Mr G McEvoy v McCallum Foods Ltd: 8000280/2023 and 8000302/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000280/2023, 8000302/2023
Between
Mr G McEvoyClaimantMcCallum Foods LtdRespondent
Before
Employment Judge C McManusDate 27 November 2023
JUDGMENT
[1]Under Rule 34 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, McCallum Foods Ltd T/A German Doner Kebab is substituted for the name of the respondent in both case number 8000280/2023 and case number 8000302/2023.[2]The claims registered under case number 8000280/2023 and case number 8000302/2023 are consolidated (combined).[3]The claimant’s dismissal was an unfair dismissal.[4]The claimant is awarded a total award of £13,444.20 (THIRTEEN THOUSAND, FOUR HUNDRED AND FORTY FOUR POUNDS AND TWENTY PENCE) in respect of this unfair dismissal, being comprised of a basic award of £2,419.20 and a compensatory award of £11.025.[5]The respondent has made an unauthorised deduction from wages contrary to Section 13 of the Employment Rights Act 1996 in terms of accrued but unpaid holidays and the respondent is ordered to pay to the claimant the sum of £472.12 (FOUR HUNDRED AND SEVENTY TWO POUNDS AND TWELVE PENCE) in this respect.[6]The claimant’s claim for breach of contract is successful and the respondent is ordered to pay to the claimant the sum of £2,304 (TWO THOUSAND, THREE HUNDRED AND FOUR POUNDS) in respect of his entitlement to 4 weeks’ pay (gross pay £576 x 4). This amount may be subject to appropriate tax and NI deductions, which may be made by the respondent prior to making this payment to the claimant, on vouching by the respondent of the extent of the deductions made.[7]The claimant is not entitled to a redundancy payment and his claim for a redundancy payment from the respondent is dismissed.[8]The claimant’s claim for unlawful discrimination on the grounds of his race is withdrawn and dismissed.[9]The claimant’s claim for unlawful discrimination on the grounds of his religion or belief is withdrawn and dismissed.
REASONS
[1]The claimant separately lodged three ET1 claim forms with the Employment Tribunal, allocated case numbers 8000280/2023, 8000281/2023 and 8000302/2023.[2]The ET1 claim forms for case numbers 8000280/2023 and 8000281/2023 were both submitted to the Employment Tribunal on 15 June 2023.[3]The ET1 with pre-registration case number 8000281/2023 was rejected as the names of the respondent did not match the ACAS certificate.[4]In the ET1 claim form registered under 8000280/202, The name of the respondent given at box2.1 of that ET1 in case number 8000280/2023 was ‘German diner kabab//MC Callum foods//dale glendinning manger”. At box2.2 it was stated: “German Doner Kebab, 56, Renfield Street, Glasgow, Scotland G2 1NF”[5]In the ET1 claim form registered under 8000280/2023, the claimant ticked boxes at section 8.1 indicating that he was bringing claims for:• Unfair dismissal• Discrimination on the grounds of race• Redundancy payment• Notice pay• Holiday pay• Arrears of pay• Other payments[6]At box 8.2 of that ET1, the claimant stated (spelling etc. unchanged): “Not paid me my hoilday pay 53 hours at 13 phone give me 200 pound said pay me at 3pm then 9pm then at 4 he wasn't paying me IV documents here. To say he owes me.so we had a phone call and then he suspended me for no reason as IV statement here ect . then he said he didn't receive a sick line IV documents here again then did the meeting himself when he can't do that and sacked me because he said I didn't turn up when I have had a doctor sick line in for work stress for 4 months still not received rest my pay ect ”[7]A letter was sent by the Employment Tribunal to the claimant on 21 June 2023. In that letter the claimant was informed that a Legal Officer had decided that part of the claim, regarding German diner kabab and dale glendinning manger could not be accepted because the claimant had not complied with the requirement to contact ACAS before instituting relevant proceedings. The claim under case number 8000280/2023 was part-rejected, proceeding against MC Callum foods only.[8]In that letter to the claimant on 21 June 2023, it was also noted that it appeared that a duplicate claim had been submitted by the claimant (case number 8000281/2023). The claimant was informed that the ET1 registered under case number 8000281/2023 was rejected as the names of the respondent does not match the ACAS certificate.[9]Separate correspondence was also sent to the claimant from the Employment Tribunal on 21 June 2023, informing that the claim under case number 8000280/2023 was acknowledged. On that same date, Notice of the claim registered under case number 8000280/2023 and Notice of a Case Management Preliminary Hearing (a ‘CMPH’) for that case, to be held by telephone conference call on 9 August was sent to: MC Callum foods German Doner Kebab 56 Renfield Street G2 1NF[10]No ET3 response was submitted to the Tribunal for 8000280/2023. The claimant replied by email to the Tribunal on 21 June 2023 stating ‘one of the names is wrong it’s German doner kabab’.[11]The ET1 claim form registered under 8000302/2023 was received by the Employment Tribunal on 23 June 2023. The name of the respondent given at box2.1 of that ET1 in case number 8000280/2023 was ‘German doner kabab”. At box2.2 it was stated: “German Doner Kebab, 56, Renfield Street, 52/56 Renfield Street, Glasgow, Scotland G2 1NF”[12]In the ET1 claim form registered under 8000302/2023, the claimant ticked boxes at section 8.1 indicating that he was bringing claims for:• Unfair dismissal• Discrimination on the grounds of religion or belief[13]At box 8.2 of the ET1 claim form registered under 8000302/2023, the claimant stated (spelling etc. unchanged): “The manger on shift didn't like me dale glendinning because I was Irish and kept making remarks about why I spoke. I got payed off because off lies. Made by a manger and not giving the chance two appeal it I had sick line in for work stress management said they didn't receive it but have said in email and recite that they did all lies from management IV evidence off everything that proves manger lieing.. manger sent statement out from staff saying I was aggressive two him over phone and staff said I was every statement from staff don't say that so it's all lies IV evidence two prove it ...this manager was taken in to cut wage bill so he didn't pay may wages and then sacked me..so it a breach off contract as my contract is with German doner kabab[14]On 29 June 2023, correspondence was issued from the Tribunal informing the claimant that the claim under case number 8000302/2023 was acknowledged and would proceed to a CMPH via telephone on 23 August 2023. On that same date, Notice of the claim registered under case number 8000302/2023 and Notice the CMPH for that case, on 23 August was sent to: German doner kabab German Doner Kebab 56 Renfield Street 52/56 Renfield Street G2 1NF[15]No ET3 response was received in respect of case number 8000302/2023. On 7 August 2023 the claimant was informed by the Tribunal that there had been no ET3 response received from the respondent in case number 8000302/2023 and that the CMPH arranged to take place via telephone would be converted to a Final Hearing, to be held via video (CVP). Case management orders for that Final Hearing were issued with that letter. A copy of the correspondence was sent to the respondent in case number 8000302/2023, as per the ET1.