Case No 8000032/2023Venue GlasgowHearing 6 February 2023
Between
Mr A FlemingClaimantAbbey Metal LtdRespondent
Before
Employment Judge C McManusMs M Jenkins (instructed by Solicitor) for respondentDate 18 July 2023
REASONS
[1]The claimant claims unfair dismissal, alleging that the reason for his dismissal was because he made protected disclosures in respect of alleged health and safety issues (whistleblowing). The claimant does not have the necessary qualifying length of service to bring an ordinary claim of unfair dismissal. The ET1 claim form was submitted on 22 January 2023, giving dates of employment from 6 April 2022 to 16 January 2023. The claimant seeks Interim Relief.[2]The claimant’s position is that he was dismissed as a result of having made the alleged protected disclosures set out in a Note given to the respondent on 12 January 2023. This Note was in the respondent’s Bundle at page 25 – 26 (R25 – R26) and in the claimant’s Bundle at page 3 – 4 (C3 – C4). The version in the respondent’s Bundle has some handwritten annotations on it. It was not disputed that this Note was received by the respondent. The respondent’s position is that the claimant was dismissed for his conduct. The dismissal letter refers to the claimant’s alleged conduct on 13 January 2023.[3]An application for Interim Relief may be made where a claim is made under section 103A of the Employment Rights Act 1996 (‘the ERA’) and the claim is submitted to the Employment Tribunal within 7 days of the termination of employment. The claim form was therefore presented within the prescribed time for pursuing an application under Section 128(1)(a)(i) of the Employment Rights Act 1996 (the ERA). In these circumstances, a Hearing was arranged for 6 February 2023 to determine the Interim Relief application.[4]On 2 February 2023, the respondent’s representative wrote to the Tribunal, copied to the claimant, referring to the Notice of Hearing and seeking confirmation on whether evidence would be heard at the Interim Relief Hearing. On 3 February a reply was sent to the respondent’s representative (copied to the claimant) including the following terms: “Your correspondence of 2 February has been referred to Employment Judge McManus who has reviewed the file and has asked me to confirm that no direction has been made by the Tribunal for witness evidence to be heard at the Interim Relief Hearing in this case, which is scheduled to take place on Monday 6 February 2023. The Notice of Hearing is in general terms, with reference to witnesses being applicable to cases where such a direction has been made under Rule 95 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.”[5]Also on 3 February, email correspondence was sent to the parties in the following terms: “Further to email correspondence sent to parties from the Tribunal on 1 February, EJ McManus has asked me to write to parties to clarify that at the Interim Relief Hearing, under Rule 95 of the Employment Tribunal Rules of Procedure 2013), the Employment Judge taking the Hearing will not hear oral evidence, but will seek to be addressed by both the claimant and the respondent, or their representative, on the interim relief issues, in terms of Section 128 of the Employment Rights Act 1996, and not the merits of the full claim. This will proceed by each party or their representative giving their submission, i.e. setting out their legal argument in respect of the interim relief application. Although no evidence will be heard at the Interim Relief Hearing, each party or their representative in their submissions at the hearing may rely on documentary evidence to support their position at the Interim Relief Hearing. If a party intends to rely on documentary evidence at the Interim Relief Hearing, they should prepare a Bundle of documents, in chronological order and with numbered pages, incorporating all documentary productions intended to be referred to at the Interim Relief Hearing, and bring to the Hearing one set for the Judge, one set for their own use, and one set for the other party’s use. Parties are encouraged to co-operate to prepare a joint set of documents containing both parties’ documents with a single index. Parties are also encouraged to liaise and prepare, for the Tribunal’s use, an agreed statement of facts, and chronology of key events / documents to be relied upon or referred to by either party at the Interim Relief Hearing. If either party intends to rely on any authorities i.e. previous decisions which are relevant to the issue, then notification should be given to the other party or their representative of the case law intended to be relied upon. It would be helpful if parties or their representatives could provide outline written submissions at the Hearing, to be provided to the Tribunal and exchanged with the other party / representative.”[6]The hearing took place in person at the Glasgow Tribunal Centre. The claimant represented himself. The respondent was professionally represented by Ms Jenkins (solicitor).[7]The respondent had not submitted an ET3 by the date of this Interim Relief Hearing but sought to rely on the terms of the ET3 skeleton paper apart in the respondent’s Bundle (R18 – R22).[8]Both parties produced a Bundle of Documents. Neither Bundle was extensive. The claimant’s Bundle ran to 11 pages. The respondent’s Bundle ran to 30 pages, including the ET1, ET3 Skeleton Paper Apart and the Respondent’s Chronology. There was some duplication of documents between the Claimant’s and the Respondent’s Bundles. Both Bundles contained a copy of a handwritten note written by the claimant and signed by a several other employees of the respondent (‘the Note’). It was this Note that the claimant relied upon as setting out protected disclosures to the respondent. This Note was in the respondent’s Bundle at page 25 – 26 (R25 – R26) and in the claimant’s Bundle at page 3 – 4 (C3 – C4). The version in the respondent’s Bundle has some handwritten annotations on it.[9]The claimant also sought to rely on 5 separate videos, which he said showed some of the alleged health and safety breaches set out in the Note. The claimant did not rely on these videos having been disclosed to the respondent.[10]I noted that the claimant was not legally represented, while the respondent was. I said that in terms of the overriding objective in Rule 2 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (‘The Tribunal Rules’), I have a duty to deal with cases fairly and justly, and where one party is legally represented and the other is not, that includes a duty to ensure parties are on an equal footing, as far as practicable.[11]The respondent’s representative provided her written submissions on the Interim Relief application to the claimant and to me, together with a copy of the case law authorities relied upon by the respondent for this Hearing. Time was given for these to be read.[12]There was discussion whether the videos that the claimant sought to rely on should be shown at this Hearing. These were sent to the respondent’s representative and viewed by them. The videos were each around a minute long. It was the claimant’s position that the videos showed some of the alleged health and safety breaches he set out in the Note relied on as being a protected disclosure. I considered that the videos may be relevant to the likelihood of the claimant establishing at the Final Hearing that he had believed what was set out in the Note in respect of health and safety concerns, and that that belief was reasonable. That was significant with regard to the likelihood of the claimant proving at the Final Hearing that he had made a protected disclosure, in terms of section 103A and section 43B of the ERA. I allowed the videos to be shown, on the basis that no findings in fact would be made at this Hearing and therefore I would not be making any findings of any health and safety breach by the respondent. On that basis, Ms Jenkins had no objection to the videos being viewed in the Hearing. A Tribunal clerk arranged for these to be viewed on screen in the Tribunal room. There was no oral evidence at this Hearing, so no person spoke to the content of the videos, although the videos included some descriptive narration by the claimant. Issue to be determined[13]I required to determine whether interim relief should be granted to the claimant pending a final determination of the claimant’s claims against the respondent that he was automatically unfairly dismissed in terms of section 103A ERA.[14]It was the respondent’s position that in the event of the claimant’s application for interim relief being successful, reinstatement would be refused. The claimant did not wish reinstatement. In these circumstances, if interim relief was granted, I required to make an Order for Continuation of Contract under section 130 of the ERA, in appropriate terms.
