Ms S McDonald v Coffee at the Fells Ltd (SC715885): 8000632/2024
JUDGMENT
The judgment of the Employment Tribunal is that:(1) the respondent unfairly dismissed the claimant;(2) the respondent is ordered to pay to the claimant the monetary award of £312.55. The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 do not apply.(3) the respondent is in breach of its duty to provide the claimant with a written statement of employment particulars. The claimant is award the minimum of two weeks’ pay that is £704.40.REASONS
[1]The claimant complains that the respondent unfairly dismissed her on 16 April 2024. She also complains that the respondent breached the contract by failing to give notice or instead make payment of the full amount to which she was entitled. The claimant also says that the respondent did not provide a written statement of particulars of employment.[2]The respondent admits that the claimant was dismissed and says that the reason was gross misconduct. The respondent denies that the claimant was unfairly dismissed. The respondent says that on termination of employment the claimant was paid more than she was entitled. The respondent also contested the claimant had not been provided with written particulars.[3]For the respondent, I heard evidence from Aileen Ledgerwood, director and part owner of the respondent; Sophie Hanley, employee; and Cindi Patrick, employee. The claimant gave evidence on her own account. The parties also prepared a joint file of documents to which the witnesses were referred.[4]I have set out the facts as found that are essential to the reasons or to an understanding of the important parts of evidence. I have dealt with the points made by the parties in submissions whilst setting out the facts, the law and the application of the law to those facts. Findings in fact[5]Around December 2019, the claimant commenced part-time employment at The Fells Coffee House (the Fells), an independent coffee shop in Milton of Campsie. Around August 2020, following a long absence from working, Aileen Ledgerwood started working part-time at the Fells. In late 2021, Cindi Patrick commenced working at the Fells as a chef. It is a small close working environment. None was issued with a written statement of particulars of employment. Staff procedures were issued primarily dealing with opening and closing guidelines, uniform and breaks.[6]The owner of the Fells decided to sell the business. It had been Mrs Ledgerwood’s ambition to own a coffee shop. She had no previous experience in either running a business or people management.[7]In November 2021, Mrs Ledgerwood and her husband, Gary Ledgerwood incorporated the respondent. They are directors and shareholders of the respondent company. The business was sold to the respondent and the existing employees, including Mrs Ledgerwood, became the respondent’s employees. Mr Ledgerwood has no day to day involvement in the business.[8]Given her inexperience and on the advice of the previous owner, Mrs Ledgerwood promoted the claimant to team leader with an increase in pay. Mrs Ledgerwood continued working in the business. Mrs Ledgewood and the claimant usually worked different shifts. The claimant was involved in training new employees. Given the size of the premises and the business, everyone “mucked in”. Most of the employees worked part time. Some worked more regular days and hours than others. The number of employees, including those employed casually, varied between eight and ten. None were issued with written terms and conditions of employment by the respondent.[9]Around February 2022, Mrs Ledgerwood sent an email to employees attaching a copy of updated staff procedures. The document provided information in relation to breaks and food, opening and closing times and guidelines, uniform, and holiday pay.[10]Mrs Ledgerwood and the claimant had a reasonable working relationship. They rarely worked on the same shifts. Mrs Ledgerwood sometimes came into the Fells when not on shift to deal with business matters, such as dropping off towels. The claimant was aware that Mrs Ledgerwood avoided confrontation.[11]From around August 2022, Mrs Ledgerwood started keeping a record of the various occasions when the claimant sought last minute changes to her shifts for personal reasons. On these occasions, Mrs Ledgerwood noted and agreed to the changes which she often required to cover at short notice.[12]From around June 2023, Mrs Ledgerwood began to record incidents where the claimant’s behaviour was inappropriate while on shift. These incidents were reported through customer complaints, employees expressing concerns, and Mrs Ledgerwood witnessing matters.[13]In late 2023, Mrs Ledgerwood spoke to the claimant regarding behaviour, which the claimant found amusing, but was not appreciated by colleagues and which was not suitable for the workplace. The claimant agreed that she would “tone it down”. The employee who had raised concerns felt ostracised by the claimant following the incident and became reluctant to raise any matters because of what she felt were the consequences of so doing.