[16]The claimant submitted a completed Agenda form in respect of case number 8000302/2023, with copies of some documentary evidence.[17]The CMPH in case number 8000280/2023 was held via telephone by EJ MacLean on 9 August 2023. The Note issued after that CMPH summarised what was discussed. During that CMPH the claimant brought to EJ MacLean’s attention that he had also lodged the claim registered under case number 8000302/2023. After discussion, noting that a Final Hearing had been scheduled for claim registered under case number 8000302/2023, against German Doner Kebab, and having regard to the overriding objective, it was decided that the Final Hearing scheduled to take place via video (‘CVP’) on 23 August 2023, would be for consideration of the claim registered under case number 8000280/2023 and the similar proceedings under case number 8000302/2023, although the claims were not formally conjoined. Notice of this Final Hearing was issued to the respondent in both claims.
Evidence
[18]There were some preliminary case management discussions at this Final Hearing. Although case management orders had been issued, including in respect of documentary evidence, no Bundle was submitted. The claimant confirmed that he wished to rely of the digital copies of documents sent with his Agenda form. The claimant confirmed withdrawal of the claims under the Equality Act 2010.[19]There was discussion on the identity of the respondent in the claims. There are various names and addresses in the documentary evidence which the claimant relies on, as follows (as produced - not in chronological order): 1) ‘Record of Conversation’ (statement) dated 02/06/23, on paper branded ‘German Doner Kebab’, with a footnote stating: “Franchised Operated Business T/A German Doner Kebab 2 Byres Road, G11 5JY” 2) Further ‘Record of Conversation’ (statement) dated 02/06/23, on paper branded ‘German Doner Kebab’, with the same footnote as (1). 3) Undated letter ‘To whom it may concern’ on what appears to be GDK German Doner Kebab’ branded paper, with the address for ‘German Doner Kebab’ given as 52 – 56 Renfield Street, Glasgow, G2 1NF, stating: “I can confirm that Gerrard McEvoy is Currently Employed at McCallum Foods LTD Trading As German Doner Kebab. Gerard is Currently Employed as an Overnight Kitchen Cleaner and works 48 hours Per Week as per his contract at £13 Per Hour, His Gross monthly wage would total £2496. Should you require any more information please do not hesitate to ask.” 4) Undated letter ‘To whom it may concern’ on what appears to be ‘Doner Kebab, German Doner Kebab’ branded paper, with the address for ‘German Doner Kebab’ given as 52 – 56 Renfield Street, Glasgow, G2 1NF, stating: “I am writing this letter to confirm that Gerry Mcevoy is currently employed Full time with LMR Property LTD trading as German Doner Kebab. I can confirm that Gerry works 40+ hours per week at £13 per hour, On average he earns £2020 Gross pay Per Month.” A name and contact email address and phone number was given for the Area Manager. 5) A ‘Statement of Terms and conditions of employment’ for the claimant’s employment commencing on 25 February 2019, issued by ‘Fountain Restaurants Ltd (T/A German Doner Kebab), with the address given as ‘52-56 Renfield Street, G2 1NF’. 6) A photograph of a whiteboard with writing re. holidays. 7) A letter dated 08/06/2023, on paper branded ‘German Doner Kebab’, to the claimant, headed ‘Rescheduled disciplinary meeting’ with the same footnote as (1). 8) A letter dated 10/06/2023, on paper branded ‘German Doner Kebab’, to the claimant, headed ‘The outcome of your disciplinary meeting’ with the same footnote as (1). 9) A photograph of a German Doner Kebab branded business card for Dale Glendinning. 10) Screenshot of messages between the claimant and Dale Glendinning stating ‘Property T/A GDK (German Doner Kebab). 11) Copy SSP form re the claimant dated 06/06/23. 12) A letter dated 03/06/2023, on paper branded ‘German Doner Kebab’, to the claimant, headed ‘Confirming suspension and continuing investigation’, with the same footnote as (1). 13) Undated letter on paper branded ‘German Doner Kebab’, to the claimant, headed ‘disciplinary meeting, with the same footnote as (1). Identity of respondent[20]The claimant’s position was that the correct identity of the respondent is ‘McCallum Foods Ltd T/A German Doner Kebab’.[21]On consideration of the documentary evidence relied upon by the claimant, as set out above, I was satisfied that the correct identity of the respondent was McCallum Foods Ltd T/A German Doner Kebab’. I was satisfied that that respondent had had proper notice of the claims, served at an address where they carry out business. For these reasons, I decided to apply Rule 34 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, (‘the Tribunal Rules’) and substitute McCallum Foods Ltd T/A German Doner Kebab for the name of the respondent in both case number 8000280/2023 and case number 8000302/2023. Issues for determination[22]At this Final Hearing I determined the following issues:a. Was the claimant’s dismissal an unfair dismissal in terms of section 98 of the Employment Rights Act 1996 (‘the ERA’)?b. If so, what amount is the clamant entitled to in respect of an unfair dismissal basic award and compensatory award?c. Is the claimant entitled to any uplift to such award(s), in respect of the respondent’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures and section 123 of the ERA?d. Is the claimant owed any sums from the respondent in respect of accrued but unpaid wages, including in respect of accrued but unpaid holidays?e. Is the claimant owed any sums from the respondent in respect of unpaid notice pay?f. Is the claimant entitled to a redundancy payment from the respondent? Findings in fact[23]I made findings in respect of facts which were material to the issues for determination by this Tribunal.[24]The claimant worked as a nightshift cleaner in a takeaway food shop operated by the respondent, or its’ predecessor, at 52 – 56 Renfield Street, Glasgow. The claimant’s employment there began on 25 February 2019 and ended when the claimant was dismissed on 10 June 2023. When the claimant commenced working there, he was working 40 hours a week. That later increased to 48 hours a week. The claimant earned £13 an hour, with a gross monthly pay of £2496, net (take home) monthly pay of £2200.