Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2785/16

 

 

 

CLAIMANT: Laura Shortt

 

 

RESPONDENT: Martin Caldwell

 

 

 

DECISION

 

The decision of the tribunal is that the claimant's claim of automatic unfair dismissal is made out on the basis that the reason for the dismissal was that the claimant had alleged that the employer has infringed a relevant statutory right under Article 135(1)(b). The dismissal was also automatically unfair due to the respondent's failure to follow the statutory dismissal procedure. The respondent also failed to provide the claimant with a copy of her terms and conditions of employment. The tribunal awards the claimant two weeks pay on account of the non provision of particulars of employment, four weeks pay for failure to follow the statutory dismissal procedure and £100 for loss of statutory rights. The total award is £696.40.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Wimpress

 

Members: Mr E Grant

Mr R Hanna

 

Appearances:

 

The claimant was represented by her mother Mrs Shortt.

 

The respondent was self represented.

 

 

 

SOURCES OF EVIDENCE

 

1. The tribunal heard oral evidence from the claimant, the respondent and Mrs Kellie McIlroy. The tribunal received separate bundles of documents from each party . A schedule of loss was also provided by the claimant.

 

THE CLAIM AND THE RESPONSE

 

2. The claimant brought a claim in respect of the termination of her employment in which she alleged that she was dismissed because she was seeking to assert her right to statutory sick pay. The claimant sought compensation only and not reinstatement or re-engagement. The respondent filed a detailed response in which he indicated that he wished to resist all claims after 8 November 2016, set out a detailed history of the matter and provided additional information by which he sought to explain his actions.

 

THE ISSUES

 

3. The main issues were helpfully set out in a Case Management Discussion on 17 February 2017 which recorded that the only remaining claim in the proceedings was a claim for unfair dismissal. The claimant stated that the main reason for her dismissal was that she was asserting her statutory sick pay rights. This was disputed by Mr Caldwell who stated that the claimant was dismissed because she did not attend a grievance meeting. It is also material to note that Mr Caldwell accepted that the claimant was never provided with any finalised version of her written terms and conditions of employment.

 

FACTS

 

4. The essential facts and history as set out in the claim form and the response form were not in dispute. The claimant commenced employment as a waitress at the Speckled Hen, a small family business, on 9 May 2016 and remained employed until 8 November 2016 when her employment was terminated. The claimant's basic terms of employment were explained to her at the outset of her employment. In particular she was advised of her wage rate, her hours of work and the probationary period. The claimant's gross pay was £7.20 per hour and on average that equated to a gross weekly pay of £133.20. Her hours varied and ranged from 14 hours to 26 hours per week. The claimant was not given a written statement of her employment particulars on commencement of employment or within two months of starting her job.

 

5. According to the respondent there were no issues with the claimant initially but that during August 2016 supervisors noticed a change in her attitude. The claimant questioned requests to carry out simple jobs and complained that she felt that she wasn't being treated properly. It was the respondent's impression that she didn't like younger team members telling her what to do. August 2016 was a very quiet month for the business and the claimant also complained about not getting enough hours. In the event the respondent ensured that the claimant was allocated 16 hours work per week. In September the respondent noticed a substantial change in the claimant's attitude. This was drawn to the respondent's attention on two occasions and resulted in an informal warning being given about the claimant's attitude.

 

6. On 18 September 2016 the claimant came in to work but told the duty supervisor that she was sick and wanted to go home. The claimant was told to speak to the manager, Kellie McIlroy, but she didn't do so. Later Ms McIlroy noticed that the claimant was acting in a rather unpleasant manner. She spoke with the claimant who again said that she felt sick and wanted to go home. Ms McIlroy asked the claimant why she had not spoken to her previously having been directed to do so by the duty supervisor. The claimant replied that she didn't think that she would have to go through some sort of hierarchy in this place. The clamant was again warned about her attitude and told to go home.

 

7. Between 22 and 29 September 2016 all members of staff were issued with a new draft contract. They were given the opportunity to read it on the day of receipt before signing it. The claimant declined and said that she wanted to take it home.

 

8. On 23 September 2016 Ms McIlroy had occasion to speak with the claimant again about her attitude. The claimant said that she didn't like the way that Ms McIlroy and other supervisors spoke to her. Ms McIlroy asked the claimant what way she was to speak to her and that she was only asking her to do jobs that everyone else did. The claimant responded that she didn't know whether she could work there anymore. Ms McIlroy replied to the effect that the claimant needed to let her know if she wanted to work there and that she should let Ms McIlroy know by 24 September whether she wanted to continue to work or not so that cover could be arranged. The claimant was next scheduled to work on 25 September. The claimant did not contact Ms McIlroy as requested and instead simply arrived in at work at 3.00 on 25 September. Ms McIlroy had understandably already arranged cover and the duty supervisor explained this to the claimant. The claimant did not take this well and her manner was described as verbally aggressive.

