shop, and she wanted to discuss matters with the claimant, but had been unable to do so as the claimant was taking her nephew into hospital.[65]Mrs Duffy also advised me that, as she saw things, the claimant was not made redundant by her, nor fired, nor sacked, and whatever you call it, it was simply a case that the claimant had asked for her P45, and she had provided it to the claimant. She stated that she was contesting liability for the claims brought by the claimant, and if liable, for the amount of claims that the claimant was pursuing, and that she wanted to defend the case, as she had advised the Tribunal in her email of 17 December 2018. Claimant’s Reply[66]Having heard from Mrs Duffy, as respondent, I then invited Miss Harkins, the claimant, to address me, and explain the terms for her objections to the respondent’s application for an extension of time.[67]Having listened to the respondent’s oral submissions to me, Miss Harkins started by stating that she still objected to the application for an extension of time, and as regards the explanation, and excuses provided by Mrs Duffy, the claimant stated she felt the respondent still had plenty of time to get an ET3 in on time, by 3 December 2018, if she had been to the CAB in November 2018.[68]While she had not wanted matters to progress as far as the Tribunal, which is why she had written to the claimant herself on 15 September 2018, the claimant was insistent that, at no point, was she offered a job by Mrs Duffy, as she had later found out that, while the Dumbarton shop had ceased trading, Mrs Duffy was still trading, but from her home address.[69]She had received no response from Mrs Duffy, in reply to her letter of 15 September 2018, and as such she had gone to ACAS, for early conciliation, and thereafter to this Employment Tribunal.[70]While accepting that Mrs Duffy had been “going through a bad time”, the claimant stated that so was she, and that Mrs Duffy knows what this is doing to her and that was to be seen from the terms of Mrs Duffy’s text message to her, on 23 November 2018, as produced in her bundle of documents, where the respondent had stated to her “the gloves are off”.[71]In further explanation of her objections, Miss Harkins stated that if Mrs Duffy was allowed to defend the claim, that would prejudice her as claimant. She stated that she wanted the matter dealt with at this Hearing, as it was causing her stress and upset.[72]While she had now got a part-time job, from the start of December 2018, she is staying at home with her mother, and her son, and not having been paid sums due from Mrs Duffy, she had had to get a loan to go on holiday to Florida for a holiday booked the previous year.[73]Since her employment ended at the florist, the claimant stated that she had signed on for Jobseeker’s Allowance, after 5 September 2018, but that had now stopped, once she started in her new part-time job.[74]As regards prejudice to Mrs Duffy, as respondent, if her response was not allowed, and she was not allowed to defend the claim brought against her, Miss Harkins stated that she could not see any prejudice to the respondent, and she really did not know how to respond to this matter, other than to say that she wanted this whole thing to be over.[75]Further, Miss Harkins stated that she does not think that Mrs Duffy has got a genuine excuse for not putting in her defence before this Hearing. She did not accept that she had left Mrs Duffy’s employment, and while she accepted that she had not received any letter from the respondent, sacking her, only her P45, she stated that Mrs Duffy had advised her to sign on, as she herself had had to do, and try to get a job.[76]Miss Harkins also stated that Mrs Duffy had never told her that she would be working from her house, and that there would be a job for her there. She denied that she had resigned from Mrs Duffy’s employment, and stated that if she had been told there was still a job for her, then she would gladly have taken that.[77]However, added the claimant, when Mrs Duffy was clearing out the shop, she had told her not to come in, and she described being “devastated” by what had happened. She had worked for Caulfield Florist for some 20 plus years, and the respondent had kept her on for the last 7 years, when she was her boss, and her employer, and, originally, it was the respondent and her husband, who ran the florist shop, until they split up, and it was then Mrs Duffy as a sole trader.[78]When the claimant stated that she had received payslips from Glasgow Florist Ltd, but not from the respondent, since November 2016 at least, Mrs Duffy stated that there were payslips there to be printed off, but she had not given them to the claimant, as she alleged that the claimant had told her to keep them. The claimant stated that she could not recall any such conversation.