Relevant law
[15]The circumstances in which an application for interim relief can be made is set out in section 128 ERA. (1) An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and - a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in - (i) section … 103A, … may apply to the tribunal for interim relief.[16]Such an application must be brought within 7 days of the date of dismissal. There was no dispute that the claimant’s application for interim relief was properly brought within the terms of section 128 ERA.[17]In order to succeed in his application for interim relief, the claimant must demonstrate that it is likely that in determining his claim, a Tribunal will find that the reason or principal reason for the claimant’s dismissal was that the claimant had made protected disclosures.[18]The leading authority is Taplin v C Shippam Ltd [1978] IRLR 450, EAT, where the Employment Appeal Tribunal (‘EAT’) further defined “likely” as “pretty good chance of success”. The test is that the claimant has a “pretty good chance of success” in establishing that the reason that he was dismissed was that he had made a protected disclosure. In Taplin the EAT expressly ruled out alternative tests. According to the EAT, the burden of proof in an interim relief application was intended to be greater than at a full hearing, where the Tribunal need only be satisfied on the “balance of probabilities” that the claimant had made out his case.[19]In Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, Mr Justice Underhill, then President of the EAT, commented that the test of a “pretty good chance of success” does not mean simply “more likely than not” but connotes a significantly higher degree of likelihood, i.e. “something nearer to certainty than mere probability”.[20]Where, as here, interim relief is sought in a whistleblowing case under section 103A ERA, the claimant must show that it is likely that the Tribunal will find(1) that he made the disclosure or disclosures to the employer,(2) that he believed that disclosure tended to show one or more of the things itemised in section 43B(1)(a)-(f),(3) that his belief was reasonable,(4) that the disclosure was made in good faith, and(5) that the disclosure was the principal cause of the dismissal. It is a requirement that the disclosure is of information and not simply the making of an allegation or statement of opinion, albeit that the distinction is not always an easy one to draw and a disclosure of information may be made alongside the making of an allegation.[21]It is also required that the claimant reasonably believes the disclosure to be made in the public interest albeit that this does not have to be his or her predominant motive in making it.[22]In Al Qasimi v Robinson EAT 0283/17, the EAT had to consider whether an Employment Judge had applied the test correctly to a “whistleblowing” claim under S.103A, in which the central question was whether the claimant was likely to succeed in showing that she had made “protected disclosures” as defined in sections 43A-43H ERA. The correct approach was summarised by Her Honour Judge Eady QC, now President of the EAT, in these terms: “By its nature, the application had to be determined expeditiously and on a summary basis. The [Tribunal] had to do the best it could with such material as the parties had been able to deploy at short notice and to make as good an assessment as it felt able. The Employment Judge also had to be careful to avoid making findings that might tie the hands of the [Tribunal] ultimately charged with the final determination of the merits of the points raised. His task was thus very much an impressionistic one: to form a view as to how the matter looked, as to whether the claimant had a pretty good chance and was likely to make out her case, and to explain the conclusion reached on that basis; not in an over-formulistic way but giving the essential gist of his reasoning, sufficient to let the parties know why the application had succeeded or failed given the issues raised and the test that had to be applied.” Submissions[23]The respondent’s representative spoke to her written submissions. She relied on the following authorities: Taplin v C Shippam Ltd [1978] IRLR 450, EAT Raja v Secretary of State for Justice UKEAT/0364/09/CEA Dandpat v The University of Bath UKEAT/0408/09/LA Ministry of Justice v Sarfraz [2011] IRLR 562, EAT Robinson v Sheikh Khalid Bin Saqr Al Qasimi EAT 0283/17[24]The claimant gave oral submissions. Both answered questions from me. Parties’ positions in submissions are referenced in the ‘Discussion and Decision’ section below. Discussion and decision[25]In the present case, I have had regard to the claim form and response. I have also considered the documents I have been referred to by the parties. Finally, I have taken into account the submissions of the parties. I have had to take a broad-brush approach to consideration of the matter given the nature of the issue to be determined. I am also mindful that I do not want to say anything which might be said to place any limits on any findings which might be made by the Tribunal, after hearing all the relevant evidence and submissions. I noted that at an interim relief hearing I require to make a summary assessment based on the material before me of whether the claimant had a pretty good chance of succeeding on the relevant claim. In my summary assessment, I am not making any findings of fact but setting out my observations based on the material before me, of the likelihood of the claimant succeeding at a full hearing in his complaint under section 103A of the ERA. I make my decision following the guidance from the EAT in Al Qasimi. I had regard to the documents before me in the Bundles produced by the claimant and the respondent. I noted the claimant’s position that CCTV of the alleged altercation on 13 January 2023 was available, in the respondent’s possession. Although the respondent did not dispute that that was available, and they did not seek to rely on CCTV evidence at this Hearing, I took into account the direction that no evidence was to be heard at this Hearing and so placed little weight on that position. I formed an impression of how the matter looked on the basis of what was before me. I considered it to be significant that there was no dispute in respect of a number of matters.