[25]On 2 June 2023 the claimant had a dispute with the manager of the takeaway shop in respect of holiday pay. The claimant was due payment in respect of 6 days holiday taken in May, as was noted on a whiteboard in the takeaway premises. While working on his shift on 1 June, the claimant had a phone call with the manager (Dale Glendinning). The claimant was seeking payment of 6 days holiday pay. Dale Glendinning’s position was that the claimant was not entitled to the full amount, only £255.88. The claimant became angry and shouted at Dale Glendinning that he was owed holiday pay. The claimant’s position was that he was owed for 6 days holiday, being (56 hours @ £13 per hour) £723 gross. The claimant said that he would not return to work until he got his 6 days holiday pay. Dale Glendinning directed that the claimant be paid holiday pay of £255.88. This was paid to the claimant in cash. The claimant left the premises and did not return.[26]On 3 June 203 the claimant was sent a letter from Dale Glendinning headed ‘Confirming suspension and continuing investigation’. In that letter it was stated “We are currently investigating allegations of threatening behaviour’. No information was given in respect of who would be carrying out this investigation inviting him to a disciplinary meeting.[27]The claimant was then sent an undated letter from Dale Glendinning inviting him to a diciplinary meeting on 7 June at the Renfield Street premises. It was stated that it was alleged that on 2 June 2023 the claimant ‘exerted bullying behaviour while in a place of work’. That letter informed that the allegations could lead to the claimant being dismissed for gross misconduct. It stated that the claimant had a right to be accompanied at the meeting by a trade union representative or workplace colleague. It stated that ‘I enclose Remit of Mignon Ried’s investigation, with notes.” It stated that if the claimant failed to attend the diciplinary meeting without good reason a decision may be made in his absence.[28]The claimant was sent with that letter copies of statements which had been taken from other employees. The statements confirmed that the claimant had shouted to Dale Glendinning on the phone about him being entitled to holiday pay. The statements do not say that the claimant’s behaviour was threatening or bullying[29]On 6 June 2023, the claimant completed and sent a self- certification sickness form to Dake Glendinning. He stated the reason for his absence as ‘stress caused by management in work’. The start date for the 7 day self certification was stated as 2 June 2023. the digital copy of that certificate to Dale Glendinning, stating “Thank you! Not be able two make it cos off work stress related.” On 8 June Dale Glendinning sent a text message to the claimant “Thank you for reaching out. I will pass your Self Certificate to our accounts team.”[30]On 8 June the claimant received a letter from Dale Glendinning inviting him to a rescheduled disciplinary meeting on 10 June. That letter stated that the claimant was required to attend the meeting and if he failed to attend without good reason a decision would be taken in his absence. The claimant did not further contact Dale Glendinning and did not attend the disciplinary meeting.[31]On 10 June the claimant was sent a letter from Dale Glendinning informing him that a decision had been taken in his absence. In that letter it was stated that the purpose of the meeting had been to offer him the opportunity to give a satisfactory explanation for the behaviour which was alleged to be bullying behaviour in the workplace. The claimant was informed that as no explanation of the allegations had been received, and there was no explanation for the claimant’s failure to attend the disciplinary hearing on 10 June, Dale Glendinning’s decision was to dismiss the claimant for gross misconduct, without notice or pay in lieu of notice. That letter gave no information in respect of any procedure for the claimant to appeal that decision.[32]The claimant had no income following his dismissal. He was unable to meet his bills and became homeless. He applied for a number of jobs and obtained a job working 20 hours a week, as a cleaner. His take home pay from that job is £800 a month. He began that job in August 2023. Relevant law Unfair Dismissal
Relevant law
[33]The law relating to unfair dismissal is set out in the Employment Rights Act 1996 (‘the ERA’), in particular Section 98 with regard to the fairness of the dismissal and Sections 118 – 122 with regard to compensation. Section 98(1) states: - ‘In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.[34]Section 98(2) sets out that a reason falls within this subsection if it –(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,(b) relates to the conduct of the employee, [(ba) is retirement of the employee](c) is that the employee was redundant, or(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.[35]Where the dismissal is said to be by reason of the employee’s conduct, consideration requires to be made of the three stage test set out in British Home Stores -v- Burchell 1980 ICR 303, i.e. that in order for an employer to rely on misconduct as the reason for the dismissal there are three questions which the Tribunal must answer in the affirmative, namely, as at the time of the dismissal:- i. Did the respondent believe that the claimant was guilty of the misconduct alleged? ii. If so, were there reasonable grounds for that belief? iii. At the time it formed that belief, had it carried out as much investigation into the matter as was reasonable in the circumstances?[36]What has to be assessed is whether the employer acted reasonably in treating the misconduct that he believed to have taken place as a reason for dismissal. Tribunals must not substitute their own view for the view of the employer (Sainsbury's Supermarkets Ltd –v- Hitt [2003] IRLR 23 and London Ambulance Service NHS Trust -v- Small [2009] IRLR 563) and must not consider an employer to have acted unreasonably merely because the Tribunal would not have acted in the same way. Following Iceland Frozen Foods Ltd –v- Jones 1983 ICR 17 the Tribunal should consider the ‘band of reasonable responses’ to a situation and consider whether the respondent’s decision to dismiss, including any procedure prior to the dismissal, falls within the band of reasonable responses for an employer to make. The importance of the band of reasonable responses was emphasised in Post Office -v- Foley [2000] IRLR 827.[37]Section 98(4) of the ERA sets out that where the employer has fulfilled the requirements of subsection 98(1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –a. depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, andb. shall be determined in accordance with equity and the substantial merits of the case. This determination includes a consideration of the procedure carried out prior to the dismissal and an assessment as to whether or not that procedure was fair.[38]Where the Tribunal makes a finding of unfair dismissal (or where that is conceded) it can order reinstatement or in the alternative award compensation, made up of a basic award and a compensatory award.[39]The basic award is calculated as set out in the ERA Section 119, with reference to the employee’s number of complete years of service with the employer, their gross weekly wage and the appropriate amount with reference to the employee’s age. Section 227 sets out the maximum amount of a week’s pay to be used in this calculation. There is a statutory cap on the amount of weekly pay which can be used in this calculation.