[79]Further, added Mrs Duffy, while her accountant does the week to week books for Caulfield Flowers, she advised that David McLellan, of DMC Services, had not given her any advice about being an employer, or the legal obligation on an employer to give employees itemised pay slips.[80]However, if the claimant would like her pay slips, then Mrs Duffy stated that she could get them printed off and sent to her. Mrs Duffy then gave an undertaking to the Tribunal, and the claimant, that she would send copy payslips to the claimant, within 7 days, probably by recorded delivery, rather than e-mail, but she would advise the claimant, and the Tribunal, that she had done so. Reserved Judgment and Further Procedure[81]Having heard submissions from both the claimant and respondent in person, I stated that I was reserving my Judgment, on the opposed Rule 20 application, for an extension of time, and, after a period of private deliberation, a full written Judgment and Reasons would be issued to both parties, within a few weeks.[82]I also indicated that, whatever my decision on the opposed Rule 20 application might be, the case would need to be re-listed for another day to hear evidence. Accordingly, I stated that I would arrange for the clerk to the Tribunal to send date listing letters to both parties for a Final Hearing on a date to be fixed in April, May or June 2019.[83]On my instructions, date listing stencils were issued to both parties, by the clerk to the Tribunal, on 28 January 2019, along with a covering letter from the Tribunal, as regards further procedure, and Case Management directions/Orders, for return by 8 February 2019. Discussion and Disposal[84]Having carefully considered, in chambers, during private deliberation, after this Hearing, which I converted to a Preliminary Hearing, in terms of Rule 48, rather than the listed Final Hearing, I have now come to my decision, to grant the Rule 20 application, and allow the case to proceed as defended.[85]Having carefully reflected on parties’ completing oral submissions, and the information available to the Tribunal, in the ET1 claim form, draft ET3 response, and the claimant’s bundle of documents, I was firstly satisfied that neither party was materially prejudiced by the change from Final Hearing, to Preliminary Hearing, having regard to the Tribunal’s overriding objective, under Rule 2, to deal with the case fairly and justly, including avoiding delay and saving expense.[86]As such, rather than postpone the listed Final Hearing, and refuse to allow the respondent to participate when she had appeared, made an application for an extension of time, and lodged an ET3 response, I invited Mrs Duffy to explain the reason for her delay in lodging the ET3 response, to set out her reasons why the extension of time was sought under Rule 20, and balance the relevant factors of the reason for, and length of the delay, prejudice to each party if the extension of time is either granted or not granted, as well as the merits of the respondent’s defence, as set out in the ET3 response produced by her, and her further oral explanations.[87]Having done so, I am satisfied that it is in the interests of justice to allow the respondent’s opposed Rule 20 application, for the phrase “in the interests of justice” means justice to both parties, and so I order that the case now be listed for a Final Hearing for full disposal, including remedy if appropriate, including any preliminary issues that arise from the respondent’s stated grounds of defence, on a date to be assigned by the Tribunal, having ascertained from both parties, by returning completed date listing stencils, with their availability.[88]In coming to this decision, I have taken into account both parties’ oral submissions to me, as also the relevant law, as I paraphrased to both parties, at the Hearing, and have reproduced it earlier in these Reasons, and in writing up this Judgment I also refer to the Judgment of another President of the Employment Appeal Tribunal, Mr Justice Underhill, in Thornton v Jones [2011] UKEAT/0061/11, which is in similar terms to the case law I cited to parties, and invited their specific comments upon at this Hearing.[89]While, on one view, Mrs Duffy has been very lackadaisical in her approach, she had indicated before this Hearing that she wished to defend the claim, but she failed to lodge her ET3 by 3 December 2018, or by 21 December 2018, and only did so on arrival at this Hearing.[90]Such a casual attitude to legal proceedings is not easy to understand, but from the information she provided at this Hearing, I am prepared to accept that Mrs Duffy’s failure was not willful, but caused by other things impacting on her life, and thus her ability to deal with her affairs timeously and properly to defend this claim against her at the Employment Tribunal.[91]The claimant wanted her case disposed of at this Hearing, and judgment issued in her favour. The Tribunal’s overriding objective, and the interests of justice, require that I do justice to the respondent by allowing her to be heard.