Mrs Jean Prosser v Saunders Bakery, 1603977/2010

Heard at Employment Tribunals Cardiff, 21 and 22 June 2011

Summary of Claims

The Claimant, Mrs Jean Prosser, was dismissed for gross misconduct (making derogatory remarks about the business such as to bring it into disrepute), and appealed against this, claiming the dismissal was unfair. The claims also covered age discrimination, holiday pay (covering a six year period, a total of 113.4 days), and that the Respondents had failed to provide her with a statement of particulars http://employmentlawclinic.com/contracts-of-employment/statement-of-particulars/, the value of the claim being put at approximately £20,000.

The Claimant had been assisted by solicitors throughout the proceedings, but was represented by her daughter at the hearing. The Respondents had dispensed with the services of two previous representatives, and had instructed Employment Law Clinic.

Before instructing Employment Law Clinic, the Respondents had received advice that they should attempt to settle the claim for £14,000, as the case was considered likely to be successful in all claims.

Outcome

 

Holiday Pay

The Claim for holiday pay succeeded only for the final leave year (6.4 days), as the balance of this claim was out of time. Due to the manner in which the Respondent had sought to provide “rolled-up holiday pay” (including a failure to accompany this with payslips clearly identifying the element intended to cover holidays) it was never argued that this hadn’t been paid, but as the Claimant had received advice from a solicitor and nonetheless failed to lodge the appeal for this in time (the deadline for this being 7 April 2010, based on the last occasion a deduction had been made) the claim was successfully argued to be out of time, a point the Tribunal accepted with “great reluctance” (see paragraph 61 of the Judgment), making clear that this was “a lucky escape” (paragraph 63 of the Judgment).

Statement of Particulars

This point could never be defended in its own right, as the Respondent had never issued this document. The claim was therefore upheld, the Respondent ordered to pay the sum of £480 –four weeks’ pay.

Age Discrimination

The Claimant failed to establish a “prima facie” case of age indiscrimination, and this claim therefore failed.

Unfair Dismissal

Due to the way the disciplinary process was conducted – no disciplinary procedure in place at the commencement of this; the same person (Mr Saunders, who himself had been the subject of derogatory remarks by the Claimant) not being an independent decision-maker to conduct both the disciplinary hearing & appeal – the dismissal was found to be unfair.

The Respondent’s lack of employment procedures compliant with employment law certainly contributed to this finding, but equally the Tribunal found that the Claimant had contributed to her own dismissal. The compensatory award was therefore reduced by 100% (nothing awarded) and the basic award reduced by 75% – to £585.

The total amount the Respondents had to pay was £1,257, a lot less than the amounts the Claimant was seeking, and most of which could never be defended due to the failure to provide holiday pay or a statement of particulars.
 

Full Judgment

The full judgment is available here.

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