[40]The basic award may be reduced in circumstances where the Tribunal considers that such a reduction would be just and equitable, in light of the claimant’s conduct (ERA Section 122 (2)).[41]The compensatory award can also be reduced. In terms of the ERA Section 123(1) the compensatory award is such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. Section 123(6) of the Employment Rights Act 1996 states that: ‘Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable.’[42]There are circumstances where an ‘uplift’ may be applied to an unfair dismissal compensatory award, where there has been unreasonable failure to follow the ACAS Code of Practice (section 207A (2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULR(C)A’)). This is known as ‘the ACAS uplift’. Section 207A(2) TULR(C )A provides that: ‘If, in any proceedings to which this section applies, it appears to the employment tribunal that –(a) the claim to which the proceedings relate concerns a mater to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and (c ) the failure was unreasonable, the Employment Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more so than 25 per cent.’[43]The application of the ACAS uplift was considered by LJ Brandon in the Court of Appeal authority Nelson v BBC (No.2) 1980 ICR 110, CA: “An award of contribution to a successful complainant can only be reduced on the ground that he contributed to his dismissal by his own conduct if the conduct on his part relied on for this purpose was culpable or blameworthy. This conclusion can be arrived at in various ways. First, it can be said that the epithet “culpable” or “blameworthy” should be implied before the word “action”. Or secondly it can be said that the expression “caused or contributed” impliedly incorporates the concept of culpability or blameworthiness. Or thirdly it can be said that, in any case, it could never be just or equitable to reduce a successful complainant’s compensation unless the conduct on his part was relied on as contributory was culpable or blameworthy. For my part, I prefer the third way of arriving at the conclusion to either the first or second and would approach the application of paragraph 19(3) on that basis. It is necessary, however, to consider what is included in the concept of culpability or blameworthiness in this connection. The concept does not, in my view, necessarily involve any conduct of the complainant amounting to a breach of contract or a tort. It includes, no doubt, conduct of that kind. But it also includes conduct which, while not amounting to a breach of contract or a tort, is nevertheless perverse or foolish, or, if I may use a colloquialism, bloody-minded. It may also include action which, though not meriting any of those more pejorative epithets, is nevertheless unreasonable in all the circumstances. I should not, however, go as far as to say that all unreasonable conduct is necessarily culpable or blameworthy; it must depend on the degree of unreasonableness involved. It follows from what I’ve said that it was necessary for the industrial tribunal in this case, in order to justify the reduction of Mr Nelson’s compensation which they made, to make three findings as follows. First, a finding that there was conduct of Mr Nelson in connection with his unfair dismissal which was culpable or blameworthy in the sense which I have explained. Secondly, that the unfair dismissal was caused or contributed to some extent by that conduct. Thirdly that it was just and equitable, having regard to the first and economic findings, to reduce the assessment of Mr Nelson’s loss by 60 per cent.”[44]Section 124A of the ERA provides that where an award of compensation for unfair dismissal falls to be reduced or increased under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (effect of failure to comply with Code: adjustment of awards), or increased under section 38 of that Act (failure to give written statement of employment particulars), the adjustment shall be in the amount awarded under section 118(1)(b) and shall be applied immediately before any reduction under section 123(6) or (7). Failure to pay wages[45]The Employment Rights Act 1996 (‘the ERA’) at section 13 provides for the right of an employee not to suffer unauthorised deductions. Section 14 sets out the provisions in respect of excepted deductions and section 16 sets out the provisions in respect of excepted payments. Section 13(3) states: ‘Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.’ Redundancy Pay[46]The right to a redundancy payment is set out in the Employment Rights Act (‘ERA’) Section 135. The right to a redundancy payment is in circumstances where the employment is terminated by reason of redundancy. The definition of a redundancy situation is in section 139 of the ERA. Notice Pay[47]The rights in respect of a minimum period of notice of termination of employment are set out at Part IX of the ERA. Holiday pay[48]The Working Time Regulations 1998 (‘the WTR’) provide that every worker is entitled to annual leave. Regulations 13 and 13A entitle workers to minimum levels of annual leave. Regulations 14 sets out how compensation in respect of payment of accrued but untaken leave is calculated. Regulation 16(1) provides that a worker is entitled to be paid at the rate of a week’s pay in respect of each week of annual leave to which he or she is entitled under Regulations 13 or 13A. A week’s pay is calculated substantially in accordance with sections 221-224 of the ERA. Failure to Give Notice or Payment in Lieu of Notice[49]The Employment Tribunal has jurisdiction to hear breach of contract claims to a maximum of £25,000. This includes claims in respect of failure to pay notice. Section 86 of the ERA sets out the position with regard to the rights of an employer and employee to a minimum period of notice of termination of employment. Section 86(1) sets out that the notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more is not less than one week’s notice if his period of continuous employment is less than two years. Overriding Objectives[50]This case was dealt with in terms of the Tribunal’s overriding objective as set out in Rule 2 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘The Procedure Rules’), being: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. 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 the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” Comments on evidence[51]I found the claimant to be a generally credible witness. I took into account the documentary evidence which had been provided. I took into account that the respondent had submitted no response to the claims, had made no communication with the Employment Tribunal office and did not attend the Final Hearing. I took into account that some of the documentary evidence was undated and what was produced in respect for the respondent’s investigation was only statements, with no ‘Remit’. I found that the documentary evidence produced by the claimant was consistent with and supported the claimant’s position in his oral evidence.