[92]In balancing prejudice as between the parties, I take into account that if I refused the late ET3 response, then the respondent would not be able to defend the claims brought against her, and could end up with a judgment against her , and an order for her to pay disputed sums to the claimant, and that without having had the opportunity to put forward her case in evidence.[93]On the other hand, prejudice to the claimant will be relatively slight, and all that she loses, at this stage, is the loss of a windfall of being able to get an undefended judgment in her favour without having to give evidence, or to argue against the points now raised by the respondent in her late ET3.[94]In these circumstances, I have decided that the prejudice to the respondent outweighs any prejudice to the claimant, and that it is appropriate to let in the late ET3 response, and the merits of parties’ respective positions can be adjudicated upon by the Tribunal at a Merits Hearing, after hearing evidence from both parties.[95]I recognise that the claimant will be disappointed by this ruling, for she had hoped to attend at this Hearing, present her evidence, and await the Tribunal’s Judgment, on what she understood to be an undefended claim.[96]However, in writing up this Judgment, I take this opportunity to draw to her attention that, even if Mrs Duffy had not appeared and lodged her ET3, and had I proceeded in her absence, and awarded Judgment to the claimant, the respondent would likely thereafter have sought reconsideration of that Judgment under Rule 70, and so any undefended Judgment would then need to have been revisited in any event.[97]That too is a consideration in me deciding that, to avoid delay, and saving expense, this Rule 20 application was best dealt with at this Hearing, and the merits, or otherwise, of the claimant’s case, and the respondent’s defence, can be assessed by me, or if not available, another Employment Judge (sitting alone) at a Final Hearing on a date to be thereinafter fixed by the Tribunal.[98]What was listed as a one-hour, fast track Hearing in fact lasted around 3 hours. Unfortunately, there was insufficient time available on this Hearing date for me to have given an oral judgement on the opposed Rule 20 application, and thereafter proceeded to take evidence at a defended Final Hearing. The now defended claim will be listed at the earliest available date suitable to both parties’ availability, and the Tribunal’s listing diary. Closing Remarks[99]It is clear to me that both parties would be assisted by the benefit of some professional, independent advice in dealing with this now defended claim to this Tribunal.[100]I have taken into account that both parties are unrepresented, party litigants, as I am duty bound to do, in terms of the Tribunal’s overriding objective under Rule 2 to deal with the case fairly and justly, including ensuring, so far as practicable, that parties are on an equal footing. It is not, however, for me to act as advocate or representative for either party, for they must each take their own independent advice.[101]While to date the claimant has been acting on her own behalf, since the ET1 was lodged, as she is perfectly entitled to do, as also has the respondent, I encourage both parties to seek out independent and objective advice, whether from an employment law solicitor or other professional adviser, or from a trade union, Citizens Advice Bureau, or pro bono voluntary agency (such as the Glasgow Caledonian University or Strathclyde University Law Clinics) providing advice and assistance to individuals involved in Tribunal proceedings.[102]Further, guidance may be available to them from the Citizens Advice Scotland, and the ACAS, websites. Mrs Duffy, as an employer, may wish to consider the online guidance available to employers as regards their legal duties and responsibilities to staff.[103]In issuing this Judgment, I remind both parties that, as per Rule 3 of the Employment Tribunals Rules of Procedure 2013: Alternative dispute resolution 3. A Tribunal shall wherever practicable and appropriate encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement.[104]Given their previous long-standing working relationship, I encourage both parties to use ACAS as a means of resolving their disputes by agreement.Relevant Law
[1]This case called for hearing at Glasgow on 14 May 2019. The claimant and respondent both appeared in person. They were unrepresented. There were 2 pages of productions submitted by the claimant. Those comprised copies of text messages. The respondent did not submit any productions.[2]Evidence was heard from the claimant herself and from the respondent herself.[3]This case had been preceded by a Preliminary Hearing which had permitted the response, form ET3, to be accepted as a defence in the case although submitted late and therefore the case proceeded as defended.Background