[14]Mrs Ledgerwood became increasingly concerned about the impact that the claimant’s behaviour was having on her colleagues and the consequent stress that this was placing on Mrs Ledgerwood.[15]In March 2024, there was a poor customer rating on the website which prompted Mrs Ledgerwood to look at the CCTV. From the angle, she thought that an employee (other than the claimant) had failed to serve customers resulting in them leaving and complaining. She raised this with the claimant. The claimant did not advise Mrs Ledgerwood, that it was she who was front of house at the time of the incident. The other employee was held responsible. When it came to light that it was the claimant on the CCTV footage the claimant did not apologise to Mrs Ledgerwood or the employee.[16]In early April 2024, while the claimant was on leave, two employees separately raised concerns with Mrs Ledgerwood about the claimant’s commitment and her over delegation of work. It was perceived that the claimant was taking advantage of the role of team leader and the atmosphere was becomingly increasingly strained. There was also concern from another employee regarding the claimant’s management style.[17]The following week while on leave Mrs Ledgerwood decided that she needed to meet with the claimant to discuss these concerns. Mrs Ledgerwood was apprehensive about doing so, but felt the employees were stressed, and if matters went unresolved they would leave. She reflected that the issue of delegation might be solved if the claimant did not have the title team leader and everyone on shift was expected to share the workload evenly. Mrs Ledgerwood prepared a note for a proposed meeting with the claimant on 16 April 2024. Whilst Mrs Ledgerwood expected that this meeting would be challenging, given previous discussions with the claimant, she was optimistic that it would clear the air and that everyone would move forward.[18]On 15 April 2024, the claimant sent a message to Mrs Ledgerwood asking her to meet at the end of the shift to discuss an employee. At the meeting, which lasted around 20 minutes, the claimant advised Mrs Ledgerwood about the circumstances leading to the employee leaving the shift in tears. The claimant wanted the employee’s employment terminated. Mrs Ledgerwood read from her preprepared notes. She told the claimant about the concerns of other employees over delegation of work, corners being cut, and standards slipping. The claimant was shocked and wanted examples. There was reference to the failure to take responsibility for the one star review, the negative conversations, and topics of some of the discussions at work. Mrs Ledgerwood said that going forward, there needed to be a more positive attitude towards other staff, her role, and willingness to share more work evenly. She said that the best way forward was to remove the title of team leader to create a more equal team environment where no one felt undermined. She suggested that they meet again in two weeks’ time to discuss progress. Mrs Ledgerwood said that she was not blind to all the positive things that the claimant did, but the concerns needed to be addressed. The claimant would not be given a pay increase at this time. The claimant was upset and said it was the worst thing that Mrs Ledgerwood could do and left the premises.[19]Later that evening, the claimant sent a text to a colleague, Ms Hanley asking for “a chat”. Ms Hanley was anxious about having a discussion and replied that she could do not “chat” at that time. She advised Mrs Ledgerwood that the claimant had tried to make contact.[20]Mrs Ledgerwood anticipated that the claimant may message the next morning to say that she was unable to work the shift. Mrs Ledgerwood therefore went to the Fells. Ms Hanley and Ms Partick were also working. They were apprehensive about how the claimant would behave. The claimant was anxious about going to work. She was still upset and angry with Mrs Ledgerwood. On arrival the claimant said good morning. Mrs Ledgerwood did not hear her. She asked the claimant if she was going to be okay today. The claimant responded, “What does that even mean?” Mrs Ledgerwood indicated that the claimant appeared upset and she did not want any confrontation with the other staff on shift about what had been discussed. The claimant said that Mrs Ledgerwood had her head in a freezer when she spoke to the other members of staff. The claimant then said to other members of staff, “Did I say good morning to you? Did I?” The claimant then asked repeatedly whether Mrs Ledgerwood wanted her to leave. Mrs Ledgerwood asked if she could speak, the claimant replied, “Let you speak, all you’ve done for the last two years is fucking speak and it’s all bullshit.” Mrs Ledgerwood was shaking. The claimant was hostile and disrespectful to Mrs Ledgerwood who said that if that was the way the claimant felt, she should leave. The claimant collected her belongings and left.