[52]In unfair dismissal claims it is for the respondent to prove that the dismissal was a fair dismissal. No defence has been made to the claimant’s claim of unfair dismissal. I considered the evidence before me. I was careful to consider the circumstances and not to substitute my own view for the view of the employer. I considered the following to be particularly significant:• The witness statements provide evidence of the claimant shouting to Dale Glendinning in respect of his position that he was owed 6 days holiday pay.• The statements do not record those individuals’ positions in respect of any specific allegations of threatening or bullying behaviour by the claimant.• The letters to the claimant do not set out detail of what behaviour by the claimant was considered to be initially threatening, or then bullying behaviour. The letters do not detail what is alleged to have been done by the claimant.• The claimant’s evidence is that he did shout at his manager, and that he shouted because he was not being paid his due holiday money.• The claimant’s oral evidence was that he denied any bullying or threatening behaviour.• There is no explanation why the allegation changed from threatening behaviour to bullying behaviour.• There is no evidence of any contact from the respondent to the claimant to investigate the position in the claimant’s sickness self certificate that the reason for his absence was ‘stress caused by management in work’.• The letters to the claimant were from the manager who the claimant admits he shouted at, and who was at the centre of the alleged failure to pay holiday pay.• The decision to dismiss was taken by the manager who was at the centre of the claimant’s behaviour.[53]On the basis of the evidence before me, the statements taken in the investigation did not provide grounds for a belief that the claimant’s behaviour was bullying behaviour. The decision was made by the manager with whom the claimant had the dispute. The reference to an ‘accounts team’, and to ‘our Renfield Street branch’ suggests a sizeable operation, where someone who was not involved in the dispute with the claimant could have corresponded with the claimant and made the decision at the disciplinary hearing.[54]I took into account that the claimant could have provided a written account of his position in respect of what had happened in his dispute with Dale Glendinning, and did not. I took into account that the claimant had not provided any medical evidence to support his position that he was unfit to attend a meeting because of ‘workplace stress’, and that his self certified absence had expired before the date of the re-arranged disciplinary meeting, without any further communication from the claimant to the respondent. The start date for the 7 day self certification was stated as 2 June 2023, so expired on 8 June. I took into account that the respondent had taken some steps in investigation and to make arrangements for a disciplinary hearing prior to the dismissal. I took into account that the claimant had been notified of his right to be accompanied at the disciplinary hearing and that if he did not attend that a decision may be made in his absence. I also took into account that the claimant had not been offered a right of appeal of his dismissal.[55]In all the circumstances, I decided that the claimant’s dismissal was an unfair dismissal because the respondent did not have reasonable grounds to believe that the claimant had carried out bullying behaviour. I considered the ‘band of reasonable responses’ to the situation and whether the decision to dismiss, including the procedure prior to the dismissal, falls within the band of reasonable responses for an employer to make. In circumstances where the statements taken do not support allegations of bullying or of threatening behaviour, where the claimant was given no detail of what he was alleged to have done in respect of the allegations of bullying or of threatening behaviour where no steps were taken to investigate the claimant’s position that he was absent because of work related stress and where the decision to dismiss was taken by the manager at the centre of the reasons for the claimant’s behaviour and where an appeal was not offered, the claimant’s dismissal was an unfair dismissal. The claimant is entitled to an unfair dismissal award calculated with regards to a factor related to his age (DOB 26/2/77), his number of complete years of service with the respondent (4) and his gross weekly wage of £576 (£2496 x 12 / 52). The claimant’s basic award for unfair dismissal is (1 x 4 x £576) £2,304.[56]The claimant has suffered wage loss as a result of his unfair dismissal. His compensatory award is calculated from the date of dismissal as (2 months x £2300) £4600, plus loss from starting his part time job of (£2300 - £800) £1,500. The compensatory award includes additional loss of (6 x £1,500) £9,000, to reflect wage loss, including future wage loss, from the period when the claimant began his part time job.[57]In all the circumstances I do not consider it to be just and equitable to reduce any award in respect for contributory conduct. The claimant was shouting because he was seeking payment of holiday pay which he was entitled to. The statements do not support a position that the claimant’s conduct contributed to his dismissal to the extent that a reduction should be applied.[58]In all the circumstances, taking into account the extent to which the respondent sought to comply with a disciplinary procedure, an uplift of 5% is applied to both the basic and compensatory awards, to reflect that no appeal was offered. The uplift to the basic award is (5% of £2,304) £115.20. The uplift to the compensatory award is (5% of (£1,500 + £9,000) £10,500) £525.[59]The claimant is entitled to a total basic award of (£2,304 + £115.20) £2,419.20 and a total compensatory award of (£11,025). Redundancy Pay[60]The reasons for the claimant’s dismissal was not redundancy. There was no evidence before me that the circumstances were that there was a redundancy situation effecting the claimant in terms of the statutory definition of redundancy. The claimant is not entitled to a statutory redundancy pay. Holiday pay[61]I was satisfied that the claimant is entitled to the sum of £472.12 from the respondent, being the balance due to him in respect of 6 days accrued but unpaid holidays (56 hours x £13 = £723) and taking into account the sum paid to him in respect of these holidays (£723 - £255.88). The respondent may be entitled to make further tax and NI deductions in respect of that holiday payment. Breach of Contract / Notice Pay[62]The claimant was dismissed without notice or pay in lieu of notice. His statutory entitlement is to one week’s pay for each complete year of employment. In these circumstances, the claimant’s claim for breach of contract is successful and claimant is entitled to 4 weeks’ notice pay. On the basis of gross weekly pay of (£2496 x 12 / 52) £576, the entitlement is to 4 weeks’ pay. That is a gross payment of (gross pay £576 x 4). £2,304. That gross amount may be subject to appropriate tax and NI deductions.