[4]The respondent operated a business as a florist. The claimant worked for her. The claimant had previously worked for a company in which the respondent was a co-director and, it is understood, co-owner. This was Glasgow Flowers Limited. At the very end of August or beginning of September 2018 the landlord for the shop premises from which the respondent traded as a florist had issued a blunt demand that the respondent vacated the shop premises from which carried on business. This was in circumstances where rent had not been paid. That had led to a conversation between the respondent and the claimant. The claimant was of the view that she had been dismissed and that this was due to redundancy. The respondent did not agree with that, saying that no dismissal had occurred.[5]The claimant had initially sought holiday pay, redundancy pay and notice pay. During the course of the case holiday pay had been paid by the respondent to the claimant. That ground of claim had been then been withdrawn and dismissed. The claim was therefore in respect of redundancy pay and notice pay. The claimant limited her claim for redundancy pay to a seven-year period. She sought pay in respect of notice for a seven-week period.Facts
[6]The following were found to be the essential facts as admitted or proved. Background and Initial Working by the claimant[7]The claimant was born on 17 August 1980. As at 31 August 2018 she was earning £110 per week, that sum being paid to her gross and net.[8]The respondent formally traded from premises at 171 High Street Dumbarton. She was in business as a florist. There had been a flower shop there for many years. It had been operated by the Caulfield family. Mr Bell was the member of the family who operated the flower shop there until January 2011.[9]The claimant worked, initially on Saturdays, with Mr Bell in the business which was operated through a limited company HD Caulfield Limited. She subsequently obtained a full-time job there around 1997. Glasgow Flowers Limited[10]In 2011 the respondent was with her husband. They owned a company by the name of Glasgow Flowers Ltd. The opportunity arose to take on the business of Caulfield Flowers at Dumbarton Road. They took that opportunity. As part of the arrangement the premises were taken over on a leasehold basis by Glasgow Flowers Ltd. This became effective in January 2011.[11]There was no change in the running of the business in January 2011 as between the HD Caulfield Limited and Glasgow Flowers Ltd. The premises were painted and smartened up. The business however remained the same with the same staff and means of operation. The claimant commenced working for Glasgow Flowers Ltd at this point in a seamless move from HD Caulfield Limited.[12]The claimant and respondent developed a close working relationship. They were friends. Respondent trading as Glasgow Flowers[13]Unfortunately, the respondent’s marriage broke up. This was in November 2016. The respondent decided to continue with the business at 171 High Street Dumbarton but to operate that business as a sole trader. Glasgow Flowers Ltd ceased trading. There was no appointment of a liquidator or other insolvency practitioner in any capacity.[14]At time of the respondent commencing trading as a sole trader the business trading from the shop premises remained the same. The equipment and means of operating were the same. The trading name of the respondent was Glasgow Flowers. Stock formerly used by Glasgow Flowers Limited continued to be used by the respondent. The claimant understood that she was to be working for the respondent rather than for the limited company. Her days of work were reduced, by agreement, from 4 days per week to 2 days per week. Everything else, however, carried on as before.[15]Throughout this period from 2011 to 2016, and beyond until 2018, the business of the florists remained the same in that they were receiving orders for flowers from the general public and businesses who visited the shop or online. They supplied flowers for weddings, funerals and other occasions.[16]When the respondent commenced as a sole trader some firms of undertakers who had ordered flowers from the business brought that service “in-house”. Orders therefore diminished. The claimant’s hours were cut back as mentioned.[17]The claimant has at no point received any contract of employment from any of her employers. She has not received any terms and conditions of employment or any copy of employment policies. She received payslips from the respondent only in course of this Tribunal case.[18]The respondent found trading conditions very difficult. Financial pressures meant that she was unable to pay her rent in time. Mr Bell had been very understanding as a landlord. A new landlord however appeared. That was Mr Gillies. He was not understanding and was very keen to receive payment of rent at the due time. Ending of the claimant’s employment[19]The claimant worked for the respondent on 31 August 2018. Later that day, the respondent received a text from Mr Gillies. That text demanded payment of the rent from the respondent. It said that she required to pay up the rental or to get out of the premises.