A Pint of Justice: Pub Employee’s Holiday Claim Succeeds
It is essential for employers to understand the legal requirements for employee holiday pay, as demonstrated by a recent tribunal case involving a restaurant supervisor who raised a claim for unpaid holiday.
Background
The claimant, Mr Puttock, had worked full-time at The Freemason’s Arms pub in Clitheroe from 8th March to 25th July 2024. During this time, he did not take any holiday. After leaving this employment, he did not receive any holiday pay, which prompted him to raise a tribunal claim.
Employment Law
The Working Time Regulations stipulate statutory minimum holiday entitlement and explain that employees must receive payment for accrued but untaken holiday following the termination of employment.
Tribunal Proceedings
The claimant attended the tribunal in person and provided evidence including his final payslip. The respondent, Mr White, submitted an ET3 response form to state he resisted the claim, but did not provide further explanation. Employment Judge Dunlop wrote to the respondent to request more information, but there was no reply to this letter.
During the hearing, the claimant explained that Mr White was the company manager and carried out day-to-day operations. The respondent did not attend the hearing.
Outcome
The Tribunal Judge determined that the claimant had accrued 92.4 hours’ holiday entitlement during his employment but this had not been paid. Consequently, the respondent was ordered to make this payment to the claimant, and furthermore the claimant was provided with information on how to enforce the award against the respondent, in the event of non-payment.
Takeaways for Employers
The case is a reminder of the importance of adhering to the Working Time Regulations and ensuring that holiday pay is calculated and paid correctly upon termination of employment.
Bright Contracts includes clear and comprehensive information on holiday pay in our template contracts and other resources, helping employers to comply with these legal requirements. Please contact us to learn more about the support we can offer you.
Avoid being “fundamentally unfair”: the importance of robust disciplinary procedures
A recent Employment Tribunal case highlights the critical importance of following fair and reasonable disciplinary procedures. In the Employment Tribunal decision for Mrs L Murray v Astley House Nursing Home Ltd, the employer’s actions were described as ‘cavalier’ and ‘fundamentally unfair’, resulting in a significant amount of compensation being awarded to the claimant.
Background
Starting in January 2019, the claimant Mrs Murray commenced employment as an Administrator at the Astley House Nursing Home, which was part of the group company Pepperwood Care Limited, of which Ms Chohan is the sole director and shareholder.
In June 2024, Ms Chohan became aware that the claimant had been working overtime hours. She called the claimant to investigate these additional hours. Her PA, Ms Duffy, took notes of the call. Mrs Murray was shocked at the allegations of unauthorised hours. At the end of the call, she was suspended from work and escorted from the building.
Ms Chohan then instructed Ms Duffy to conduct a Disciplinary Hearing, despite the policy requirement for a Home Manager, Director, or Operations Manager. At the Hearing, Mrs Murray explained that her timesheets were processed by Head Office and the additional hours had been approved by her manager, Kirsty Steele.
The claimant was dismissed, with immediate effect, by letter. In Tribunal evidence, Ms Duffy indicated she had not considered a lesser sanction, nor had she considered the claimant’s length of service or clean disciplinary record. There had been no investigation into any of the claimant’s points.
The Appeal was heard by Christine Walsh. The Tribunal noted, ‘Ms Walsh regarded the requirement to deal with the appeal as an imposition’ and had the view ‘she had no power to carry out any investigations’. In one telling example, Mrs Murray asked about the authorisation of her hours, and Ms Walsh replied, ‘I cannot give any information on why you feel this query has not been answered.’ Following the unsuccessful appeal, Mrs Murray raised Employment Tribunal claims.
Findings
The Tribunal found Mrs Murray to be a credible and reliable witness. It appeared that Ms Chohan had been unhappy with the overtime, but these hours had been approved and processed by Head Office. There was no evidence that the claimant had been dishonest or disobedient.
The respondent’s solicitor made brief submissions, including the argument that the respondent ‘could have appeared weak’ if they hadn’t dismissed the claimant. The solicitor conceded there had been deviation from the disciplinary procedure and a lack of compliance with the Acas Code of Practice.
The Tribunal concluded that ‘the respondent failed to follow a fair procedure at every stage of the process’. Mrs Murray’s claims of Unfair Dismissal and Wrongful Dismissal were both successful. Her claim of Unlawful Deductions from wages was also upheld. In total, the respondent was ordered to pay over £27,000 to Mrs Murray.
