Case of the week

Each week I highlight a case which may be of interest 🤔

Miss C Hind v Hadleys Hairdressing (Burnopfield) Ltd

This case concerns the dismissal of a hairstylist - nothing unusual in that, but the reason I am discussing it this week is because it demonstrates how Rule 21 of the Employment Tribunals Rules of Procedure 2013 is often used to conclude matters in the tribunal.

So, what is Rule 21?

Put simply;

If following the presentation of a claim, a response is not received by the tribunal in time (within 28 days), a Judge is under a duty to decide, if on the availability of the relevant material, he can determine the claims, or claims, before him, and if he can, he should do so.

In this case Hadleys failed to enter an appearance at any stage of the proceedings. We don’t know the reason(s) why. There could be a number of reasons. Sometimes correspondence is wrongly addressed by the tribunal or the wrong address is supplied by the Claimant, sometimes the Respondent just buries their head in the sand and ignores the claim hoping it will go away or perhaps the Respondent knows they are going to lose and are happy to face the consequences of a non-appearance.

Whatever the reason, the Judge heard the case in Hadleys absence and made a decision on liability (blame) and remedy (compensation).

Ms Hind, the Claimant, brought a number of claims:

1. Automatic unfair dismissal because of a TUPE transfer contrary to Regulation 7 of the Transfer of Undertakings (Protection of Employment) Regulations 2006;

2. Failure to consult on a TUPE transfer contrary to Regulations 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006;

3. Unfair dismissal contrary to section 94 of the Employment Rights Act 1996;

4. Breach of contract (failure to pay notice pay) contrary to Article 4 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994;

5. Unauthorised deduction of wages contrary to section 13 of the Employment Rights Act 1996 (failure to pay holiday pay);

6. Unauthorised deduction of wages contrary to section 13 of the Employment Rights Act 1996 (failure to pay wages).

7. Direct sex discrimination contrary to section 13 of the Equality Act 2010

Claims 1, 2 and 6 failed but the remainder were held in the Claimant’s favour.

Given she was only 20 years old, was employed for 15 hours per week (on the minimum wage), and was employed for just under three years, her basic tribunal award was very low. It is worked out on a similar basis to a redundancy payment. She received just £96.75.

She was also awarded sums for the failure to pay notice and holiday of £657.00. For a non-appearance, an employer could probably live with that - it would have cost more in legal fees to defend the case, but the big one is yet to come.

Discrimination

The Judge ordered Hadleys pay £9,000.00 compensation for injury to feelings in respect of the direct sex discrimination. Furthermore, the Judge ordered they pay interest at 8% on the compensation.

But that’s not the end of it because Ms Hind was also awarded compensation for lost earnings of £5,031.00 (52 weeks gross pay) plus interest again of £92.34.

Now it’s really starting to mount up!

The fact that Hadleys failed to follow the ACAS Code of Practice on Disciplinary and Grievance procedures resulted in an uplift of 25% because they failed to hear her grievance over the failure to pay notice and holiday pay. A further £163.48 was added.

In total Hadleys have been ordered to pay £15,433.50

Comment

I’m not saying that if Hadleys had put in a response and turned up for the hearing things would have been any different, but no counter arguments had been put forward in respect of the Claimant mitigating her loss or the degree of injury in the discrimination claim.

The £15k is probably the worst case scenario for Hadleys, so it would certainly have been worth putting in an appearance. Furthermore, as there was a claim in discrimination, that should really have set alarm bells ringing. Ordinary unfair dismissal cases are fairly easy to quantify when assessing economic loss, but discrimination or whistleblowing cases can rack up huge payouts because there is no statutory cap on the amount of compensation a tribunal can award.

As the reasons given by the tribunal are only in respect of liability and remedy and we are not privy to the facts of the case.

I note there are two TUPE claims - claims in respect of the transfer of the business. I suspect at some point the company changed names or set up under a new identity and hoped to avoid liability for any of the above claims. One can only guess, but the lesson here is to always put in a defence, even if it looks futile, as the consequence of a Rule 21 determination can be severe.