[20]The respondent had no means of making payment of rent at that point. She decided that the only course open to her was to vacate the shop premises. She also decided that she would not however inform the claimant of this until she saw the claimant at work on Monday, 3 September 2018.[21]The claimant and the respondents spoke on the telephone on Monday 3 September. There was an issue with the claimant attending work due to illhealth on the part of her nephew. The respondent said to the claimant that she did not want to have to tell her over the phone what she was about to tell her. She wanted to pass on the information in person. She said however that she might as well tell the claimant as she would be likely to hear from others. She informed the claimant that the shop was closing. The claimant asked what was going to happen now. The respondent said that the claimant did not need to go in to work, that it was up to her whether she did that or not. She said that she was going to clear the shop out as the landlord had given her a week to do that. The claimant was somewhat surprised by this turn of events.[22]Later in the same day or on the subsequent day the claimant and respondent spoke with one another again. Both were upset. Each was raising with the other what they might do next. The respondent said to the claimant that the claimant should go to the job centre to look for another job. It was mentioned between the claimant and respondent that that there might be possible job for either of them in Morrisons. Both the claimant and respondent were exchanging information as to where they each might possibly get another job. The respondent did not at this point plan to continue trading.[23]The claimant sent the respondent a text regarding collection of possessions which she had in the shop premises. She did this on 4 September saying that she was going to “pop into the shop and get my stuff.” She sent this text at 20:29.[24]On 5 September the claimant visited the job centre and signed on with a view to obtaining alternative employment. She was asked as to whether she had a P45. She raised this with the respondent by text.[25]On 5 September the respondent replied to the claimant’s text of the previous evening regarding collection of her “stuff” from the shop. The respondent replied “Not a problem babe soz I was in bed last night.” That text was sent at 08:35. By text timed at 12:23 the claimant replied stating “How did u get on at the accountant I don’t think I can sign on until I have p45”. The respondent replied by text timed at 13:06. She said “He’s gonna post it out to you.” The claimant subsequently received form P45.[26]A few days later the claimant was informed by others that there was a sign on the shop premises. It said that orders could still be taken via the website and by use of the shop telephone number. The respondent had put up the sign as she was conscious that those who had pre-ordered flowers, for weddings for example, might be upset and angry and might panic if they thought that the shop had closed and there was no means of obtaining their orders or obtaining information about them. She took the telephone from the shop premises to her home where, on plugging it in, she was surprised to find that calls to the shop number were able to be answered by her.[27]Having received information as to the sign giving the shop number and saying that orders could be obtained through it, the claimant phoned the shop telephone number. The respondent answered. A heated conversation between the claimant and respondent followed. The respondent said that the phone had not been disconnected. The claimant said that the situation was not right and that she would potentially take it further. The respondents said “okay, on you go”. The respondent said that she “did not need this”. The claimant said that she knew what the respondent meant. The claimant was seeking to imply that she did not need this situation either.[28]The claimant’s view was that the respondent had ceased trading. The claimant would have been happy to continue working for the respondent. She was keen to do that. She now believed, however, from the sign on the shop and from the conversation over the telephone that the respondent was in fact still trading. The respondent had not said and did not say to the claimant that her job remained open for her.[29]The respondent has continued in business only in order to fulfil any prepaid orders such as for weddings. She has used her home as the base of her business. She has not employed anyone in that business. The respondent is in a very difficult position financially at time of this hearing.