 

9. On 25 September 2016 the claimant sent an email to Ms McIlroy requesting a copy of her contract.

 

10. On 26 September 2016 the claimant submitted an application for statutory sick pay ("SSP") to the respondent by email and post. The form stated that the claimant last worked on 23 September 2016 and that her sickness began on 25 September 2016. The sickness was self certified and was described as stress related migraines. The respondent treated the self certified sickness form as running for 7 days up until 2 October 2016. It is apparent that the respondent entertained doubts as to whether the claimant was genuinely sick having been informed by the duty supervisor that she showed no signs of sickness on 25 September when she turned in for work and made no mention of being sick.

 

11. On the expiry of the claimant's sick line on 2 October the duty supervisor put her on the rota for 4 October. There was no further contact from the claimant and she did not attend for work on 4 October.

 

12. On 7 October 2016 the respondent hand delivered a letter dated 6 October to the claimant and asked her to explain why she had not attended for work on 4 October 2016 or since that date. The respondent went on to say that this implied that she had resigned but that if this was not the case she should contact Kellie McIlroy as a matter of urgency and no later than 9 October 2016. The letter further advised that unauthorised absence was a serious matter that could result in disciplinary action and summary dismissal. A letter of resignation was also requested if appropriate.

 

13. Later on 7 October 2016 the respondent received a sickness certificate completed by a Dr A Thompson on 5 October 2016 in which he signed the claimant off work for two weeks on the basis of a diagnosis of general debility.

 

14. The claimant phoned Ms McIlroy over the weekend of 8/9 October and she explained to the claimant why the letter of 6 October had been sent and pointing out that the sick line didn't cover 3 to 4 October. On 12 October the respondent received a further sick line signed by the claimant's doctor on 10 October 2016 covering the period of 2 to 4 October and again with a diagnosis of general debility.

 

15. On 18 October 2016 the claimant was paid wages and sick pay up until and including 7 October. On the same date the claimant phoned Ms McIlroy and asked when her statutory sick pay would be paid. Ms McIlroy said that she would look into it as she was not responsible for payments. Ms McIlroy spoke with the respondent who advised that he was not yet satisfied with the circumstances surrounding the claim and to leave the matter with him.

 

16. On 20 October 2016 a further sick line was received dated 17 October 2016 once more on the basis of general debility.

 

17. On 23 October 2016 the claimant wrote to the respondent and Ms McIlroy and raised a formal grievance about the failure to pay SSP. She advised them that she would be treating this as an unlawful deduction from her wages.

 

18. On 31 October 2016 the respondent replied and invited the claimant to attend a formal grievance meeting on 7 November 2016. The respondent asked the claimant to bring with her a signed contract of employment as given to her on 23 September 2016.

 

19. Also on 31 October 2016 the claimant submitted a further sick line dated 28 October 2016 which signed her off work for a further two weeks again on the basis of general debility.

 

20. On 4 November 2016 the claimant wrote to the respondent and Ms McIlroy and advised that she was not well enough to attend the meeting on 7 November 2016. The claimant attached a written statement detailing her grievance which read as follows:

 

"I have been on sick leave with continuous certificates since 25/09/16

 

On Friday 30 ^th September, I received £36 for 5 hours for work paid

 

Due Friday 7 ^th Oct 35.38 2 days ssp

 

Due Friday 14 ^th Oct 88.45 1 wk SSP

 

Received £124.45 Tues 18 ^th Oct 2016

 

Due Friday 21 ^st Oct 88.45. 1 wk SSP Not received

Due Friday 29 ^th Oct 88.45. 1 wk SSP Not received

 

Due Friday 4 ^th November 88.45. 1 wk SSP Not received

 

My grievance is that my SSP has not been paid in accordance with the Employment Rights Act 1996 and I seek this to be remedied."

 

21. On 8 November 2016 the respondent sent a substantial letter to the claimant. As we regard this letter and the correspondence that followed as of key importance we have set them out in full. The letter of 8 November 2016 reads as follows -

 

"Dear Laura,

 

Without Prejudice.

 

I refer to your current long-term absence from work. You have been absent since 25 ^th September 2016.

 

It is regrettable you did not take up the opportunity to attend the grievance meeting arranged to discuss the grievance you raised.

