Charlotte Waye v Mr & Mrs Nascimento trading as Bless Salon

IN THE

EMPLOYMENT AND DISCRIMINATION TRIBUNAL IN THE MATTER:

BETWEEN Charlotte Waye

CLAIMANT AND Mr & Mrs Nascimento trading as Bless Salon

RESPONDENT

TRIBUNAL JUDGMENT Reference: [2017]TRE040 & [2017]TRE52 Hearing Date: 31 October 2017 Before: Advocate C R Davies, Deputy Chairman Appearance: For the Claimant: Mrs S Waye For the Respondent: Mr Nascimento THE TRIBUNAL’S JUDGMENT

THE DECISION The Tribunal upholds the Claimant’s claims for unpaid wages in the sum of £512 and £320; The Tribunal upholds the Claimant’s claim for wrongful dismissal in the sum of £295; The Tribunal upholds the Claimant’s claim for holiday pay in the sum of £76; The Tribunal does not uphold the Respondent’s counterclaims and these claims are dismissed.

THE REASONS The Claimant was employed as a hairdresser in the Respondents’ salon for a very short time between January and February 2017. The Claimant was dismissed and the reason given for the dismissal was “insufficient clients to pay you wages”. No procedure was followed by the Respondent and no disciplinary grounds were stated. The termination letter was dated 14th February 2017 and the termination date was given as 18th February 2017. There was a dispute as to whether the Claimant was expected to work her notice period, or whether she was told not to attend the workplace. In any event, no wages were paid for the notice period. On 4th April 2017 the Claimant filed claims for wrongful dismissal, unpaid wages, holiday pay and unauthorised deductions from her wages. Aspects of the claim were defended and on 24th April 2017 the Respondents issued a counterclaim for the sum of £100 in respect of monies that they said the Claimant had wrongfully taken from the till in January 2017. There had been no disciplinary proceedings in connection with this issue, no police complaint or investigation and there was no reference to this wrongful act in the termination letter or the employer’s response to the claim. At the hearing, the Respondents mentioned a further contractual claim for £312 based on the failure to work a notice period. This claim had not been included in the counterclaim

form. I saw the termination letter which stated that the Claimant would be paid for the hours that she had worked plus 39 hours in lieu and 12 days of holiday and that this would be paid in March. At a case management meeting on 27th July 2017 the Respondents accepted that they owed the Claimant unpaid wages of £320 for January 2017 and £512 in respect of February. These sums remain unpaid. The Respondent also accepted a holiday pay claim in the sum of £76, and the Claimant agreed to accept that sum. In October 2017 the Respondents did issue a cheque in the sum of £1,192.80 which was the sum stated on the Claimant’s final pay slip (after the usual deductions). They then stopped the cheque apparently because their counterclaim had not been dealt with. The Tribunal will not reconsider the claims which had already been agreed and so the outstanding issues for this hearing were the Claimant’s claim for wrongful dismissal (it was accepted at the case management meeting that she was entitled to receive a week’s notice and the Claimant claimed a week’s wages) and the respondent’s counterclaim for £100. The Tribunal was not prepared to entertain a further counterclaim by the Respondent that had not been raised previously. The Respondent filed no evidence for the final hearing, but did attend. The Claimant provided a bundle of documents and was represented at the hearing by a family

member who had some personal knowledge of events surrounding the employment. I heard evidence from the Claimant and her representative, and from both Respondents. I summarise below the relevant points from the evidence that I read and heard; and set out what I have found to be the relevant facts: The history of this employment is short. The Respondents had only recently started their business when they hired the Claimant. There were some early problems and on 17 January 2017 the employer contacted the Claimant at the end of the day because the till was short. The Claimant responded by text message with an apology to say that she was not very good at maths and had made some mistakes; effectively in a panic she had charged less to some customers than she should have done. This incident did not lead immediately to dismissal but the Claimant was dismissed a couple of weeks later ostensibly because she did not have enough clients. The Evidence I will limit consideration of the evidence to the claims that remain in issue. The Claimant told me that she had received notice of the termination of her employment by letter dated 14 February 2017, which gave a termination date of 18 February 2017. That is not technically a full week’s notice. The Claimant denied having taken money from the till deliberately. She was the only person working on that floor at the time, and it would have been a

stupid thing to do. She had made a mistake with the payments taken from clients, but this was not deliberate and did not amount to £100, she thought the figure was £22. She had not taken any money for herself. She has immediately accepted her mistake in a text message when she realised the till was down. There had been a meeting to discuss it and the Claimant was told she didn’t have to pay the money back and not to worry about it. But, after that meeting the atmosphere at work became increasingly difficult and she was sacked two weeks later. She was handed a piece of paper and was told to get her things and go, and not to come back. She did not hear anything further. The Claimant felt she had been told to go immediately and advertised herself straight away on Facebook as a freelance hairdresser. She earnt £25 in what would have been her notice period. Mrs Waye told us that the sum missing from the till was closer to £10 than £22. She had been present at the meeting when the problem was discussed. She had picked the Claimant up on the day of her dismissal. He had all of her “kit”, some two bags of hairdressing items. If she had been expected to come back into work, she would not have been told to remove all of her stuff. She confirmed that in the week following her dismissal the Claimant had done one haircut. Mr Nascimento said that he had handed the dismissal letter to the

Claimant without saying anything other than that she should come back to work the following day. He had tried to ring her when she didn’t come to work but there was no answer. She had not taken all her stuff – just her hairdryer. He was sure that £100 was missing from the till but had no documentation available to prove it. He had made no record of the meeting held to discuss the missing money. He said that the Claimant had admitted taking the money for the weekend (this is at odds with the text message sent by the Claimant at the time, explaining that she had made a mistake). Mr Nascimento accepted that there had been no police complaint, no disciplinary process and that the loss of the money had not been mentioned in the termination letter, final payslip or in the employer’s response form. Mrs Nascimento largely supported the evidence of her husband but did say that the Claimant was very upset when she was dismissed and had taken her direr and stuff, including her brushes. Despite having dismissed her because she had insufficient clients, Ms Nascimento said that she had lost a lot of money from work the Claimant would have done during her notice period. In relation to the disputed evidence I find the following facts: In January 2017 the till had been short on an occasion. The Claimant was still getting used to the till and struggled with calculations. I am not persuaded that

she took the money deliberately, or that it amounted to £100. I find that it was an innocent mistake, probably caused by insufficient supervision or training. The Respondent has produced no evidence of the amount and it is notable that this issue was not mentioned in any documentation until the counter claim was filed. I find that the till was down by a small amount on one occasion as a result of innocent errors on the part of the Claimant; I find that the Claimant was dismissed on 14th February 2017 and that she was told not to work her notice period, to leave immediately and to take her belongings. I accept the evidence of the claimant and her mother that she had all of her stuff with her when she left the salon that day. This supports her version of events. She advertised for work immediately, this was a prudent thing to do as she felt she had lost her job with immediate effect. I find that the Claimant did earn the sum of £25 during her notice period which must be deducted from any damages claim. In light of the above findings I dismiss the counterclaim and find that the Claimant is entitled to a weeks’ pay in respect of notice, less £25. This is in addition to the claims admitted by the Respondents at the case management meeting in July 2017. The Respondent must pay the following to the Claimant: unpaid wages in the sum of £512 and £320; damages for wrongful dismissal in the sum of £295; and The Tribunal upholds the Claimant’s claim for holiday pay in the sum of £76 This amounts to a total of £1,203. Signed: Dated: Advocate C R Davies