Mrs M Topping v Frewco Services Ltd T/a Community Life Choices (in liquidation): 2421043/2017
| Judgment Date | 15 April 2019 |
| Citation | 2421043/2017 |
| Published date | 29 April 2019 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
Case No. 2421043/2017
1
EMPLOYMENT TRIBUNALS
Claimant:
Mrs M Topping
Respondent:
Frewco Services Ltd t/a Community Life Choices (in liquidation)
HELD AT:
Liverpool
ON:
14 February & 29 March 2019.
BEFORE:
MEMBERS:
Employment Judge Shotter
Mrs F Crane
Mrs C Ormshaw
REPRESENTATION:
Claimant:
Respondents:
Written representations
Written representations
JUDGMENT
The unanimous judgment of the Tribunal is as follows: -
1. The claimant was not automatically unfairly dismissed and her claim for
unfair dismissal brought under section 103A of the Employment Rights Act
1996 as amended is not well-founded and is dismissed.
2. The claimant did not suffer a detriment under section 47B or of the
Employment Rights Act 1996 and this claim is dismissed.
3. The claimant did not suffer a detriment under section 23 of the National
Minimum Wage Act 1998 and her claim for detriment is not well-founded
and is dismissed.
4. The claimant was not automatically unfairly dismissed for asserting a
statutory right and her claim brought under section 104(1)(b) of the
Employment Rights Act 1996 is not well-founded and is dismissed,
Case No. 2421043/2017
2
5. The claimant was not automatically unfairly dismissed for proposing to act
enforce her right to a national minimum wage and her claim brought under
section 104A of the Employment Rights Act 1996 is not well-founded and
is dismissed,
6. The claimant’s complaint of unlawful deduction of wages allegedly incurred
in May 2015 is out of time, proceedings were lodged on 15 October 2017
following the ACAS Early Conciliation Certificate issued on 20 September
2017, and the Tribunal does not have the jurisdiction to consider this
complaint, which is dismissed.
REASONS
Preamble
1. By a claim form received on 15 October 2017 following ACAS Early
Conciliation between 4 September 2017 and 20 September 2017, the claimant
brings complaints of automatic unfair dismissal under section 103A of the
Employment Rights Act 1996 as amended (the “ERA”), unfair dismissal for asserting
a statutory right under section 104 of the ERA, and for proposing to take action to
enforce her right to the National Minimum Wage under section 104A of the ERA. The
claimant also brings a claim of detriment under section 47B of the ERA, and for
proposing to take action to enforce the National Minimum Wage under section 23 of
the National Minimum Wages Act 1998.
2. The claimant also complains that she suffered an unlawful deduction of wages
and the respondent was in breach of contract when it allegedly breached the
grievance procedure.
3. The claimant does not have 2-years continuity of employment to bring a
section 98 ERA claim of unfair dismissal and the burden of proof lies on her to prove
she was automatically unfairly dismissed as alleged.
4. In its response the respondent denied the claimant was paid less than the
national minimum wage and as she used a specially adapted vehicle owned by a
commissioning local authority and maintained by the respondent and the local
authority (who also paid for fuel) the claimant incurred no travel expenses. In
addition, when the claimant did incur travel expenses “for any temporary contracts of
services…where the respondent felt the claimant was travelling an unfair distance
from their home address to the temporary place of work” she could claim £0.20 per
mile. There is no issue between the parties that £0.20 per mile was the contractual
rate in relation to mileage expenses, the claimant’s argument was that this should
have bene increased to £0.45 the AA rate.
5. The respondent denied it acted unfairly in imposing a cancellation charge for
non-attendance of training course and maintained it paid employees “out-of-pocket
expenses.” It disputed it had dealt with the claimant’s grievance in an unfair way.
With reference to the new contract the respondent maintained it sought the views of
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