[21]Mrs Ledgerwood contacted Mr Ledgerwood and told him what had happened. She reassured Ms Patrick and Ms Hanley. Mrs Ledgerwood then covered the shift that the claimant had been scheduled to work.[22]Later that morning, Mrs Ledgerwood realised that the claimant still had keys to the premises. She sent a message to the claimant saying that she was sorry that things had ended the way that they had, and it was not her intention to end on bad terms. Anticipating that it would be difficult to get the keys back, Mrs Ledgerwood offered to pay the claimant until the end of the week. The claimant responded, “So I am sacked? “Are you serious?”. Mrs Ledgerwood felt that from the altercation that had just taken place, it was surprising that was the claimant’s reaction. She responded, “We can’t work together after this morning, so I think that’s for the best.”[23]The claimant did not consider that she acted or behaved in a threatening or inappropriate way. The claimant was not given (nor did she ask for) written reasons for her dismissal or a right of appeal.[24]At the date of termination, the claimant was 28 years of age. She had been continuously employed for a period of four years. Her average gross weekly wage was £352.20. Her net weekly wage was £307.89.[25]The claimant sought advice from CAB and contacted ACAS on 17 April 2024. The early conciliation certificate was issued on 22 April 2024. The claimant found alternative employment on 7 May 2024. The claim form was sent to the Tribunal on 8 May 2024. Observation on witnesses and conflict of evidence[26]I considered that Mrs Ledgerwood gave her evidence in an honest and straightforward manner. She readily accepted that she lacked experience in running a business and the obligations on her as an employer. She was keen to ensure that when the respondent acquired the business existing employees did not feel that there were significant changes to their employment. The situation was compounded by the failure of the previous owner to issue written statement of term and conditions of employment.[27]In relation to the claimant’s evidence, I considered that her evidence was based on her perception of events. My impression was that the claimant had little respect for Mrs Ledgerwood or insight as to how her behaviour might be perceived by, or impact on others. While the claimant referred to the lack of procedures and fairness, this was not a matter that she raised as team leader when she was line managing other employees and seeking to have their employment terminated.[28]There was conflicting evidence about the claimant’s performance and managerial style. Mrs Ledgerwood accepted that she avoided confrontation and was hesitant about raising issues with the claimant. While I appreciated that Ms Patrick and Ms Hanley continued to work for the respondent, I had no doubt that they had concerns about the claimant’s management style which they raised with Mrs Ledgerwood. The claimant considered that she did her job really well and was 100 percent a good team leader. I considered, given the detailed record keeping, that it was highly likely that Mrs Ledgerwood had previously mentioned issues informally to the claimant. Given the claimant’s perception of her management skills, I doubted that the claimant realised her view was not shared by her colleagues. In my view, Mrs Ledgerwood grasped in April 2024, that failure to address the concerns that had been raised would result in her losing employees. While she was apprehensive about the claimant’s response, Mrs Ledgerwood believed that by making the claimant aware of the concerns and proposing “an equal team” going forward she anticipated that matters might resolve themselves.[29]In relation to the 16 April discussion, the claimant admitted to swearing but said that this was a manner in which employees spoke to each other. I found this unconvincing. The claimant denied making the comment that was attributed to her. Given her reaction at the 15 April meeting, and her failed attempt to “chat” with Ms Hanley I accepted that the claimant was anxious about going to work. However, I also felt that she was still upset and angry with Mrs Ledgerwood. I considered that it was more likely than not, that the claimant found Mrs Ledgerwood’s presence and comments frustrating. As the comment reflected the claimant’s view of Mrs Ledgerwood I thought it more likely than not that was what she said.[30]I heard evidence about pre-dismissal conduct of the claimant that came to light after her dismissal. This was in relation to alleged staff discount abuse. The claimant denied this conduct. I was not persuaded by the evidence as there was a lack of clarity about the extent to which Mrs Ledgerwood was aware of and had permitted certain conduct.Deliberations