Background
[1]These claims had proceeded undefended. The ET1 claim form in both claims had been served on the Respondent’s address given by the claimant in the ET1 forms (56 Renfield Street, Glasgow). No ET3 response was received, in respect of either claim. The claims were conjoined and proceeded to a Final Hearing on 23 August 2023. The decision in respect of both claims was set out in the Judgment in respect of case numbers 8000280/2023 and 8000302/2023, dated 4 October 2023 and issued to parties on 9 October 2023 (‘the judgment’).[2]On 18 October 2023, email correspondence was sent to the Employment Tribunal from Anderson Strathern Solicitors. Their position was that they were newly instructed by the respondent, that their client had not received a copy of the judgment but that they had ‘heard that a judgment has been issued against them.’ The solicitors requested a copy of any issued judgment ‘under case numbers 8000280/2023 or 8000302/2023’ as soon as possible.[3]The judgment, and subsequently the ET1 forms under each claim number were subsequently sent to Anderson Strathern. These were sent without referral to an Employment Judge and without being copied to the claimant.[4]On 23 October 2023, Anderson Strathern emailed the Employment Tribunal office, copied to the claimant, with the respondent’s application to reconsider the judgment and separate application to allow ET3s to be received late. The respondent’s grounds for seeking reconsideration of the judgment are set out in letter from Anderson Strathern solicitors dated 23 October 2023. In summary, their position is:• The respondent’s registered address is not 56 Renfield Street, Glasgow, although they do operate a fast food business from there.• The respondent had not received the ET1 claim forms, Notice of Hearing, Judgment or any other correspondence from the Employment Tribunal office in respect of these claims and therefore has not defended the claims or attended any hearings.• It would be in the interests of justice for the judgment to be revoked, the ET3 be allowed late and the claims proceed defended.[5]Draft ET3s in respect of claims under case numbers 8000280/2023 and 8000302/2023 were also sent to the Tribunal office. The Respondent’s representative’s correspondence requesting that the ET3s in case numbers 8000280/2023 and 8000302/2023 be received late set out the following: “The respondent did not receive a copy of the claims and therefore did not receive notification of the date for an ET3 response to be submitted. Had they known about the claims, they would have proceeded to defend the actions against them. The Respondent heard gossip amongst staff (former and current) that an employment tribunal claim had been raised by Mr Gerry McEvoy. The Respondent’s, Jeff Reid, called the Glasgow Employment Tribunal to enquire about a claim and was advised that the claims had been rejected as they had no basis. For that reason, they did not lodge a defence. The judgment of 9 October 2023 notes that the Claimant’s third claim, case no. 8000281/2023 was rejected as the names of the Respondent did not match the ACAS certificate and that a decision was taken to not accept the claims against German doner kabab and Dale Glendinning in respect of case no. 8000280/2023 which appears to have given rise to the confusion about the status of the claim(s).The Respondent then became aware of an alleged judgment issued against them via gossip. They were also contacted by the press about the judgment on 18 October 2023. That is what prompted my instruction and contact with the tribunal on 18 October 2023 to request a copy of any judgment. Although the judgment was sent to myself on 18 October 2023, the Respondent has never received a copy of the claims. On 19 October, I requested a copy of the claim as I came to be aware that my client did not hold a copy. The Tribunal shared a copy on 20 October to myself by email. Taking into account that Mr Jeff Reid is a lay person it was not unreasonable for him to consider the claim had been rejected given the discussion with the Glasgow Employment Tribunal particularly given the operational restaurant nor their head office had received copies of any correspondence from the Tribunal. It would be in line with the overriding objective of the tribunal to grant an extension of time for the Respondent to submit the ET3. It would also be in the interests of justice to allow the Respondent to defend the claim. We, therefore, enclose a draft of the Respondent’s response to the claim.”[6]Email correspondence was subsequently sent by the claimant to the Employment Tribunal office. These emails were not copied to the respondent or their representative. In summary, the claimant’s position was:• He didn’t believe that the respondent’s position;• The respondent had ‘refused’ to speak to ACAS and had ‘told lies’;• The respondent’s position did not make sense;• An Employment Judge has considered the evidence and made the decision; and• A ‘new trial’ would be ‘wasting court time.’[7]On 30 October 2023, correspondence was sent from the Employment Tribunal office to both parties. This informed both parties that the respondent’s representative’s email of 23 October 2023 was being taken as an application for reconsideration of the Judgment dated 4 October 2023, on the basis that the respondent’s representative was seeking:(1) that the judgment dated 4 October 2023 be revoked;(2) that the ET3 be allowed late; and(3) that the case proceed, defended, to a Final Hearing on the merits.[8]In that correspondence, both parties were informed that the respondent’s representative’s correspondence was accepted as an application for reconsideration under Rule 71 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 ('the Tribunal Rules'). Under Rule 72 of the Tribunal Rules, the claimant was given a period of 21 days i.e. until Friday 20 November 2023 to set out in writing his comments on the reconsideration application. Both parties were informed that the parties' written representations on the reconsideration application would then be considered, and a decision made on whether or not to revoke the decision dated 04 October 2023.[9]Both parties were informed “Employment Judge McManus does not consider it necessary for there to be a hearing on this reconsideration application. If, following her consideration of both parties' written positions, Employment Judge McManus reconsiders the decision and decides to revoke the decision dated 04 October 2023, the ET3 will be allowed late and a Final Hearing will be scheduled.” This was the initial view at the Rule 72(1) stage in the reconsideration process.