[30]The claimant had a set of keys for the shop premises at 171 High Street Dumbarton. The respondent did not ask for those to be returned to her. The claimant has not returned the keys to the respondent or to any other party.[31]The claimant subsequently obtained employment a friend who was a former colleague of hers and who had worked with the respondent some years prior to 2018.[32]The claimant took advice. She wrote to the respondent seeking an insolvency reference number with a view to making a claim for sums which she regarded as being due to her. There was no reply to that letter. The claimant therefore took steps with a view to initiating an Employment Tribunal claim. She contacted ACAS under the Early Conciliation scheme on 30 September 2018. The claim was presented to the Employment Tribunal on 1 November 2018.The issues
[33]The issues for the Tribunal were:(i) whether the claimant had been dismissed by the respondent or not;(ii) if the claimant had been dismissed, was a payment by way of notice pay due to her?(iii) whether the dismissal was wholly or mainly by reason of redundancy(iv) whether the claimant had continuity of employment enabling her to bring a redundancy claim(v) What, if any, redundancy payment was due by the respondent to the claimant?Applicable law
[34]An employee seeking a redundancy payment firstly requires to establish that she has been dismissed. Under the Employment Rights Act 1996 (“ERA”) Section 136, an employee is dismissed if her contract of employment is terminated by the employer either with or without notice.[35]It is for the employee to prove, on the balance of probabilities, that there has been a dismissal. The Tribunal must therefore decide whether it was more likely than not that the contract was terminated by dismissal rather than by either resignation or mutual agreement.[36]Where there are no specific unambiguous words used dismissing an employee, the Tribunal properly considers all the surrounding circumstances and how words would have been understood by a reasonable employee. In considering whether resignation has occurred, it is only in exceptional circumstances that from an employee’s conduct resignation would be viewed as having occurred. It is not possible, for example, for the conduct of an employee to terminate the contract automatically. An employer would require to act to accept repudiatory breach of contract by an employee.[37]Where a dismissed employee claims a redundancy payment, there is a presumption that the employee who has been dismissed has been dismissed by way of redundancy. That is in terms of Section 163 of ERA. Redundancy is defined in Section 139 of ERA. That Section refers to the situation of the closure of the business, the closure of the workplace and whether there is a diminishing need for employees to do the available work.[38]In calculating a redundancy payment, there is a formula applicable which involves the length of service of the employee in question, their age at date of termination and their wage at date of termination.[39]For the application of the Transfer of Undertaking (Protection of Employment) Regulations 2006 (“TUPE”) to apply such that there is continuity of employment when a new employer appears, the must be a relevant transfer. A relevant transfer is defined in regulation 3 as “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”[40]In terms of section 86 of ERA notice requires to be given by an employer to terminate the contract of employment of an employee who has been employed for over a month. That notice is to be one week’s notice for each year of service. Submissions Submissions for the Claimant[41]Ms Harkins said that she had been dismissed. If she had been offered continuing work by Ms Duffy when the shop premises closed she would have taken that. She would not have walked away from her work. She sought what she said she was entitled to. Submissions for the Respondent[42]Ms Duffy said that she had no prior warning that the landlord would end her lease of the shop. Everything happened so quickly. If she had had money she would have given to Ms Harkins what she was due. She still however had no money. She maintained that she had not dismissed the claimant. Discussion and decision[43]This was a very unfortunate case in that the claimant and respondent had been friendly with one another and had worked closely together for some years. The relationship between them now was very fraught however. Both were emotional in giving evidence and in asking questions, one of the other. Each of them used the expression in talking of the other that they “felt betrayed”.[44]The first question which I have to determine and is whether the claimant was dismissed by the respondent.