[26]I took into account the terms of the dismissal letter (at R27). I took into account that in that letter there is no reference to alleged misconduct by the claimant specifically on 11 or 16 January 2023, relied on by the respondent in their skeleton paper apart (R18 – 22, at paragraphs 6 and 16). It was not in dispute that no formal disciplinary action had been initiated against the claimant prior to his dismissal. It was not in dispute that there was no disciplinary hearing or appeal hearing for the claimant. I took into account the terms of the claimant’s appeal letter (R28 – 29 and C7 – 8). In that appeal letter the claimant sets out in clear terms that he believes that he was dismissed “as a result of making a protected disclosure (whistleblowing)”, referencing the Note which was given to the respondent’s Director (John McLean) on 12 January 2023. I took into account the terms of the response to that appeal (R30 and C9). In that response the claimant was “advised that after discussion we advise you that your written appeal against the termination of your employment has been unsuccessful”. It was not in dispute that there was no appeal hearing. There was no indication from the papers before me of any steps being taken by the respondent to address what was set out in the Note, or in the claimant’s appeal letter. There was no indication in the papers before me of any response from the respondent to the other employees who had signed the Note. There was no indication from the papers before me of Health and Safety Policies in place covering the matters set out in the Note. Included in the respondent’s Bundle (at R24) is a notice in respect of the requirement for employees on site to wear “proper protective clothing and footwear”. The claimant in his ET1 alleges that he was involved at an accident at work on 30/12/22, which was not reported in the accident book. There was no indication from the papers before me of any accident book records being kept by the respondent.[27]I did not accept the respondent’s representative’s position in her submissions (at paragraph 27 (d)) that “This was not a case where there is what may be considered an obvious or even tenable direct connection between any alleged protected disclosure and / or the decision to dismiss.” In discussion on her submissions, the respondent’s representative conceded that at least the timing of the dismissal had a direct connection to what is relied upon as being the protected disclosure. I considered the timing and factual circumstances of the altercation to appear to be closely linked to the alleged protected disclosure. Even on the respondent’s case at paragraphs 10 and 11 of their skeleton paper apart to the ET3, the conduct relied upon as the reason for dismissal was linked to the claimant raising health and safety concerns.[28]I considered it to be particularly significant that it was not in dispute that the altercation relied upon in respect of the reason for dismissal being the claimant’s conduct was about the Note. I considered that to be significant with regard to the likelihood of the claimant establishing that the reason or principal reason for his dismissal was that he had made protected disclosures in that Note. The dispute between the parties to be resolved at the Final Hearing is about who engaged, or first engaged in aggressive behaviour about that Note.[29]The respondent’s representative relied on the circumstances in the leading authority of Taplin as being similar to this case, and that in Taplin no interim relief had been granted. In Taplin the claimant was dismissed for conduct reasons related to the way in which he carried out his trade union activities, as set out by the EAT at paragraph 12 of their decision. The application for interim relief in that case was made in the context of the claimant being a trade union representative. The position of parties before the EAT in Taplin with regard to the likelihood of that claimant’s claim being successful are set out at paragraph 26 of their decision. That includes: “Unfortunately, although we agree about everything so far in this decision, we are divided in our view as to the final outcome of the case. Two members of the Tribunal consider that although had the matter been before them afresh they might have come to a different conclusion than the Chairman, there was material before him upon which he should make an order. They consider that he was entitled, having seen witnesses, to come to the view that in all the circumstances the right course was that the matter should now proceed to a hearing. The third member of the Tribunal takes the opposite view and he is of the opinion that no reasonable Tribunal would have reached the conclusion which the Chairman reached on the evidence before him when properly directing himself. He would accordingly make an interim order under s 78.”[30]In paragraph 27 of their decision in Taplin, the EAT specifically states that they have “deliberately refrained from expressing any views upon the merits of the case or from analysing in detail the reasons why we have severally reached our views as to what the ultimate outcome of the case ought to be in view of the fact that the matter will have to go to a final hearing in any event.”[31]Given what is set out by the EAT in those paragraphs 26 and 27 of their decision, I did not take that decision as authority in respect of the merits of the interim relief application before the Tribunal in Taplin. Ms Jenkins sought to rely on Taplin with regard to the merits of this interim relief application. I did not accept her reliance on Taplin in that regard. I have determined the claimant’s claim on the basis of the position before me, with regard to the meaning of ‘likely’ given by the EAT in Taplin.[32]Taking into account the relevant law and the information before me, in particular the undisputed matters as set out above, I formed the impression that the claimant does have a pretty good chance of succeeding in his claim under section 103A ERA. I found the following factors particularly relevant in reaching this decision:a. That what is relied upon as being the protected disclosure is set out in writing in the Note.b. The undisputed content of the Note.c. The annotated comments in the version of the Note at R25 – R26.d. The reference to alleged health and safety issues in the Notee. That the Note was signed by other employees of the respondent, as well as the claimant.f. That it is undisputed that the Note was received by the respondent’s Director on 13 January 2023.g. That it is undisputed that the alleged altercation relied upon by the respondent as being the conduct for which the claimant was dismissed, arose from a discussion on the Noteh. That it is undisputed that there was no disciplinary action initiated against the claimant in respect of his alleged conduct on 11 January 2023 (before making the alleged protected disclosure), as referred to at paragraph 6 of the skeleton paper apart to the ET3.i. That it is undisputed that there was no disciplinary procedure initiated in respect of the claimant, either in respect of his alleged conduct on 13 January or any other date.j. The timing of the claimant’s dismissal relative to the alleged protective disclosure.k. The claimant’s length of service.l. The content of the letter dismissing the claimant.m. There having been no disciplinary hearing.n. The content of the claimant’s letter appealing the dismissal, in particular there being reference to the claimant’s position that he was dismissed because he made a protected disclosure.o. There having been no appeal hearingp. The content of the letter informing the claimant that his appeal had not been successful, in particular there being no response to the claimant’s position in his appeal letter that he was dismissed for making a protected disclosure.q. That there was no reliance before me of any policies or procedures in respect of Health and Safety being in place, other than what is relied on at R24.r. That the Health and Safety Notice included in the respondent’s Bundle (R24) referred to possible invalidation of insurance and “repeated (obviously failed) attempts to alert staff as to the requirement” to wear proper protective clothing and footwear.s. That there was no reliance before me on any steps taken by the respondent to address with other employees the matters set out in the Note.