 

In my recent registered letter I asked you to return the Businesses contract of employment. The contract determines the Businesses relationship with all employees. I believe that this is the only contract that determines the relationship between you and the Business. It determines your employment rights and your rights, if you qualify thereunder, to sick pay. It sets out the Businesses rights in relation to your employment.

 

I further believe your refusal to return the signed contract indicates your unwillingness to accept the Businesses standard terms of employment which are applicable to all employees and which standard terms cover sickness. No one's employment is deemed continuing without signing the Businesses standard contract. Despite refusing to accept the contract you wish to avail of its terms. In my view your refusal to sign the Businesses standard employment contract precludes you from relying on its benefits. You cannot simply pick and choose which terms you wish to apply to you. This is unacceptable.

 

I am drawn to the view no contract of employment exists between you and the Business since your refusal to sign the contract on 23 ^rd September 2016. Accordingly, you are not entitled to the payments sought. I believe accounts erred in paying you any payment other than your last weekly wage. Technically, I believe the Business is entitled to the return of the payment made to you on 18 ^th October.

 

If at some future date, a third party deems the Businesses contract applies, despite not being signed by you, then under Clause 3 all employees are subject to a probation period. In your case the period is six months extendable by three months at the discretion of the Business. Under sub-clause 3.1 of the Businesses contract the Business has the right "for any reason whatsoever and at its sole discretion" to terminate your employment.

 

Accordingly utilising the Businesses discretion under sub-clause 3.1 I confirm that the business hereby gives you one weeks' notice from the date of this letter of termination of the deemed contract of employment.

 

On this basis and against my better judgement (entirely without prejudice to my contention no contract of employment exists between you and the Business) you are entitled to one week's pay in lieu of notice based on an average of your weekly pay being £133.20p plus three payments of £88.45p and one payment of £50.54. This comes to the sum of £449.09.

 

Please reply irrevocably in writing that the sum is acceptable and is in full and final settlement of any perceived claim you have relating to the Business howsoever arising.

 

Yours sincerely"

 

22. On 11 November 2016 the claimant replied as follows -

 

"With regards to your letter dated 8 ^th November 2016.

 

The grounds for my appeal are as follows:

 

I wish to lodge an appeal on the grounds that I was never given a written contract of employment despite my written request for one.

 

So therefore, I was not in a position to comply with the stipulations that you set out in your letter.

 

I believe that I am rightly due my Statutory Sick Pay as an employee of the business.

 

Enclosed is my current certificate of sickness."

 

The certificate in question was dated 11 November 2016 and signed the claimant off sick from 1 November 2016 to 1 December 2016. The claimant also applied for Employment Support Allowance in mid November 2016.

 

23. On 18 November 2016 the respondent replied as follows-

 

"I acknowledge receipt of your letter dated 11 ^th November 2016.

 

I have no record of any written request by you. Please advise me of the date and send me a copy of the written request. It is my understanding that you have a copy contract but I enclose another copy for your review.

 

I am not sure from the contents of your letter what exactly you wish to appeal or by what means. Please review Appendix 2.

 

Without prejudice if you wish to set up another grievance meeting under "Appendix 2 Grievance Procedure" which is the precursor to any appeal then please let me know as soon as possible.

 

I reaffirm termination of your employment per my letter of 8 ^th November 2016. I advise a final payment of one week's pay in lieu of notice based on an average of your weekly pay being £133.20p plus three payments of SSP £88.45p and one part payment SSP £50.54 to the date of termination is due to you. This comes to the sum of £449.09. This is full and final payment of all sums due to you however arising from your part time employment with The Speckled Hen."

 

24. As indicated in the fourth paragraph of the letter the respondent viewed this matter as a grievance issue and Appendix 2 to the draft contract contained a grievance procedure which included provision for an appeal where an employee felt that the grievance had not been satisfactorily resolved. Appendix 1 contained a disciplinary procedure in which it was explicitly stated that it did not apply to an employee with less than one year's service. Paragraph 3 of the draft contract also made provision for a 6 month probationary period during which time the employer had the right to terminate employment if the employee was found for any reason whatsoever and at the sole discretion of the Business to be incapable of carrying out, or otherwise unsuitable for, the job.

 

25. On 1 December 2016 the claimant submitted her claim form to the Tribunal Office which was subsequently issued to the respondent on 12 December 2016.

 

26. On the same date the claimant submitted a further certificate of sickness for a further 4 week period commencing on that date. Again the diagnosis was general debility.

