Mrs LM Fownes v A Cundell T/a Cut n Curl: 2603869/2020
| Judgment Date | 21 September 2021 |
| Citation | 2603869/2020 |
| Date | 21 September 2021 |
| Published date | 05 October 2021 |
| Court | Employment Tribunal |
| Subject Matter | Working Time Regulations |
Case Number: 2603869/2020
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EMPLOYMENT TRIBUNALS
Claimant: Mrs LM Fownes
Respondent: Allison Cundell trading as Cut n Curl
Heard at: Hybrid hearing By Could Video Platform (CVP) and attended hearing
On: 22 June 2021
Before: Employment Judge Broughton (sitting alone)
Appearances
For the Claimant: Mr McKeown - lay representative
For the Respondent: Ms Smeaton - counsel
RESERVED JUDGMENT
1) The claimant’s claim of unfair dismissal pursuant to section 94 ERA is well founded
and succeeds but is subject to a Polkey deduction.
2) The complaint of automatic unfair dismissal under section 105 and 104 (1)(b) ERA is
not well founded and is dismissed.
3) The claims for breach of contract and /or breach of the Working Time Regulations
1998 in respect of unpaid holiday is well founded and succeeds.
4) The claim for breach of contract in respect of the notice period is well founded and
succeeds.
REASONS
Background and Issues
1. The claim was presented to the employment Tribunal on 20 October 2020. The effective
date of termination of the claimant’s employment was 24 July 2020. There was a period of
Acas early conciliation from 2 September 2020 to 2 October 2020.
The issues
Case Number: 2603869/2020
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2. The respondent had produced a draft list of issues which were discussed with the parties
on the morning of the hearing. Following those discussion, amendments to the issues were
agreed and the final agreed issues were as follows
1. Ordinary unfair dismissal (s.94(1) ERA 1996)
1.1 Was C dismissed for a potentially fair reason? R relies on the potentially fair reason
of redundancy (s.98(2)(c) ERA 1996) and/or some other substantial reason,
namely a business reorganisation.
1.2 In the circumstances (including the size and administrative resources of R’s
undertaking) and taking into account equity and the substantial merits of the case,
did R act reasonably or unreasonably in treating redundancy (and/or some other
substantial reason) as a sufficient reason for dismissing C?
1.3 Did R follow a fair process?
1.4 If the dismissal was procedurally unfair, would C have been dismissed fairly has
fair procedure been followed?
2. Automatic unfair dismissal (unfair selection) (s.105 ERA 1996)
2.1 If the reason (or if more than one, the principal reason) for the dismissal was that C
was redundant, did the circumstances constituting the redundancy apply equally to
one or more other employees in the same undertaking who held positions similar to
that held by C and who have not been dismissed by R. C relies on Jennifer Boyle
as a comparator; if so
2.2 Was the reason or principal reason for which C was selected for dismissal, that she
had alleged R had infringed a relevant statutory right, namely her rights under
TUPE 2006, the Working Time Regulations/Directive and/or the National Minimum
Wage Regulations
3. Automatic unfair dismissal (s.104(1)(b) ERA 1996)
3.1 Was the reason or principal reason for dismissal that C alleged that R had infringed
a relevant statutory right, namely her rights under TUPE 2006, the Working Time
Regulations/Directive and/or the National Minimum Wage Regulations?
4. Unauthorised deductions from wages/breach of contract
4.1 What amount was due to C for holiday pay for the period March 2020 to July 2020?
Case Number: 2603869/2020
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4.2 Has R made an unauthorised deduction from C’s wages and/or breached her
contract in respect of holiday pay and/or was R in breach of the Working Time
Regulations/Directive?
4.3 Did R act in breach of contract by paying C in lieu of notice pay on 24 July 2020?
Evidence
3. The Tribunal was provided with a bundle of documents numbering 153A pages.
4. The claimant and her witness, Ms Diane Roper produced witness statements and were
cross-examined by the respondent.
5. Ms Cundell, the owner of the business Cut n Curl, gave evidence and was cross examined
by the claimant.
Findings of fact
6. The Tribunal has considered all the evidence however, the findings of fact are limited to
those which the Tribunal consider to be relevant to its decision. The findings are made on
a balance of probabilities.
7. The respondent is a small, village hair salon. It is run by the salon owner, Ms Alison
Cundell.
8. The Salon was gifted to Ms Cundell (who had prior to that worked there as a stylist). The
previous owner along with one of the stylists Ms Bishop, had won a sum of money, hence
the very generous gift of the business to Ms Cundell. It is not in dispute that this transfer of
the business was a transfer within the meaning of regulation 3 of the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (TUPE). The transfer took
place in June 2017 (Transfer).
9. Ms Bisho who is a friend of Ms Cundell, continued to provide some support to the
respondent. Ms Bishop provided cover for the claimant when she was on leave and
worked when the Salon was busy. The respondent’s position is that Ms Bishop has never
been employed by her, she volunteered her services to assist Ms Cundell who had never
run a business before. The respondent recruited another stylist, (Sharon) in September
2017.
10. The respondent employed a third stylist Ms Roper, in March 2018; making 3 stylists in total
including Ms Cundell.
11. The claimant was employed prior to the Transfer. Her duties included principally
shampooing the clients and receptionist work, she was also responsible for ancillary tasks
such as making drinks for the clients (although other staff also carried out such tasks from
time to time). She worked 36 hours per week. The claimant has been employed since 2
March 2010 ie pre Transfer. The previous owners of the business had not provided staff
with contracts of employment.
Lockdown – Covid pandemic
12. On 23 March 2020, the Government announced the first lockdown in the UK due to the
Covid pandemic. Shortly prior to the 23 March 2020, Sharon resigned from the respondent
leaving in terms of staff; the claimant, Ms Cundell, Ms Roper and Ms Boyle. The latter was
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