Takeaways for Employers
This case underscores the critical importance of adhering to fair and reasonable disciplinary procedures. The financial consequences of unfair procedures can be substantial, and Employment Tribunal claims may lead to significant reputational damage.
Bright Contracts offers comprehensive resources, including a Disciplinary Policy aligned with Acas guidance, to support employers and help ensure procedures are fair and legally compliant. Please contact us to learn more about the support we can offer you.
Paws for Thought: Employee Wins Claim for Dog Food Expenses
In a recent Employment Tribunal case, a claimant succeeded in his claim for unpaid expenses, including the unusual expense of dog food. The case is a reminder of the importance of having a clear and comprehensive policy on business expenses, and responding reasonably to queries about expenses.
Claimant Mr Kamran Bashir succeeded in his Employment Tribunal claims for non-payment of wages, unpaid fuel expenses, unpaid annual leave, and dog food expenses for Lucky the German Shepherd.
It might be unusual to see a Tribunal claim relating to dog food, but the respondent was Alpha K9 Services, and their personnel work alongside ‘canine partners’ to deliver security solutions. Mr Bashir’s claim detailed expenses for Lucky’s dog food across a period of five months, for a total of £408. Together with unpaid fuel expenses, wages, and annual leave, the total compensation awarded was over £6,000.
Takeaways for Employers
Ensuring that employees are fairly reimbursed for expenses builds trust, contributes to efficient operations, and reduces the risk of legal disputes. It is important to review your procedure on expenses and ensure it is meeting the needs of your business.
Bright Contracts clients have access to over one hundred carefully reviewed employment policies and additional resources, including a trustworthy and thorough Expenses Policy which can be tailored to individual requirements.
The Most Expensive Sandwich in HR History?
Potentially the most expensive sandwich in HR history… was it filled with foie gras? Were there layers of lobster? Absolutely covered in caviar?
Well, no. It was a plain, ordinary sandwich by all accounts, coming well under the expenses limit. Yet this sandwich was integral to a Senior Banker’s dismissal (Szabolcs Fekete v Citibank NA 2023).
Fekete, a Senior Banker, put two sandwiches, two pasta dishes, and two drinks, on his lunch expenses during a work trip.
The quantity was suspicious, so he was questioned about this rather substantial lunch. Fekete responded to say the items were all for him and they were well within his expenses limit. He was hungry after skipping breakfast, the drinks were small, and the second sandwich was for his dinner. He asked why he was being put under scrutiny. However, the investigation continued, and Fekete later admitted some items were consumed by his partner, in breach of his employer’s Expenses policy. The Disciplinary procedure concluded with his dismissal.
Fekete then raised an Unfair Dismissal claim. He argued the sanction was unfairly harsh and had not sufficiently considered that he had been going through personal difficulties at the time. However, he lost the case as the Judge decided the dismissal was a reasonable response. The Judge’s conclusions emphasised that as a global financial institution, it was reasonable for Citibank to have high standards for honesty and ethical conduct.
If the Disciplinary Policy had been unreasonable, the case could have ended differently of course!
Bright Contracts clients have access to a comprehensive Employee Handbook, including a template Disciplinary Policy. Please contact us if you would like more information.
No More Excuses! Consequences of Not Providing Employment Documents
Excuses, excuses, excuses… there are many reasons why employers fail to provide legally required documents to employees. Unfortunately for employers who have failed in these responsibilities, excuses will not protect them from consequences including financial penalties and reputational damage.
In Cartmill v Always Transport and Others, the claimant Ian Cartmill explained he had not been issued with a written statement of his employment terms and conditions despite working as a Lorry Driver at Always Transport for over three years. On behalf of the respondent, Jean Murray admitted she had not completed this document as his ‘four days on and four days off’ shift pattern made it more difficult.
The Tribunal Judge stated that Ms Murray’s belief in the difficulty of completing the statement was ‘no real excuse’ and confirmed that Cartmill’s claim succeeded. Given the importance of drivers to the business, and ‘the absence of a credible reason’ for not providing the written statement, the Judge ordered an award of four weeks’ pay.