 

27. On 5 December 2016 the respondent wrote to the claimant. The respondent advised her that nothing had changed as regards the contents of his letter of 18 November and invited her to another grievance meeting which he had set up on 12 December.

 

28. On 8 December 2016 the claimant replied and stated that she would not be able to attend the grievance meeting as she was still not well. The claimant also enclosed an updated grievance statement in which she stated that she had still not received the outstanding SSP.

 

29. On 18 December 2016 the respondent wrote to the claimant and invited her to another grievance meeting which had been arranged on 28 December.

 

30. On 22 December 2016 the claimant replied and again stated that she would not be able to attend the grievance meeting as she was still unwell.

 

31. On 3 January 2017 the respondent wrote to the claimant and asked her to sign a consent form to enable a medical report to be obtained from her doctor. The respondent cited sub-clause 9.5(c) of the contract as authority for this request. The claimant did not reply.

 

32. On 6 January 2017 the respondent filed his response to the tribunal claim. In answer to Question 7.1 "Other information" the respondent replied as follows:

 

"I found myself in a position where I had real doubts about [the claimant's] sick claims. The timing of her sudden sickness on the 25 ^th September. This following on from the weekend's events and another run in with a supervisor over her non communication and her reaction when asked about it. Also her comment to the duty supervisor on the 25 ^th September.

 

Nonetheless I paid her initial sick payments while I gathered in the facts.

 

I found myself facing paying twenty eight weeks SSP or making a stand against her claim. I have twenty one other employees and a small family business to run on a viable basis in a tough economic environment. In the circumstances, as I saw them pertaining, it seemed unfair that such a claim should be accepted without a challenge.

 

Rightly or wrongly it appeared to me she wanted to avail of the 28 weeks payment clause but not accept other terms within the contract given to her. I explained these matters in my correspondence. It felt as if she realised that things were irrevocably breaking down with the supervisors and management and this was an exit option. That's how it felt to me. I can only surmise. I made a judgement call.

 

She was offered the opportunity to attend a grievance meeting on numerous occasion (sic) all of which she declined. Accordingly, I would have been obliged to simply pay her for 28 weeks without any means of addressing the issue directly with her.

 

If the circumstances of her sick claim had played out in a different way she would have been paid her SSP like anyone else. If she had made the effort to come to a grievance meeting the matter could well have been resolved."

 

33. Further correspondence ensued between the parties over the course of the following months concerning payments or overpayments that were made.

 

SUBMISSIONS

 

34. Both parties made brief opening and closing submissions as to their respective cases.

 

THE LAW

35. Article 126 of  the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") sets out the right not to be unfairly dismissed . Article 140 of the 1996 Order provides that Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending on with the effective date of termination. In the present case the key statutory provision is Article 135 of the Order 1996. The requirement under Article 140 of one year's continuous employment is not required if Article 135 applies. Article 135 insofar as relevant provides as follows:

 

" 135 . (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee—

 

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or

 

(b) alleged that the employer had infringed a right of his which is a relevant statutory right.

 

(2) It is immaterial for the purposes of paragraph (1)—

 

(a) whether or not the employee has the right, or

 

(b) whether or not the right has been infringed;

 

but, for that paragraph to apply, the claim to the right and that it has been infringed must be made in good faith.

 

(3) It is sufficient for paragraph (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

 

(4) The following are relevant statutory rights for the purposes of this Article -

 

(a) any right conferred by this Order ......... for which the remedy for its infringement is by way of a complaint or reference to an industrial tribunal..."

 

36. Thus Article 135(1)(b) provides that employees are unfairly dismissed if the reason for the dismissal is that the employee alleged that the employer has infringed a relevant statutory right.  The right to receive statutory sick pay is a relevant statutory right.

 

37.    Article 33 of the Employment Rights (Northern Ireland) Order 1996 requires that where an employee begins employment with an employer the employer shall give to the employee a written statement of particulars of employment not later than two months after the beginning of the employment.

 

38. Under Article 27(3) of The Employment (Northern Ireland) Order 2003, the tribunal has a duty where it makes an award to the employee in respect of the claim to which the proceedings relate (for jurisdictions specified in Schedule 4 which include claims of the type raised by the claimant in these proceedings) and when the proceedings were begun the employer was in breach of his duty to give the employee a written statement of particulars of employment, to increase the award by a minimum of two week's pay (save where there are exceptional circumstances which would make an award or increase unjust or inequitable) and may, if it considers just and equitable in all the circumstances, increase the award by the higher amount instead equal to four week's pay.