[33]I took into account that the claimant will require to prove at the Final Hearing that the reason or principal reason for his dismissal was that he made a protected disclosure (in the Note). On what was before me, without making any final determination, I formed the impression it is likely that a Tribunal will determine that what is set out in the Note as alleged protected disclosures will satisfy the test in section 43B of ERA.[34]I take into account the respondent’s representative’s reliance on the person dismissing the claimant not being involved in the altercation. I consider it to be significant that the alleged altercation was with the respondent’s Director and the impression that the respondent is a small company.[35]I take into account the respondent’s representative’s position that there was no evidence to suggest that the dismissing officer was aware of the claimant having made the statement he relies on as amounting to protected disclosures. It is not disputed that the conduct relied upon arose in relation to the Note. I consider that to be significant to the likelihood of a determination that the reason or principal reason for the claimant’s dismissal was that he made protected disclosures in the Note.[36]I take into account that the Note makes no specific reference to section 103A or the making of protected disclosures. I am satisfied on the undisputed content of the Note that there is a pretty good chance that it will be determined at Final Hearing that that Note contained protected disclosures (with reference to the definition of a qualifying disclosure set out in section 43B ERA and to section 43C ERA). My impression from what was before me was that it is likely that at the Final Hearing the Tribunal will find(1) that in the Note the claimant made disclosures to the respondent,(2) that the believed that disclosure tended to show that the health and safety of individuals was being, and / or was likely to be endangered (with reference to ERA s43B (1)(d) ),(3) that the claimant’s belief was reasonable,(4) that the disclosure was made in good faith, and(5) that the disclosure was the principal cause of the dismissal. In forming my impression that it is likely that the claimant’s belief will be found to be reasonable, I took into account the content of the videos relied on by the claimant.[37]I took into account that the requirement is a requirement that the disclosure is of information and not simply the making of an allegation or statement of opinion, albeit that the distinction is not always an easy one to draw and a disclosure of information may be made alongside the making of an allegation. I took into account both the content of the Note and the handwritten annotations in the version in the respondent’s Bundle (R25 – R26). I make no findings on whether what is set out in the Note is accurate.[38]I take into account that the consequences of this Order in respect of placing obligations on the respondent to make payments to the claimant, before a Final Hearing, when all relevant evidence may be heard. Taking into account the position of the EAT in Dandpat (at paragraph 20) of their decision. I do not make this Order lightly. I take into account the EAT’s position in Dandpat in respect of there being no obligation on a tribunal to hear oral evidence in an interim relief application (paragraph 12 of the EAT’s decision).[39]For the above reasons, I decided on what was before me that it is likely that a Tribunal hearing all the relevant evidence is likely to find that the claimant’s dismissal is automatically unfair in terms of section 103A ERA. I consider that the claimant has a pretty good chance of proving that the principal reason for the dismissal was the making of the alleged protected disclosure.[40]The claim for interim relief is therefore successful.[41]However, the claimant should note that this decision does not mean that a Tribunal hearing all the evidence will find in his favour. Nothing in this decision affects the determination of the Tribunal on the issues before it at the Final Hearing.[42]In circumstances where reinstatement or reengagement is refused, an Order for Continuation of Contract is made under section 130 ERA. The respondent’s representative produced copy wage slips (R 31). The claimant denied receipt of these wage slips but agreed that his net weekly pay from the respondent was £337.98. It was agreed that in the event of the interim relief application being successful, an Order for Continuation of Contract should be made under section 130 ERA. It was agreed that this should reflect payment from 17 January 2023, at a weekly net rate of £337.98, being a daily net rate of (£337.98 / 5) £66.60.[43]An Order for Continuation of Contract is made as set out above.[44]Nothing in this decision affects the claimant’s duty to mitigate his losses arising from termination of the employment with the respondent.[45]During these proceedings the claimant made references to possible applications to amend his claim (to correct a typo) and to having received an ACAS Certificate. I explained that at this Hearing I was only dealing with the interim relief application and that the claimant should write to the Tribunal office (copied to the respondent’s representative) with any proposed amendment to the ET1 claim form.[46]Their submission was that the Tribunal has jurisdiction to hear the claim for failure to provide a written statement of employment particulars because Schedule 5 of the Employment Act 2002 includes claims under section 48 of the ERA, relating to claims under section 47B. Their submission was that the claimant did not receive the contract included in the Bundle. They sought an award of £674 in respect of this failure, being 2 weeks pay under section 38 of the Employment Act 2002.[47]The claimant’s representatives submitted that the claimant did not receive the wage slips in the Bundle. They accepted that the pay slips accurately reflect the amounts paid by the respondent to the claimant. No compensation was sought in respect of the alleged failure under section 8 ERA.[48]In their updated Schedule of Loss, the claimant’s representatives sought a total award of £15,367 (including £11,000 in respect of Injury to feelings, which fell as the amendment as proposed was not allowed). Respondent’s Representative’s Submissions[49]In respect of the complaint re failure to provide a written statement of employment particulars, the respondent’s position was that the Tribunal has no jurisdiction to award any compensation under section 1 of the ERA. Their submission was that compensation for failure to provide a section 1 statement of particulars is under section 38 of the Employment Act 2002, and can only be awarded following success in any of the claims listed within Schedule 5 of the Employment Act 2002. They relied on section 103A of the ERA not being listed within that section 5. Their position was that the Tribunal does then not have jurisdiction to hear that claim.