[10]Further email correspondence was received from the claimant, on 30 October and 1 November. This email correspondence was not copied to the respondent’s representative. In summary, the claimant’s position was that:• His case was ‘won by the evidence and paperwork’;• It had been found that the respondent had ‘broken the law’;• No new evidence could change the outcome;• The respondent had ‘told lies’;• The claimant didn’t believe that the respondent had not received correspondence from the Employment Tribunal office;• ‘Stress’ was being caused to the claimant;• The correspondence from the Employment Tribunal office had been sent to the respondent’s ‘main address’;• The claimant had given his evidence ‘truthfully and faithfully’;• The claimant queried why the respondent would have case reference numbers if they had not received any correspondence from the Employment Tribunal office;• An Employment Judge has considered the evidence and made the decision;• The respondent ‘broke the law and didn’t follow procedure’;• The respondent is seeking to cause delay and ‘more suffering’ for the claimant; and• A ‘retrial’ would be a waste of court time and would not be in the interests of justice.[11]Correspondence was then sent to both parties from the Employment Tribunal office on 3 November 2023. That referred to emails from the claimant of 25 October & 1 November 2023. Both parties were informed that there would be a Reconsideration Hearing on Friday 24 November. Both parties were informed that parties' written positions on whether the Judgment should be revoked would be considered and that if parties wished to submit any further written representations or any documents they wish to rely on in respect of this reconsideration, they should do so by Monday 20 November, copying their correspondence to the other party.[12]No further correspondence or documents were received from the respondent’s representative. On 6 November, the Employment Tribunal office forwarded to the respondent’s representative the claimant’s emails of 25 October. Both parties were reminded that under Rule 92 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (‘The Tribunal Rules’) correspondence sent to the Tribunal Office must be copied to the other party.[13]The claimant sent further email correspondence to the Employment Tribunal office on 15 and 17 November, with attachments. His position in these emails was that(1) he understood that the respondent’s business was being sold and that he had not copied his emails to the respondent’s solicitor because he didn’t want the respondent to know that he knew they were selling the business(2) the respondent had changed name several times. Correspondence was sent from a Legal Officer to the claimant in response stating, “the matters raised in the correspondence above are not ones to which the tribunal can give advice.”[14]I have dealt with this reconsideration on application of the overriding objective to deal with matters fairly, as set out in Rule 2 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (‘the Tribunal Rules’). Decision on Reconsideration Application[15]I have considered the following:• Correspondence from Anderson Strathern solicitors referred to above;• Terms of draft ET3s and paper apart submitted by Andeson Strathern solicitors on 24 October 2023;• Correspondence from the claimant referred to above; and• The judgment.[16]I consider the following to be significant:• The judgment set out the evidence which was considered to be significant in coming to the decision, set out particularly in the judgment at paragraph 52.• Paragraph 55 of the judgment sets out the reasons why it was decided that the claimant’s dismissal was an unfair dismissal.• Both parties were directed to submit any documents in respect of this reconsideration by 20 November 2023 (in letter from the Tribunal office of 3 November 2023).• No documents have been submitted by the respondent to support the position set out in their paper apart or to rebut the conclusions formed on the basis of the evidence presented by the claimant, as set out in the judgment.• The position in the respondent’s representative’s letters to the Employment Tribunal office is that the claimant was accused of very serious misconduct but no documentary evidence has been submitted to support that position. The respondent has not set out what evidence would be relied upon by them in respect of them having reasonable grounds to believe that the claimant had acted in gross misconduct. In particular, no statements from witnesses supporting that position have been submitted. Reference is made to the position in paragraph 53 of the judgment.• No explanation has been provided by the respondent as to why the decision to dismiss was taken by the manager at the centre of the reasons for the claimant’s behaviour.• The respondent’s position in the paper apart to the draft ET3 is that the claimant was informed of the dismissal decision by email and that he did not appeal that decision. No explanation has been provided by the respondent on the significant finding that the claimant was not offered an appeal.• The respondent’s position in their draft paper apart is that their internal procedures were followed. This does not address the conclusions of unfairness in respect of the procedure followed, as set out at paragraphs 52 – 55 of the decision.• The respondent’s representative’s position is that any award to the claimant should be reduced to take into account his contribution to the dismissal i.e., that the dismissal was because of the claimant’s conduct.• The issue of contribution was considered (set out at paragraph 57 of the judgment). That paragraph 57 states: “In all the circumstances I do not consider it to be just and equitable to reduce any award in respect for contributory conduct. The claimant was shouting because he was seeking payment of holiday pay which he was entitled to. The statements do not support a position that the claimant’s conduct contributed to his dismissal to the extent that a reduction should be applied.”• The respondent has not provided for this reconsideration any statements which they would seek to rely on to support their position on their belief of the extent of the claimant’s alleged misconduct.• The respondent now seeks to rely on Polkey v AE Dayton Services Limited [1987] ICR 142 to argue that the Claimant would have been dismissed in any event and to seek a reduction in any award for compensation accordingly. The have not addressed what has been found, on the evidence submitted by the claimant, to be substantive unfairness.• No explanation has been provided to explain why the respondent’s representative’s first contact to the Employment Tribunal office in respect of this case, on 18 October 2023, referenced case numbers 8000280/2023 & 8000302/2023, despite it being the respondent’s position that they had not seen the judgment or any correspondence in respect of this case.[17]No documentary evidence has been provided by the respondent to support a position that on consideration of evidence relied upon by the respondent there is likely to be a conclusion that the claimant’s dismissal was a fair dismissal.[18]In the judgment, there was no consideration of any argument following Polkey v AE Dayton Services Limited [1987] ICR 142 that the claimant’s compensation should be reduced to take into account a position that he would have been dismissed fairly had a fair procedure been applied (known as a ‘Polkey reduction’).[19]Following the House of Lords decision in Polkey v AE Dayton Services Ltd 1988 ICR 142, HL, a Tribunal is entitled to consider making a Polkey reduction when assessing the compensatory award payable in respect of the unfair dismissal, to consider whether a reduction should be made on the ground that the lack of a fair procedure made no practical difference to the decision to dismiss.[20]There were a number of reasons for the decision that the claimant’s dismissal was an unfair dismissal, as set out at paragraph 55 of the judgment. These were not merely procedural. The claimant’s dismissal was found to be substantively and procedurally unfair.[21]In these circumstances, on reconsideration my decision is that it is not in the interests of justice to revoke the decision and for the claims to proceed defended to a full Final Hearing on the merits.[22]I considered whether it was in the interests of justice to allow this case to proceed to a Remedy Hearing only in respect of whether there should be any application of a Polkey reduction. I considered the guidance given by Mr Justice Elias, the then President of the EAT, in Software 2000 Ltd v Andrews and ors 2007 ICR 825, EAT. In that case, Mr Justice Elias reviewed all the authorities on the application of Polkey and summarised the principles to be extracted from them. These included:• in assessing compensation for unfair dismissal, the employment tribunal must assess the loss flowing from that dismissal, which will normally involve an assessment of how long the employee would have been employed but for the dismissal;• if the employer contends that the employee would or might have ceased to have been employed in any event had fair procedures been adopted, the tribunal must have regard to all relevant evidence, including any evidence from the employee (for example, to the effect that he or she intended to retire in the near future);• there will be circumstances where the nature of the evidence for this purpose is so unreliable that the tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can properly be made. Whether that is the position is a matter of impression and judgement for the tribunal;• however, the tribunal must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence; and• a finding that an employee would have continued in employment indefinitely on the same terms should only be made where the evidence to the contrary (i.e. that employment might have been terminated earlier) is so scant that it can effectively be ignored.[23]The reasons for the amount of the claimant’s compensatory award are set out at paragraphs 56 – 59 of the judgment. The respondent has made no submissions on the extent of the period to which the compensatory award relates. Their argument that a Polkey should be applied is made only in the paper apart to their draft ET3 (at paragraph 18). On the findings in the judgment, and where no indication has been given of any further documentary evidence being relied upon by the respondent, no sensible prediction can be made that a Polkey reduction should be applied. In their reconsideration application no evidence has been presented to support a position that the amount of compensation awarded to the claimant was not just and equitable. The claimant’s dismissal has been found to be unfair for substantive as well as procedural reasons. For these reasons, I consider that it is not in the interests of justice to now allow this case to proceed to a Remedy Hearing to determine whether a Polkey reduction should be applied.[24]The decision that the claimant’s dismissal was an unfair dismissal stands.[25]In respect of the respondent’s position on the claim under section 13 of the Employment Rights Act 1996, the respondent has provided no information on their calculation of the amount paid to the claimant in respect of holidays. Paragraph 48 of the judgment sets out the statutory basis of the claimant’s claim for unpaid holidays. Paragraph 61 sets out the reasons why that claim was successful, as follows: “I was satisfied that the claimant is entitled to the sum of £472.12 from the respondent, being the balance due to him in respect of 6 days accrued but unpaid holidays (56 hours x £13 = £723) and taking into account the sum paid to him in respect of these holidays (£723 - £255.88). The respondent may be entitled to make further tax and NI deductions in respect of that holiday payment.”[26]Account was taken of the sum paid to the respondent in respect of holidays. In the paper apart to their draft ET3s, the respondent accepts that the claimant was due 6 days holiday. Their position at paragraphs 13 and 21 of the paper apart) is that the claimant was paid the sum of £255.88 in respect of 6 days holidays. No explanation has been provided by the respondent to as to why 6 days holiday entitlement £723, leaving a shortfall of £472.12 when the payment of £255.88 is taken into account. In these circumstances, it is not in the interests of justice to proceed to a defended Final Hearing on that claim.[27]In respect of the respondent’s position on the redundancy claim, that claim was dismissed in the judgment. That effectively accepted what is the respondent’s position, which is that the claimant was not dismissed by reason of redundancy. It is not in the interests of justice to proceed to a defended Final Hearing on that claim.[28]In respect of the claim for breach of contract / notice, the respondent’s defence is based on their position that the claimant was dismissed for gross misconduct. As set out above, no documentary evidence has been provided by the respondent to support a finding that the claimant had acted in gross misconduct. Given that no indication of additional evidence to be relied upon to support the basis for the respondent’s reasonable belief that the claimant had acted in gross misconduct, is not in the interests of justice to proceed to a defended Final Hearing on that claim. Reference is made by the respondent to witness statements. As set out in the judgment, witness statements were relied upon by the claimant and did not support a reasonable belief that the claimant had acted in gross misconduct.[29]In the paper apart to the draft ET3s, the respondent reserves their position on time bar, on the basis that they have no had sight of the ACAS Early Conciliation Certificate (‘the ECC’). The ECC is on file and I have considered this. The date of receipt by ACAS of the EC notification is 13 June 2023. The date of issue by ACAS of the ECC is 15 June 2023. The date of dismissal was 10 June 2023. The ET1 claim forms were submitted on 15 June 2023 and 23 June 2023, as set out at paragraphs 1 – 11 of the judgment.[30]In all these circumstances, it is not in the interests of justice to revoke the decision.[31]As set out in paragraphs 1 – 17 of the judgment, there was some confusion on the correct identity and address for the respondent. In his correspondence to the Tribunal the claimant expresses concern that premises formerly operated by the respondent (including at Renfield Street in Glasgow) are no longer owned by the respondent. In their draft ET3s the respondent’s representative has provided the respondent’s company name (and company number (14428379) and registered address. The Tribunal Rules allow addition, substitution and removal of a party (Rule 34). It is in the interests of justice and in line with the overriding objective in Rule 2 for the respondent to be correctly designated.