[31]Firstly I considered the unfair dismissal claim. The respondent admitted dismissing the claimant on 16 April 2024. I referred to section 98 of the Employment Rights Act 1996 (ERA) which deals with the fairness of the dismissal.[32]Under section 98(1), it is for the employer to show the reason (or if there is more than one, the principal reason) for the dismissal, and that it was a potentially fair reason falling within section 98(2).[33]The respondent said that the reason for dismissal was conduct (a potentially fair reason). This is acting in such a nature, whether done in the course of employment or out with it, that reflects on, in some way, the employer and employee relationship. Mrs Ledgerwood confirmed in evidence that she dismissed the claimant because of her comments during the 16 April discussion. Mrs Ledgerwood said that she believed that they were rude, aggressive and undermined her authority in the business. This is why she dismissed the claimant. I concluded that the respondent was successful in establishing that dismissal was for a potentially fair reason.[34]I then considered whether the dismissal was fair or unfair under section 98(4). This involved having regard to the reasons shown by the employer, and 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; and it must be in accordance with equity and the substantial merits of the case.[35]As this was a conduct dismissal, I asked whether the respondent had a genuine belief in the claimant’s guilt. Then, whether the respondent held such a genuine belief on reasonable grounds and after carrying out such a reasonable investigation.[36]I was satisfied that when dismissing the claimant, Mrs Ledgerwood believed in the claimant’s guilt. The comments were made to Mrs Ledgerwood during the 16 April discussion. Mrs Ledgerwood told the claimant that if this was how she felt then it was best that she should leave. The claimant did not retract the comment, apologise, or suggest that Mrs Ledgerwood had misheard. The claimant left the premises. Several hours later, Mrs Ledgerwood messaged the claimant asking her to return keys. The claimant did not apologise at that stage and say that there had been any misunderstanding. Instead, the claimant sought clarification that her employment was being terminated.[37]I then asked if the respondent held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. Mrs Ledgerwood’s belief was based on her recollection of the 16 April discussion. There was no further investigation. There was also no disciplinary process.[38]I did not consider Mrs Ledgerwood’s decision to dismiss the claimant was predetermined. Mrs Ledgerwood spoke to the claimant at the 15 April meeting about concerns that had been raised by fellow employees, how matters should be progressed, and had suggested a review in a fortnight. The claimant did not take this news constructively nor did it appear that she considered going forward that she might approach things differently.[39]While it was understandable that the claimant was disappointed at this outcome, it was subject to review. Had the claimant attended work on 16 April 2024 and had spoken to Mrs Ledgerwood in a civil and reasonable manner, I do not believe that any action would have been taken. The decision to dismiss the claimant appears to have been taken in the heat of the moment during the discussion.[40]I considered whether following a disciplinary process would be utterly futile. Given the circumstances I could understand why on 16 April 2024, Mrs Ledgerwood did not suspend the claimant and invite her to a disciplinary meeting. What was less clear was why there was no opportunity for the claimant to appeal the decision. I appreciated that given the structure of the respondent company that such an appeal would be challenging particularly as Mrs Ledgerwood had telephoned Mr Ledgerwood immediately after the 16 April discussion. I was not convinced that a right of appeal could not have been offered to Mr Ledgerwood. This would have given the claimant time to reflect and an opportunity to provide an explanation for what happened during the 16 April discussion. Mr Ledgerwood could have reviewed what happened in a less heated and objective manner. Accordingly I did not considered that this was an exceptional case where a disciplinary process would be utterly futile. I considered that a reasonable employer would have offered a right of appeal. The dismissal was in my view unfair.[41]I turned to consider remedy. The basic award for unfair dismissal is 4 years of gross weekly wage at £352.20, that is £1,408.80.[42]Turning to the compensatory award, I took a broad brush approach and considered what was just and equitable in the circumstances. The compensatory award is for financial loss and it is not punitive.