Likewise, in Mrs A Yeates v GT Plumbing & Heating Ltd, the respondent admitted there was ‘a lack of comprehension’ around HR practice. When the claimant Mrs Yeates joined the small business as a Showroom Manager/Designer, there was no employee handbook, and she did not sign an employment contract. Due to the failure to provide the written terms of employment, the Tribunal Judge ordered the respondent to pay the claimant the sum of £480.
Takeaways for Employers
It is essential to comply with the legal requirement to provide employees with written terms and conditions of employment within the required time limits. Excuses about difficulty or lack of understanding were not accepted in these tribunal cases.
Bright Contracts clients can quickly and easily create legally compliant terms and conditions of employment using the step-by-step instructions in our software.
Bright Contracts also provides a ready to go Employee Handbook which clients can tailor to their requirements. Policies and procedures are reviewed and updated in line with employment law changes and recommended practices.
Award for Upset and Hurt: Case Law Example
Individuals who bring successful discrimination claims are entitled to be compensated for the upset and hurt they have suffered by way of an injury to feelings award. These awards are separate from, and in addition to, compensatory awards for financial loss which are uncapped.
Awards for injury to feelings have been increased for all claims presented on or after 6 April 2023 and are now over double the original rates.
The new bands are as follows:
| Lower band - suitable for one-off and isolated incidents which are considered to be less serious. | £1,100 - £11,200 |
| Middle band - suitable for cases that do not merit an award in the upper band. | £11,200 - £33,700 |
| Upper band - suitable only in the m sot serious cases which was where there has been a lengthy campaign of harassment. | £33,700 - £56,200 with the most exceptional cases capable of exceeding £56,200. |
It is worth remembering that a claimant does not need to prove that they have suffered any ill health or produce medical evidence in order to get an injury to feelings award – although if they do, they may get a higher figure.
The tribunal will consider the extent to which the victim of discrimination has had their feelings injured and will attribute a financial value to that injury. Awards in the upper band are rare and most awards are in the upper lower and middle bands.
Case Law Example:
Mrs. Messum, a qualified executive HR assistant at Bradford, faced discrimination and mistreatment after becoming pregnant. Despite her qualifications, her boss started assigning her physically, unrelated demanding tasks. She was signed off due to pregnancy-related issues and during sick leave, was asked to attend an urgent investigatory meeting. When she could not attend due to illness, her maternity leave was initiated. Later, she was asked to attend the meeting again, in her own home with an 8-week-old baby and if she did not attend there may be disciplinary action.
After she returned to work, she attended the investigatory meeting, during which she was accused of stealing food from the canteen. She said that her manager had given permission for her to take food home when she had worked late and did not have time to take a break. Despite her explanations, she received a verbal warning and her job duties were changed. Her HR duties were taken off her and she was instead asked to process sales orders and, later on, to do housekeeping duties - including laundry. She resigned, claiming unfair dismissal, pregnancy/maternity discrimination, and harassment.
The tribunal ruled:
- Unfair dismissal: Company actions breached trust, mishandling investigations and changing her role fundamentally.
- Pregnancy/maternity discrimination: Demoting her and changing her role was unfavourable treatment due to her condition.
- Harassment: Repeated unwanted contact during her pregnancy and maternity period was deemed harassment.
The tribunal awarded Mrs Messum £18,000 for injury to feelings, an additional ACAS uplift of 25% (because the employer had not followed the Acas Code of Practice) plus interest amounting to £28,000.
This case underscores persistent issues with pregnancy and maternity discrimination, with a significant percentage of mothers facing mistreatment or job loss. Legal protections exist, but many employers still fall short. It's vital for employers to understand their obligations and treat pregnant employees fairly.
Age discrimination case against Asda
In the case of Hutchinson v Asda stores, Joan Hutchinson was employed as a shop floor assistant within the George clothing department. She worked 25.3 hours a week and enjoyed her role. As part of her role, she stripped deliveries, merchandised on the shop floor, followed planograms for new layouts and delivered excellent customer service.
Her son noticed that his mother was showing symptoms of dementia. During the Summer of 2019, he noticed that her driving skills were impaired when she drove the wrong way around the roundabout. She gave up driving in March 2020 and began travelling to work by bus. She accepted that her dementia was getting worse when she had to walk to work after being unable to find the bus stop. The staff at her branch in Deeside, North Wales, noticed her slowing down at work, becoming flustered and losing her personal belongings.
The tribunal heard that while Ms Hutchinson was shielding in 2020, Ms Weston-Laing went to her home to bring her shopping. The claimant returned to work on the 9th of July 2020, and throughout the course of the day, Weston-Laing was concerned about her performance and needed to be reminded of social distancing.
On her return to work, a colleague looked in her bag when she could not find her keys and bus pass, which violated her dignity. The next day she arrived to work an hour early, as she had the previous day due to revised bus times, but this was seen as another indication of her confusion.
Weston-Laing and another colleague decided to hold a meeting to see if there was anything that the store could do to support her. The claimant became upset and aggressive saying that she did not need help and that if she did, she would ask for it. She was also asked to speak to occupational health and said, “I cannot do my job, I will leave.” She then walked out and did not return to work after being signed off sick.
She resigned in September 2020 after she felt like she was being pushed out of the business and too old to be there.
Mrs Hutchinson won her claims of age and disability discrimination as well as constructive dismissal.
Employers need to be aware that even well-meaning comments and actions can be held to amount to discrimination or even harassment on the ground of disability and age. Asking older employees if they would like to retire is risky and can make them feel unwanted and upset.
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Tribunal Case: Refusal to get Vaccinated
In the Allette v Scarsdale Grange Nursing Home Ltd, an employment tribunal held that a care home worker was fairly dismissed when she refused to get the vaccination against Covid-19.
Background
Ms Allette worked in a nursing home that provides residential care for people with dementia. In December 2020, staff were encouraged to have their Covid-19 vaccinations to protect their staff and residents. By the middle of January 2021, the nursing home changed their approach and required that staff had to be vaccinated to continue their employment. There had been a Covid-19 outbreak in the nursing home which resulted in the deaths of multiple residents. There was nothing in Ms Allette’s contract of employment that required her to be vaccinated nor was there anything in the nursing homes disciplinary procedure about the termination of employment due to the refusal to get the vaccine.
By the middle of January 2021, it was now made mandatory for staff in the nursing home to be vaccinated, and there was a risk of disciplinary action if she refused to get vaccinated. Ms Allette did not want to be vaccinated as she was concerned over the safety of the vaccine. She was dismissed from the workplace for gross misconduct at the start of February 2021. Her Rastafarian beliefs include being opposed to any form of non-natural medication was reason for her refusal. Her appeal against the dismissal was unsuccessful.
Tribunal Claim
Ms Allette brought claims to the employment tribunal (ET) that her dismissal was unfair due to the right to respect her private life under the European Convention on Human Rights. She also argued that the dismissal was wrongful as it was in breach of the contract.
Employment Tribunal Decision
In relation to Ms Allette’s unfair dismissal claim the ET acknowledged that the employer could have:
• Given her more opportunities to change her mind
• Placed her on unpaid or paid leave
• Sought further scientific information or material to persuade her that the vaccine was safe and necessary.
The tribunal refused to conclude that no employer would have responded the same as the care home did in the circumstances of this case.
They accepted that the nursing home cannot be in direct breach of Act.8 (on the right to respect for private life) of the European Convention on Human Rights because it is not a public authority. The tribunal went on to conclude that the employer's interference in Ms Allette's private life was justified in this case. The tribunal had to consider the balance between her right to a private life and this small employer's legal and moral obligation to protect its vulnerable residents.
When rejecting Ms Allette’s wrongful dismissal claim the ET accepted that the rights of the residents, staff members and visitors outweighed the impact that the requirement to be vaccinated had on Ms Allette.
In relation to her wrongful dismissal claim the ET accepted that there was nothing in her contract that required her to have the vaccine. However, the ET accepted that the nursing homes instructions to their employees that you had to be vaccinated to remain employed was within reason due to the:
• state of the COVID-19 pandemic nationally at that time
• consequences of the care home's outbreak
• advice on the virus and vaccination from public health authorities in England.
The ET found that there was mistrust between Ms Allette and the nursing home’s management team on what she was being told about the safety of the vaccine. According to the tribunal her decision was not made by any religious beliefs and the reason for her not to get vaccinated was unreasonable.
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Covid-19: The Most Recent Tribunal Cases
There is no doubt that there is a rise in tribunal cases, recent cases include the refusal of returning to the office in fear of catching the virus. It is important as an employer to understand what employees are entitled to and understanding that there is still a fear surrounding Covid-19
Two of the most recent tribunal cases, Moore v Ecoscape UK Ltd and Lewis v The Benriach Distillery Company Limited discuss the claims and outline the decision that the employment tribunal (ET) came to.
Moore v Ecoscape UK Ltd
Ecoscape required Moore to return to working from the office. Moore sought to rely on section one hundred of the Employment Rights Act 1996, to which a dismissal is automatically unfair where an employee believes that they are in ‘serious and imminent danger’ if they leave or refuse to attend the workplace while the danger persists.
Ecoscape conducted various Covid risk assessments and adjusted the office and sanitisation procedures. They also provided Moore with a separate working space with her own equipment to address the concerns that she had. She was still reluctant to return and asked if she could work from home. Based on the nature of her work, the employer refused this request as she deals with deliveries and customers. She raised a grievance and a grievance appeal, but both were unsuccessful. She resigned and brought a claim for constructive unfair dismissal.
The ET found that the claimant’s Covid concerns related to a general fear about leaving the home and not about the employer’s workplace. She failed to involve herself with the discussions with Ecoscape about the measures they implemented and refused to visit the workplace to review those measures.
The ET concluded that Ecoscape had taken appropriate steps to accommodate the concerns of the claimant and that they failed to explore any compromises proposed by Ecoscape. In a result the claimant’s claim failed.
Lewis v The Benriach Distillery Company Limited
Mr Lewis was a forklift driver for a whisky distillery. He served 23 years of good service and was dismissed without notice for attending work when his son informed him of having symptoms of Covid-19 and had booked a Covid test. Lewis did not believe his son’s symptoms (a cough and loss of smell) were genuine. He thought his son was faking his symptoms so he could get off work.
At the time the Scottish government’s guidance required anyone who lived with someone displaying symptoms to isolate. His sons test came back positive the next day and Lewis was dismissed for gross misconduct.
An ET found that Lewis’ dismissal was unfair. There was nothing in the government’s guidance that would require someone to self-isolate if Lewis genuinely believed that his son was not in fact displaying Covid symptoms.
While assessing the case, the employer should have taken into consideration:
his 23 years of good service
his record of compliance with Covid guidance; and
that there was no advantage to him in attending work or disadvantage in not attending work – he would be paid in either case.
The ET found that there was some contributory fault from Lewis so reduced his financial awards by 25%.
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Don't Get Caught Out: Discrimination Case Law
We are all aware of how it is against the law to treat someone less favourably due to their gender, race, religion, age etc, but this does not mean that discrimination does not still occur in the workplace. In a recent case, the Employment Tribunal (ET) ruled in favour of an employee who was discriminated against when she was dismissed while on maternity leave for refusing to accept a lesser role with a £20,000 pay cut.
The claimant claimed that when she informed her colleagues of her pregnancy, she was asked how the pregnancy would affect her long-term career goals and the all-male executive team subjected her to "offensive and humiliating" comments, announcing they should "put a wager" on how much weight she would gain during her pregnancy.
During her maternity leave the company went through a restructure which included the dismissal of several executives. The new chief executive excluded the claimant in the restructuring and the claimant discovered from HR that she was no longer on the company email distribution lists or on the new organisational chart and was at risk of redundancy. In response, the company sought to offer her a revised job description for the director of marketing role which was a lower-level role than marketing director and also involved a £20,000 pay reduction. The claimant refused the role and was subsequently made redundant by the company.
The ET upheld her claims of unfair dismissal and maternity discrimination as there was a stark difference in the treatment the claimant received compared to her male colleagues, with the only explanation being due to the fact that she was on maternity leave. The tribunal found that not only was the job description offered to the claimant copied from other websites but also that no such role existed and the retained executives did not have their salaries reduced in order to stay with the company.
Although, a claim of harassment on grounds of pregnancy and maternity cannot be brought under the Equality Act, the ET concluded that the claimant was subjected to a “humiliating and degrading environment” when her colleagues placed a bet on how much weight she would gain during her pregnancy and that this amounted to direct discrimination and the ET awarded her £25,000 plus £5,000 in interest for injury to feelings.
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