[50]Their alternative position was that if we considered that we do have jurisdiction to hear this head of claim, the evidence of Mr McLean should be accepted, and it should be accepted that the claimant was provided with a contract of employment at the start of his employment, being that at B71 – B73. Their submission was that this was signed by Mr McLean on 5 April 2023, in advance of the Claimant’s employment beginning and there was no failure to provide a written statement of particulars, so no uplift to the compensatory award should be made.[51]Their submission was that if the Tribunal does not accept the respondent’s evidence on this point, the claimant should be paid no more than 2 weeks’ pay under section 38 of the Employment Act 2002. Their submission was that section 38 provides that in such circumstances the tribunal must make an award of the minimum amount (two weeks' pay) unless there are "exceptional circumstances" which would make such an award "unjust or inequitable" (section 38(5), EA 2002), and that the Tribunal may award the higher amount (four weeks' pay) if it considers it just and equitable in all the circumstances. They relied on the claimant seeking an award of 2 weeks’ pay. Their submission was that there are no circumstances in which 4 weeks’ pay would be just and equitable and there are no “exceptional circumstances” which apply. They relied on Costco Wholesale UK v Miss Z Newfield, [2013] UKEAT/0617/12.[52]In respect of the claim for alleged failure to provide an itemised payslip in accordance with section 8 (1) of the ERA, the respondent denied that the claimant was not provided with payslips. Notwithstanding that position, they relied on there being no allegations of any unrecorded deductions from his pay. It was submitted that on application of section 8 ERA, there would be no monetary award available to the claimant if he were to succeed in this head of claim. They relied on the award in the event of a successful claim being calculated with regard to the amount of unlawful deductions made from the pay of the worker during the period of 13 weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the Tribunal may order the employer to pay the worker a sum not exceeding the aggregate of the unnotified deductions so made (s12(4) ERA 1996). They relied on the claimant not having raised the issue during his employment with the respondent. Their submission was that if the Tribunal does not accept the respondent’s position that itemised pay slips were issued to the claimant, in any event the Claimant has not alleged that there were any unnotified deductions from his pay and so there would be no monetary award available to him. They relied on the claimant’s position in the updated schedule of loss at B6.[53]In respect of remedy, the respondent’s representative’s submission was that as the respondent has conceded the S103A automatic unfair dismissal complaint, the claimant is entitled to a basic award, as per the claimant’s schedule of loss, of £399.20, being 1 weeks’ pay for his 1 year of service as per the calculation method in section 119 ERA. They relied on the just and equitable provisions in section 123 of the ERA 1996. They relied on the position in respect of mitigation in the claimant’s updated schedule of loss at (B61), that the Claimant’s financial loss is not in dispute, and it is agreed that he has no financial loss, past or future.[54]They relied on the Employment Tribunal’s Remedies Handbook 2022 – 2023. Their submission was that there should be no award for loss of statutory rights as the claimant did not have 2 years’ service with the respondent prior to his dismissal. Their submission was that he had not accrued the rights to lose. They further submitted that any award for loss of statutory rights falls under the compensatory award (relying on Hope v Jordan Engineering Ltd [2008] UKEAT/0545/07). They submitted that any award made as a compensatory award should be adjusted, taking into account payments made to the claimant as a result of the successful Interim Award.[55]The respondent’s representative relied on the position in their counter schedule of loss (B65-67). It was their position that the Respondent had made an overpayment of £2,195.58, in terms of payments from 20th March 2023 until the date of revocation of the Order for Continuation of Contract on 3 May 2023. They relied on the amount of those payments not being in dispute. Their submission was that these overpayments followed the claimant’s dismissal and may be viewed as compensation for the losses suffered, advance payment of any liability caused by the dismissal, or as a payment unrelated to the dismissal. Their submission was that the Claimant will normally be required to give credit for payments made by the employer in satisfaction of loss (Digital Equipment Co Ltd v Clements [1997] ICR 237) and that credit should be given to these payment made to reduce the loss suffered by the Claimant flowing from the dismissal.[56]It was the respondent’s representative’s submission that these payments should be taken into account before the application of any adjustments such as a failure to comply with the ACAS code or a failure to provide a statement of employment particulars. Reliance was placed on the Employment Tribunal’s Remedies Handbook 2022 – 2023, in particular at pages 64 – 65.[57]The respondent’s representative relied on the terms of the Interim Relief Order (the Order for Continuation of Contract) being that the claimant’s contract was ordered to continue so that he is not put to any financial loss as a result of any alleged automatic unfair dismissal under section 103A of the ERA, until his complaint has been determined. They relied on the claimant being paid his wages pursuant to this Order, until the Order was revoked on 5 May 2023.[58]The respondent’s representative relied on the payments under the Order for Continuation of Contract being “wages” as defined in Section 27 of ERA as including “any sums payable to the worker in connection with their employment”. Their submission was that an overpayment to the Claimant in satisfaction of the losses stemming from the dismissal was made, and credit should be given to this.[59]In respect of any increase to the award on application of section 207A of TULRCA, the respondent accepted that there was a failure to comply with the ACAS Code of Practice, but not that this failure was unreasonable. Their submission was that the failure by the Respondent to follow the ACAS Code of Practice was on the basis of there being reasonable grounds for that failure and no increase in compensation should apply.