 

39.    Article 130A of the 1996 Order is concerned with the procedural fairness of dismissals.  Employees are regarded as unfairly dismissed if the statutory dismissal procedure was not complied with and the failure to comply was attributable to the employer.

 

40. The dispute resolution procedures were introduced by the Employment (Northern Ireland) order 2003.  Article 17 of the 2003 Order provides for adjustment of awards made by industrial tribunals where the claim relates to any of the jurisdictions listed in Schedule 2 of that Order.  Unfair dismissals are included in that Schedule. Where a tribunal finds that a failure to complete the statutory procedure is attributable to failure by the employer, it may increase any award it makes to the employee by between 10% to 50% if the tribunal considers it just and equitable in all the circumstances to do so. This only applies to the compensatory award.

 

41. Article 154(1A) of the 1996 Order is also relevant to compensation and provides as follows:

 

"154. (1A)   Where—

 

(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),

 

(b) an award of compensation falls to be made under Article 146(4), and

 

(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,

 

the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.

 

(1B) An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer."

 

CONCLUSIONS

 

42. The respondent's letter of 8 November 2016 in which he dismissed the claimant from his employment does not set out the reason(s) for dismissal with any degree of coherence. However, it is clear that the respondent was purporting to utilise the wide power contained in Clause 3 of the draft contract to terminate during the claimant's probationary period. It is also clear that the principal motivation was the claimant's pursuit of SSP combined with her long-term absence from work. This much is clear from section 7.1 of the response form in which the respondent referred to making a stand against her claim. There is no suggestion that the claimant's assertion that her right to SSP was not made in good faith.

 

43. The respondent did not make use of the minimum statutory dismissal procedures and when the claimant sought to appeal against the decision to dismiss her he treated this as a grievance. No mention is made of any behavioural issues and although reference is made to the claimant's failure to attend a grievance meeting this is not given as a reason for dismissal. We have considerable sympathy for the respondent who was faced with a disruptive employee who appeared to be making use of her sick pay claim to her own ends and like the respondent we suspect that seeking an exit route and using this issue to her advantage.

 

44. We are therefore satisfied that the claimant was automatically unfairly dismissed on 8 November 2016, pursuant to Article 135(1) (b) of the 1996 Order for seeking to assert her right to SSP and this constitutes automatic unfair dismissal.

 

45. We are further satisfied that when these proceedings were commenced the respondent was in breach of its duty to give the claimant a written statement of employment particulars. Accordingly under Article 27(3) of the 2003 Order, in the absence of evidence of exceptional circumstances before the tribunal, we increase the award to the claimant by an amount equal to two weeks' pay. We do not consider that it would be just and equitable in the circumstances of this case to increase the award to the higher amount equal to four weeks' pay as the claimant was ultimately provided with a draft contract which she did not sign or return to the respondent.

 

46. It is also clear that the respondent failed to follow the required minimum statutory dismissal procedures and this also both renders the dismissal unfair and enables the tribunal to increase the compensation payable to the claimant. The tribunal considers that it is appropriate to make the basic award of four weeks in accordance with Article 154(1A) and (1B) of the 1996 Order and that this does not cause an injustice to the employer.  While there appears to have been issues as to the claimant's conduct during the latter period of her employment it was open to the employer to have taken the appropriate steps to deal with the situation correctly.

 

47. No compensatory award was sought by the claimant. No evidence was provided of any loss between the date of dismissal and the date of hearing. No claim was made in respect of future loss on the basis that the claimant is unable to work due to ill-health which is not related to her employment with the respondent or her dismissal. As a result no compensatory award is payable and therefore a percentage increase under Article 17 of the 2003 Order doers not arise.

 

48. As recorded in the Case Management Discussion the only claim that this tribunal is required to address in these proceedings is a claim for unfair dismissal. However, a number of payments were made by the respondent to the claimant between the date or her dismissal and the hearing. There was some overpayment of SSP (£316.71) but this needs to be offset against outstanding holiday pay of £113.91. This produces a net overpayment of £202.80.

 

AWARD

 

49. Basic Award

 

Nil (less than 1 year's full employment)

 

2 weeks pay for failure to provide employment particulars (£133.20 x 2) = £266.40

 

4 weeks pay for breach of statutory procedures (£133.20 x4) = £532.80

 

Loss of Statutory Rights = £100.00

 

Sub -Total = £899.20

 

Deduct Overpayment = £202.80

 

Total Award = £696.40

 

50. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

Employment Judge:

 

Date and place of hearing: 6 April 2017, Belfast.

 

Date decision recorded in register and issued to parties: