Mr C Carranza v ISS Mediclean Ltd: 2200015/2020
| Judgment Date | 04 January 2021 |
| Citation | 2200015/2020 |
| Published date | 19 March 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number: 2200015/2020 V
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EMPLOYMENT TRIBUNALS
Claimant: Mr C Carranza
Respondent: ISS Mediclean Ltd
Heard at: London Central Employment Tribunal (By video)
On: 3 & 4 September 2020
Before: Employment Judge Quill (sitting alone)
Appearances
For the Claimant: Mr R O’Keefe, trade union representative
For the Respondent: Ms E Grace, counsel
This was a remote hearing with the consent of the parties. The form of remote hearing was [V: video fully
(all remote)]. A face to face hearing was not held because it was not practicable and no -one requested
the same. The documents that I was referred to and the decisions made are described below.
RESERVED JUDGMENT
(1) The complaint of unfair dismissal contrary to section 99 of the Employment Rights
Act 1996 is not well-founded and is dismissed.
(2) The complaint of unfair dismissal contrary to section 98 of the Employment Rights
Act 1996 is not well-founded and is dismissed.
(3) The complaint of breach of contract is dismissed.
REASONS
Introduction
1. The Claimant is a former employee of the Respondent who brings claims of unfair
dismissal and breach of contract.
2. I would like to apologise to both parties for the delay in sending out this judgment
and reasons.
Case Number: 2200015/2020 V
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The Claims
3. Automatic Unfair Dismissal, contrary to sections 94 and 99 of the Employment
Rights Act 1996
4. Unfair Dismissal, contrary to sections 94 and 98 of the Employment Rights Act
1996
5. Breach of Contract - Failure to give (or pay in lieu of) notice
6. Breach of Contract – Holiday Entitlement (Breach of Working Time Regulations is
NOT part of this claim)
The Issues
Automatic Unfair Dismissal
7. Was the Claimant’s mother a dependant within the meaning of Section 57A(3) of
the Employment Rights Act 1996?
8. Did the Claimant take time off for some or all of the period 5 August to 9 August
2019 “to provide assistance on an occasion when a dependant falls ill, gives birth
or is injured or assaulted” [as per Section 57A(1)(a)]? In particular:
8.1 Did the Claimant provide assistance to his mother (on a rota basis with other
siblings) while she was in hospital by washing, cleaning, assisting with toilet,
and then caring for her for several days following her discharge from hospital?
9. If so, was the time off “a reasonable amount of time off during the employee's
working hours in order to take action which was necessary” for that reason.
10. Was the reason (or the principal reason) for the Claimant’s dismissal that the
Claimant had taken time off under section 57A?
Ordinary Unfair Dismissal
11. What was the principal reason for dismissal and was it a potentially fair one in
accordance with sections 98(1) and (2) of the Employment Rights Act 1996
(“ERA”)? The Respondent asserts that it was a reason relating to the Claimant’s
conduct.
12. If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and,
in particular, did the Respondent in all respects act within the so-called ‘band of
reasonable responses’?
Remedy for unfair dismissal
13. If the Claimant was unfairly dismissed (i) should he be reinstated or re-engaged
and (ii) in relation to compensation:
13.1 what adjustment, if any, should be made to any compensatory award to reflect
the possibility that the Claimant would still have been dismissed had a fair and
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reasonable procedure been followed and/or would have left the employment in
time anyway?
13.2 would it be just and equitable to reduce the amount of the Claimant’s basic
award because of any blameworthy or culpable conduct before the dismissal,
pursuant to ERA section 122(2); and if so to what extent?
13.3 did the Claimant, by blameworthy or culpable actions, cause or contribute to
dismissal to any extent; and if so, by what proportion, if at all, would it be just
and equitable to reduce the amount of any compensatory award, pursuant to
ERA section 123(6)?
Breach of Contract – Notice Pay
14. To how much notice was the Claimant entitled, taking into account his contract and
the statutory provisions?
15. Has the Respondent proved that the Claimant fundamentally breached the
contract of employment such that it was entitled to terminate without notice?
Breach of Contract - Holiday Pay
16. Does the Claimant require permission to amend in order to advance the holiday
pay claim on the basis asserted by Mr O’Keefe during the hearing (and in the
schedule of loss sent to the Respondent after Day 1, and before Day 2, of this
hearing)? If so, is permission granted?
17. Is the holiday pay claim a matter which cannot be raised in this claim as a result of
the decisions made in case numbers 2202457/2018 and/or 2208202/2017?
18. Is the holiday pay claim an abuse of process (taking into account the rule in
Henderson v Henderson, and the previous proceedings)?
19. Subject to the above:
19.1 What (if any) were the express terms of the contract in relation to holiday pay?
19.2 What (if any) were the implied terms of the contract in relation to holiday pay?
19.3 In relation to each of the years 2011 to 2017 inclusive, was the Claimant paid
less than his contractual entitlement for holiday pay for that year?
19.4 If so, in each case, is the claim for underpayment in time or out of time?
19.5 Taking account of the above, to what is the Claimant entitled as damages?
The Hearing and the Evidence
20. There was an agreed bundle, submitted electronically in 3 parts, of around 150
pages. During the course of the hearing, around 30 additional pages were
submitted with my agreement.
21. For the reasons which I gave at the time, I was satisfied that I should deal with a
complaint alleging breach of contract, being termination without appropriate notice.
22. In relation to holiday pay, the Respondent’s position was that (a) the claim as
described in the claim form for these proceedings had already been settled (the
settlement having been reached by an exchange of correspondence between
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