[60]The respondent’s representative’s submission was that the unfair dismissal basic award cannot be increased or decreased for the failure by the employer/employee to comply with the ACAS Code of Practice (s124A and s118(1)(b) ERA 1996), or increased following a failure to provide the employee with a written statement of terms and conditions of employment, as that increase is applied within the compensatory award (s38 EA 2002 and s124A and s118(1)(b) ERA 1996). Their submission was that the only loss set out within the compensatory award is the £350 set out in the Claimant’s schedule of loss. Their submission was that this should be reduced to zero in light of the sums received from the Respondent, and that then an uplift of 25% would be irrelevant to a nil award. Their submission was that no uplift applies in respect of a failure to provide a statement of employment particulars as this is added after any ACAS uplift. Their submission was that the only award to the claimant should be in respect of the unadjusted unfair dismissal basic award. Comments on evidence[61]We heard evidence from the claimant and John McLean (Director / owner of the respondent company). Each gave a contradictory version of events. Much of this case comes down to issues of credibility and reliability. We required to make findings in fact, making a determination on what occurred. We did so, taking into account the evidence before us, being the documentary evidence in Bundles and the oral evidence of Mr Fleming and Mr McLean.[62]We did not find Mr McLean to be a credible witness. His evidence was inconsistent with the documentary evidence.[63]John Mclean’s evidence was that the respondent did have a Disciplinary Procedure and Grievance Procedure. There was no explanation why copies of those policies or procedures were not included in the Bundle, nor was there any explanation why they were not followed in respect of the claimant’s dismissal. Mr McLean’s position in evidence was that Fergus Wallace deals with the policies and procedures. The purported contract at B73 references a Dismissal / Disciplinary Procedure and states ‘Please contact John McLean for further information, or to request to review a copy. If you are dissatisfied with any disciplinary or dismissal decision relating to you then you should, in the first instance, apply in writing to John McLean, stating the grounds of your appeal.”[64]The purported contract of employment at B71 – B73 is not signed by the claimant and does not have a place set out for the claimant’s details, signature and date. It does not appear that the claimant’s start date details have been completed: at B71 it states “The date of commencement of your employment is [st] [5] [2020]”. The date of John McLean’s signature is 5 April 2023, before the claimant’s start date, which was on 4 June 2022. John McLean’s evidence was that he would have signed that before he went on holiday as he always goes on holiday at Easter, for the first two weeks in April. John McLean’s position in evidence in chief was that Fergus Wallace dealt with the preparation of the contract, and that the claimant’s contract was at B71 -B73. That was inconsistent with the footer of the document, which showed the creator as Irene McLean. Mr McLean was asked by the Tribunal why the name ‘Irene McLean’ is set out under ‘Form Prepared By’ at B73. John McLean then changed his evidence in respect of who would have prepared the contract.[65]Mr McLean’s evidence that the claimant was given the opportunity to state his position on what had occurred was inconsistent with the terms of the letter of dismissal (B88). It was not disputed that that letter had been given to the claimant at the meeting when he was told that he was dismissed. That letter must then have been prepared before that meeting. That letter clearly sets out that the decision that the claimant is dismissed. It follows that the claimant could not then have been given the opportunity to state his position on what had occurred before the decision to dismiss him was made. It was only after questions from the Tribunal that it became Mr McLean’s position that the claimant had had the opportunity to state his version of what had occurred. That was not part of Mr McLean’s evidence in chief. Mr McLean’s position in evidence in chief was that he reported the incident to Mr Wallace, that there had been discussion between him and Mr Wallace and that they came to the decision that the claimant should be summarily dismissed. Mr McLean then sought to retract from that position in his answers to questions from the Tribunal, when his position was that he had not been involved in the decision to dismiss the claimant. For these reasons, we did not find Mr McLean to be entirely credible.[66]The claimant’s evidence was consistent with the documentary evidence before us. He did not seek to avoid questions and was consistent in his position. For these reasons, where there was a dispute in the position of the claimant and Mr McLean, we made findings of fact based on the claimant’s position in evidence.[67]We noted the reference in the letter of dismissal to the claimant’s behaviour. No evidence was heard on any contribution by the claimant to his dismissal, either on 13 January 2023 or previously, and no deduction was sought for any alleged contribution. Discussion and Decision Failure to Provide Written Statement of Employment Particulars[68]We did not accept that what is purported by the respondent to be the contact of employment was issued to the claimant. We considered it to be significant that that document was not signed by the claimant (nor does it have details where it should be signed by the employee). The start date in the document is incomplete and is not consistent with the claimant’s start date with the respondent. We accepted the claimant’s evidence that no contract of employment was issued to him by the respondent. The claimant’s evidence was consistent and more credible than Mr McLean’s evidence.[69]For these reasons, the claimant’s claim under section 1 ERA is successful. We did not accept the respondent’s representative’s position that no award can be made in respect of the claim under s1 ERA because a claim under s103A is not listed in Schedule 5 of the ERA. Included in the list in that Schedule 5 is section 111 ERA (unfair dismissal). The claimant’s dismissal under section 103A ERA is an unfair dismissal.[70]An award is made to the claimant in respect of the failure to issue particulars of employment. In considering the award to be made in respect of that successful claim, we applied section 38 of the Employment Act 2002. We interpreted section 38(5) as meaning that the successful claimant receives the higher award of 4 weeks’ pay, unless there are exceptional circumstances not to give that award. We understood that to be applicable where the written statement of employment particulars was not issued because of exceptional circumstances, in which case the lower award of 2 weeks’ pay should be made. There was no evidence before us of any exceptional circumstances preventing the respondent’s issue of the written statement of employment particulars. It was the respondent’s position that the contract was issued but we did not find the evidence (documentary or oral) to be reliable in support of that position.[71]The respondent’s representative had relied on Costco Wholesale UK v Miss Z Newfield, [2013] UKEAT/0617/12. There it had been argued that the award of 4 weeks’ pay was perverse, but the Tribunal’s award of 4 weeks’ pay made under section 38 of the EA was upheld by the EAT. No particular circumstances were relied upon to distinguish that case from the present one.[72]In the circumstances of this case, we made the award of a sum equivalent to 4 weeks’ pay in respect of the respondent’s failure under section 1 of the Employment Rights Act 1996. That is the higher award under section 38 of the Employment Act 2002, being 4 weeks of the claimant’s net weekly pay as at the date of termination of employment. That is calculated at the rate of the claimant’s weekly wage as at the date of termination on 16 January 2023, prior to the increase which came into effect at week 41 of tax year 22/23 (after the date of termination of the claimant’s employment). We were not assisted by the parties’ representatives in calculating the appropriate weekly pay figure. On our calculations, the applicable weekly net pay figure is £337.98, plus employer pension contributions. We calculated an average figure for pension contributions of £11.28 per week (£462.35 / 41 weeks). We then calculated the appropriate weekly wage figure to be (11.28 + 337.98) £349.26. The award made in respect of the successful claim under section 1 ERA and under section 38 of the Employment Act 2002 is (349.26 x 4) = £1397.04. Failure to Provide Itemised Pay Slips[73]We accepted that payslips for the respondent’s employees were produced by the accountancy firm responsible for the respondent’s payroll. Detailed pay slips were included in the Bundle. Their production by the instructed accountancy firm was not questioned. Mr McLean’s evidence that these had been so produced was not contested in cross examination.[74]Although we accepted that these payslips were produced by the accountants, and sent to the respondent by email, we did not accept the respondent’s position that these were provided to the claimant. We found the claimant’s evidence to be more credible than Mr McLean in that regard. Mr McLean was inconsistent in his evidence on where the payslips were stored. He did not provide a credible explanation as to how it was ensured that the payslips were collected by the employees, or what would happen to their payslip if an employee was absent from work. We did not accept that the respondent would have printed out payslips provided to them on email and kept a copy in a filing cabinet. We found that evidence to be implausible and without explanation why they would do that. It was significant that Mr McLean could not answer questions on the detail of what happened if an employee was not there to pick up his payslip, e.g. how long the pay slip would lie.[75]For these reasons, the claimant’s claim that he was not issued with payslips by the respondent is successful. A declaration is made that the claimant was not issued itemised payslips by the respondent, as is required under section 8 ERA.[76]No monetary award was sought by the claimant’s representatives in respect of that claim. We accepted the respondent’s representative’s submission that any monetary award arising from that failure would be in respect of illegal deductions. There was no evidence of any illegal or unknown deductions made from wages payments to the claimant from the respondent. There is then no monetary award made in respect of that successful claim. Unfair Dismissal[77]It was conceded by the respondent that the claimant’s dismissal was an automatically unfair dismissal under section 103A ERA.[78]Although the respondent did not contest liability under the s103A claim, we did require to consider the circumstances of the dismissal, in order to make our determinations on whether or not an uplift should be applied on application of the ACAS Code of Practice. For the reasons set out in the ‘Comments on Evidence’ section above, we found the evidence of Mr Fleming to be more credible than that of Mr McLean with regard to what had occurred. It was significant that we did not hear any evidence from the person who dismissed the claimant (Mr Wallace). The claimant’s dismissal was summary in the extreme. The claimant was not suspended. There was no investigatory meeting. The claimant did not receive any advance notice of the allegations. He did not have an opportunity to state his position on what had occurred prior to him being called in to be dismissed. He was not advised of right to bring to any disciplinary meeting a workplace companion or trade union official. Mr McLean relied on there being no recognised trade union. That does not detract from the statutory right of an employee to be accompanied at a disciplinary meeting. We accepted the claimant’s evidence in respect of there being no opportunity for the claimant to state his position on what had occurred. It was significant that Mr McLean did not deny that the claimant had been summoned by Mr Wallace. Or that the dismissal letter was given to the claimant at that meeting. Mr McLean’s evidence was inconsistent, as set out in the ‘Comments on evidence’ section above[79]Mr McLean did not dispute that when the claimant was ‘summoned’ to a meeting with Mr Wallace, or that at that meeting the claimant was given a letter informing him that he was dismissed. It was significant that there was no explanation as to how or when the claimant could have been given the opportunity to state his position on what had occurred prior to the decision to dismiss being made. In those circumstances, we concluded that the decision to dismiss had been made prior to the claimant being called to the meeting with Mr Wallace, and the letter informing the claimant of his dismissal was prepared prior to the meeting, and given to the claimant at the meeting, without him having the opportunity to state his position on what had occurred. The only information which formed the basis of the dismissal was that which Mr McLean had given Mr Wallace. There was no investigation prior to the decision to dismiss. These circumstances are all significant with regard to consideration of whether there should be an uplift, on application of the ACAS Code of Practice on Disciplinary procedures.[80]In consideration of the application of that Code of Practice, it was taken into account that the claimant was offered the opportunity to appeal his dismissal, and that he did so. It was significant that the appeal was to Mr Wallace, who had informed the claimant that he was dismissed. At the appeal stage there was no attempt to meet with the claimant, to obtain his position on what had occurred. There was no evidence of any steps investigatory steps taken at the appeal stage. The dismissal was upheld on appeal, which was a paper exercise. We concluded that this was a sham appeal, with no prospect of the decision to dismiss being re-considered or changed. We took into account that the respondent is a small company with no HR department. Remedy for Unfair Dismissal[81]We accepted the respondent’s position that account requires to be taken of sums received by the claimant from the respondent in respect of the successful interim relief application and the resulting Order for continuation of contract. We did not accept the respondent’s representative’s submissions that the award should be reduced to nil before the application of any ACAS uplift, resulting in an uplift of nil, and an award of nil.[82]We were not assisted by the parties’ representatives’ calculations in respect of payments made to the claimant under that Order. It was accepted in evidence that the claimant received payments from the respondent as reflected in the payslips included in the Bundle (at B74 – B82). Adding the net sums in those payslips gives a total net payment to the claimant of £5033.59. That sum is the Tribunal’s calculation, adding the figures of net pay to the claimant from the respondent from 10 February 2023 (when a lump sum was paid to the claimant), at week 45 of tax year 22/23, to week 4 of tax year 23/24. It is noted that those pay slips do not all record pension contributions being made, but that it is the parties’ representatives’ position that there is no ongoing loss in respect of pension contributions and that the claimant has received all sums due to him from the respondent in respect of pension contributions. On that basis, we made the calculations based on net wage only.[83]It was not in dispute that with effect from 20 March 2023, the claimant secured new employment, at a higher rate of pay than he had earned with the respondent. The start date of that employment was 20 March 2023. There was then a period when the claimant was earning from that new income and was also receiving payments from the respondent under the Order for Continuation of Contract. That Order was revoked by decision on 3 May 2023, which was backdated to have effect from 20 March 2023. By the time of that revocation, there had been overpayments to the claimant. On the basis of the payslips and on our calculations, by 3 May 2023, the claimant had received from the respondent total net pay of £5033.59 (being net pay figure from week 45 tax year 22/23 until week 4 of tax year 23/24). Under the Order for Continuation of Contract, the claimant was entitled to total net payment from the respondent of £3004.90 (being net salary from week 45 of tax year 22/23 to week 50 of that same tax year. On the Tribunal’s calculations, the claimant received an overpayment under the Order for Continuation of Contract of £2028.69 (being payments made from week 51 of tax tear 22/23 until week 4 of tax year 23/24).[84]It was not contested that the claimant’s dismissal was an unfair dismissal under section 103A ERA. The claimant is entitled to an unfair dismissal basic award of £399.20. Any ACAS uplift would only apply to a compensatory award.[85]We considered whether the claimant is entitled to a compensatory award in respect of that unfair dismissal. We accepted the claimant’s representative’s position that the claimant had loss arising from his dismissal until the date he began his new employment (20 March 2023). We accepted that for the purposes of calculation of any uplift in respect of failure to comply with ACAS code, it is that loss figure which should be the basis of the calculation. We calculated the claimant’s loss from 16 January 2023 until 20 March 2023 as £3004.90. That figure was calculated by the Tribunal adding the amounts detailed on the payslips as being paid to the claimant from week 45 to week 50 of financial year 22/23.[86]We then considered the extent to which any uplift should be applied. Given that the dismissal was summary in the extreme. There was no explanation offered as to why the ACAS Code was not followed. We did not find Mr McLean to be credible in his evidence that the claimant had been given the opportunity to state his position on the allegations. In the circumstances set out above, we considered that the respondent’s failure was unreasonable and that an uplift of 25% should be applied. The only attempt to comply with the Code was in respect of offering an appeal, but that was a sham, to the person who made the decision to dismiss and with no attempt to meet with the claimant or address the points in his letter of appeal. An uplift of 25% on the claimant’s losses to 20 March 2023 is (25% of £3004.90) = £751.22.[87]We did consider it appropriate to make an award in respect of loss of statutory rights. In circumstances where the claimant did not need to have qualifying service to bring his unfair dismissal claim and where he had 18 months service prior to his dismissal, we considered it appropriate to make an award of one week’s net pay in respect of loss of statutory rights (£349.26). That award is however part of the compensatory award: the remedy for unfair dismissal is only the basic award and the compensatory award.[88]We accept the respondent’s representative’s submissions that that compensatory award must be such award that the Tribunal considers to be just and equitable. We consider that to do so we must take into account payments which the claimant has received from the respondent in respect if the Order for Continuation of Contract. On the basis of the figures in the payslips, which are undisputed, under the Order for Continuation of Contract the claimant has received a total of £5,033.59 in respect of payments of net pay from week 45 of year 22/23 to week 4 of year 23/24. Under the Order for Continuation of Contract, until its effective date of revocation, the claimant is entitled to £3004.90 (payments shown in the payslips from week 45 to week 50). The claimant has then received an overpayment from the respondent of £2028.69 (being payments shown in the payslips of week 51 of year 22/23 to week 4 of year 23/24).[89]The calculation of the compensatory award is (£3004.90 + £751.22 + £349.26) £4,105.38. The payslips show the total amount paid to the claimant in respect of wages under the Order for Continuation as £5033.59. As the claimant has already received from the respondent more than the amount of that calculated compensatory award, it would not be just and equitable to make a compensatory award. The claimant’s compensatory award of £4,105.38 is reduced to nil on application of section 123 ERA, because the claimant has already received £5,033.59 from the respondent in respect of wages paid under the Order for Continuation of Contract, plus additional employer pension contributions. The claimant has had no financial loss resulting from his unfair dismissal, because of the application of the Order for Continuation of Contract.[90]For these reasons, on application of the just and equitable principle in section 123 ERA, no sum is awarded to the claimant in respect of an unfair dismissal compensatory award.
Award
[91]The claimant is awarded the total sum of (£1397.04 + £399.20) £1796.24. This is comprised of £1,397.04 in respect of the respondent’s failure to provide the claimant with a written statement of employment particulars, and the unfair dismissal basic award of £399.20.[92]Section 123 ERA does not apply to the award under section 38 EA or to the unfair dismissal basic award.[93]We note that the claimant has received overpayment from the respondent under the Order for Continuation of Contract and that will be taken into account by the respondent prior to the payment of sums due to the claimant in terms of this decision. The extent of the claimant’s entitlement under the Order for Continuation of Contract, to 20 March 2023 is £3004.90, week 45 to week 50 on the payslips. The claimant has then received an overpayment from the respondent of £2028.69, being payments set out in the payslips from week 51 of year 22/23 to week 4 of year 23/24.