[45]The respondent’s position was that no dismissal had occurred. On the evidence, this was based on three facts regarded by Ms Duffy as being key. Those were firstly that there had been no express words said to the claimant dismissing her and secondly that the claimant had not been asked to return the keys. Finally, although Ms Duffy had issued a P45 to Ms Harkins, Ms Duffy was keen to emphasise that it was the claimant who had asked for her P45.[46]I considered these points as advanced by Ms Duffy. It was accepted by Ms Harkins that she had not been told in terms that she was dismissed. The evidence as to what had been said by Ms Duffy to Ms Harkins was not in dispute. Ms Duffy had said to Ms Harkins that the shop was shutting. Ms Harkins of then been told by Ms Duffy that she did not need to go in and that Ms Duffy was going into the shop to clear it out having been given a week to do that by the landlord. In a subsequent call, on the same day or the following day, Ms Duffy and Ms Harkins had then discussed what they were going to do next. Ms Duffy had advised Ms Harkins to go to the job centre. An alternative place of employment had been mentioned as a possibility. The discussion was on the basis of both Ms Duffy and Ms Harkins seeking alternative employment.[47]This conversation did not chime with resignation by Ms Harkins. It was consistent however with dismissal having taken place as a result of the business ceasing at that point. Ms Duffy was herself openly talking about obtaining alternative employment. She had intimated that the shop had shut. She had encouraged Ms Harkins to register with the job centre with a view to obtaining alternative employment.[48]Ms Harkins treated the conversation as intimation to her that her job had come to an end. She went to the job centre as suggested by Ms Duffy. In course of seeking to sign on there she was asked to produce her P45. She then sent a text to Ms Duffy seeking her P45. It was confirmed to her by Ms Duffy that this would be sent on. It was then sent on.[49]All of these actions and the words used were consistent with the claimant’s job coming to an end at the instigation of Ms Duffy, albeit for practical reasons rather than through the claimant being “fired”. They were not consistent with resignation. They were not consistent with mutual termination of the contract. It was Ms Duffy who had initiated the conversation, understandably, due to closure of the shop. Ms Duffy did not, again understandably given the abruptness of the message and notice from the landlord, say that her business was continuing from home. That was not part of any conversation at this point. It was not her decided course of action at this time. In fact, ultimately, the business continued to an extent in order that Ms Duffy did not let people who had pre-ordered flowers down. At the point however where that occurred, the employment relationship between Ms Duffy and Ms Harkins had been ended.[50]I am of the clear view that the words used by Ms Duffy, whilst not expressly stating that dismissal had occurred, amounted to dismissal, on the balance of probabilities, rather than supporting the view that resignation or termination by mutual consent had occurred. The claimant has discharged the onus to show, on the balance of probabilities, that dismissal occurred.[51]The context of the claimant asking for form P45 is again consistent with dismissal rather than the claimant suddenly without explanation or due to her resignation asking for her P45. It was a follow-up to the claimant’s visit to the job centre, something which was undertaken by the claimant at the suggestion of Ms Duffy and with a view to finding alternative employment. In my view it supports the outcome of the call from Ms Duffy to Ms Harkins as being that Ms Harkins’ job had ended. It had ended at instigation of Ms Duffy rather than through resignation by Ms Harkins or by mutual agreement. I regard the view taken by Ms Harkins of what was said to her by Ms Duffy, that view being that her employment had ended, as being a view which would be taken by a reasonable employee. It requires to be borne in mind that Ms Harkins was keen to continue in her job.[52]Equally, I do not see retention of the keys as indicating that employment continued. Ms Harkins used the keys to access the shop to remove her personal belongings. It is true that she was not asked at any point to return the keys by Ms Duffy. This was not a situation however where the shop continued to trade. Neither party raised the subject of the keys. Again that is perhaps not surprising in the circumstances where trading from the shop was coming to an end within a matter of days and where that had been a situation forced upon Ms Duffy at short notice.[53]I am left therefore with the fact that Ms Harkins still had a set of keys for the shop premises. That is not of itself in my view sufficient to outweigh the other factors, specifically the closure of the shop, the conversation between Ms Duffy and Ms Harkins and the signing on at the job centre by Ms Harkins at the suggestion of Ms Duffy with consequent supply by Ms Duffy of the P45 to Ms Harkins. All of these elements point firmly in my view to dismissal having taken place, on the balance of probabilities.[54]Dismissal established, there is a presumption in a claim for statutory redundancy payment that an employee has been dismissed for redundancy unless the contrary is proved.[55]The workplace had closed. At the point when employment came to an end, the business had ceased. When Ms Duffy decided that she would fulfil orders then in place, that was not said by her to Ms Harkins. It certainly was not Ms Duffy’s immediate thinking to follow that course given her discussions with the claimant on 3 and 4 September. She had talked at that point to the claimant on the basis that both of them were looking for alternative employment. She had not sought any assistance from Ms Harkins in completing orders. Circumstances therefore existed to confirm that dismissal was by reason of redundancy.[56]Ms Duffy’s position was that there was no dismissal. She did not maintain, for example, that dismissal had occurred but for a reason other than redundancy. She gave evidence at one point that circumstances existed where dismissal might have occurred. That evidence was disputed. I halted it as it commenced. This was on the basis that it did not seem to me relevant to the question of whether there was a was not a dismissal and whether or not that dismissal was by reason of redundancy. Circumstances may or may not have existed in which Ms Harkins might have dismissed. It appeared Ms Duffy wished to lead that evidence to establish that she was, in general terms, a good employer. She also wished to lead evidence about other situations where employees had left and had, she said, been treated appropriately by her. Again that evidence did not seem to me to be relevant to the points which I required to determine in this case.[57]In my view dismissal was by reason of redundancy. The issue which then arises is that of an award in respect of redundancy.[58]Ms Harkins had been employed for less than 2 years by Ms Duffy herself. She had however been employed for 7 years if she had been transferred to the respondent from Glasgow Flowers Limited in terms of TUPE. It was in respect of that seven-year period that she sought a redundancy payment.[59]I was satisfied on the evidence that there had been a relevant transfer in terms of TUPE between Glasgow Flowers Limited and the respondent. There had been a reduction in the hours which Ms Harkins worked at time of Ms Duffy assuming responsibility for the business as a sole trader. Ms Duffy was however clear in her evidence that she had “taken on” the business in the circumstances of the breakup between her husband and herself. Both Ms Duffy and Ms Harkins confirmed that the business traded in the same manner and fashion before and after Ms Duffy took it on. The premises were the same. The trading name was the same, Glasgow Flowers. The staff were the same (albeit with a reduction in hours on the part of Ms Harkins). The nature of the business was the same. The materials used were the same, naturally with fresh flowers being used on a daily basis. Both parties accepted that a customer coming into the shop would not have known the difference between the position when Glasgow Flowers Ltd operated the business and that when Ms Duffy operated the business as a sole trader.[60]Continuity of employment therefore was established by reason of the relevant transfer in terms of Regulation 4 of TUPE. 7 years service existed. Given Ms Harkins’ age at date of termination of her employment and her wage, the award is of 7 weeks pay, a total of £770. Notice pay[61]The last payment to Ms Harkins was in respect of work for the period to 31 August 2018. She did not receive notice of termination of her employment. She did not receive pay in lieu of notice. Having regard to her service of 7 years as claimed, she is entitled to 7 weeks pay by way of compensation for the breach of contract in not giving her notice or making payment in lieu of notice. The sum awarded is £770.Conclusion
[62]I realise, from what Ms Duffy said in evidence, that her financial position is extremely difficult. She referred to various liabilities and to advice which she is receiving from a debt counsellor. As I sought to explain to Ms Duffy, I required to consider the facts and the law and to make an award if that was regarded by me as being appropriate. As I said, I could not, for example, decide that an award was appropriate however not make such an award due to difficult financial circumstances on the part of the party potentially being found liable to pay that award.[63]I also explained to Ms Harkins that it was not within my power to ensure that payment of any award was actually made. I would make my decision having heard the evidence. If an award was made, it would then be for Ms Harkins to consider possible recovery, whether directly from Ms Duffy or through the Insolvency Service.