[43]The claimant sought past loss of two weeks’ wages and loss of statutory rights of £500. I considered that the wages should be calculated on the basis on net weekly wages and not gross as suggested in the schedule of loss, that is £615.78 (2 x £307.89).[44]I was not minded to grant an award of loss of statutory rights. My reasoning is that this award is to compensate the claimant for the time it will take for her to accrue statutory rights. The dismissal was unfair because there was no disciplinary process. I understood how the situation evolved during the 16 April discussion. While I felt that a right of appeal could have been offered I considered that even if a right of appeal had been offered it was likely that the claimant would still have been dismissed.[45]My reasoning was that the claimant admitted swearing at Mrs Ledgerwood. The claimant did not consider that she was acting or behaving in a threatening way or accept that her behaviour was inappropriate or show any insight that she could have acted differently and would do so in the future. To the contrary at the final hearing she criticised Mrs Ledgewood’s conduct during the 16 April discussion and showed no regret about what had happened. If this was the basis upon which the claimant would have approached an appeal hearing, it was in my view difficult to know how it would be possible for the claimant to return to work in such a small environment where the relationship had irretrievably broken.[46]I considered that had the respondent acted fairly there was 80 percent chance that the claimant’s dismissal would not have been overturned. Accordingly I reduced the compensatory award by 80 percent (£492.62) leaving a balance of £123.16.[47]I then considered whether to adjust the compensatory award for failure to comply with the relevant ACAS code. The claim of unfair dismissal raises a matter to which the ACAS code applies. The respondent failed to advise the claimant of the allegation made against her, invite her to a disciplinary meeting at which she could be accompanied, and offer a right of appeal. I considered it just and equitable to award an uplift of 25 percent, that is £30.79. The compensatory award is £153.95 (£123.16 + £30.79).[48]I then turned to consider contributory fault. This can apply to the basic and compensatory awards. It applies if any conduct of the claimant before dismissal was such that it would be just and equitable to reduce the amount of the basic award. For the compensatory award, it is 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 having regard to that finding.[49]I found that the claimant knew that Mrs Ledgerwood avoided confrontation. The claimant was hostile and disrespectful to Mrs Ledgerwood during the 16 April discussion. Mrs Ledgerwood did not intend to dismiss the claimant and would not have done so had the claimant not spoken to her in the manner that she did. I considered that the claimant contributed to her dismissal and the basic and compensatory awards should be reduced by 80 percent. The basic award is reduced by £1,127.04 from £1,408.80 to £281.76. The compensatory award is reduced by £123.16 from £153.95 to £30.79. The total monetary award is £312.55 (£281.76 + £30.79).[50]I did not consider the claim of wrongful dismissal as account was taken of this in the compensatory award.[51]Section 1 of the ERA provides that no later than two months after the beginning of an employee’s employment, the employer must give the employee a written statement of their employment particulars. No later than one month after a change in any of the particulars that are required to be included in the statement, the employer must give the employee a written statement containing particulars of the change.[52]Section 38 of the Employment Act 2002 states that Tribunals must award compensation to an employee where upon a successful claim being made under any of the Tribunal’s jurisdictions listed in schedule 5, if it becomes evident that the employer is in breach of its duty under section 1. The Tribunal must award the “minimum amount” of two weeks’ pay and may, if it considers it just and equitable in the circumstances, award the “higher amount” of four weeks’ pay calculated in accordance with section 220 to 229.[53]The claimant did not receive written particulars of employment when she commenced employment. This was not the responsibility of the respondent. However when the respondent acquired the business a statement should have been issued to that effect. The claimant did not in my view suffer a disadvantage as a result. It was not suggested that the claimant did not request an appeal because she did not know of her entitlement to do so or to whom that should be made. I therefore decided that it was just and equitable to award the minimum of two weeks’ pay that is £704.40 (2 x £352.20). S MacLean