The claimant was employed as a sales assistant at the respondent store.  This was on a fixed term contract to run from 26th November 2015 to 26 February 2016.  The claimant continued to work with the respondent after this fixed-term contract ended.  In November 2018 there was an allegation that the claimant had arrived at work under the influence of alcohol. As a result, she was suspended on full pay pending an investigation.

By the time of the disciplinary hearing in December 2018, the claimant had been signed off sick due to depression.   The claimant, who suffered from learning difficulties, brought her support worker to the disciplinary meeting.   The support worker detailed how the meeting was one-sided, with the claimant not being given an adequate opportunity to respond to questions as well as not having all of the evidence provided prior to the meeting.  The decision to dismiss the claimant was made after this disciplinary meeting, which the claimant appealed.

The appeal was successful with the Area Manager finding that the claimant’s ongoing health issues and medication may have resulted in slurring as well as the fact that it took 37 days for the outcome letter to be sent, which meant more stress and anxiety on the claimant.  The reinstatement of the claimant was due to be in a different store and she was to receive back-pay. There were repeated issues with the reinstatement with the new store manager who was reluctant to provide a start date or provide any hours.   The back-pay was also not paid at this point.   This led the claimant to bring a claim for unfair dismissal as well as claims in relation to holiday pay, arrears in pay and failure to have itemised pay slips.

The ET found that the claim for unfair dismissal was demonstrated and that there was to be a 25% uplift in compensation considering the failure to follow the Disciplinary and Grievance Procedures (maximum uplift under GB rules).  The Tribunal also awarded a compensatory award to the claimant, despite the fact that she remained signed off on sick.  There were clear issues of arrears of pay and holiday pay, as the respondent only used 8 hours per week for the purposes of calculating holiday pay, rather than the amount actually worked.

Perhaps most interestingly in this case was the finding that there was a failure from the respondent to provide an itemised pay statement due to the failings of an online system that was used by the respondent.  However, the Tribunal (seemingly erroneously) did not provide any compensation for this as there was no ‘specific financial loss attributable’.  Section 12(4) of the Employment Rights Act 1996 (Section 44 of the Employment Rights (NI) Order 1996) states that the Tribunal ‘may’ order the preceding thirteen weeks' unnotified deductions to the claimant.   This is not contingent upon any fixed financial loss.  It was not clear from the judgment whether this was the use of discretion that may be afforded through the use of ‘may’ in the statute or it was a failure to appreciate the particular powers vis-à-vis the failure to provide itemised pay slips.

Practical Lessons

This case demonstrates a litany of errors (seemingly from the respondent and the Tribunal) on how not to comply with employment law.  In terms of the respondent, there was a simple failing of calculating holiday pay based upon the actual hours worked.  Despite the law being over 20 years old on this, there are employers who continue to use contracted hours rather than actual hours worked to calculate holiday pay.   On the issue of itemised pay slips, this should focus the minds of employers who use online systems to ensure that they are fully working and accessible for the employees.  This will require checks to be carried out, as well as following up on issues that may be raised by employees.  This should provide protection from Section 44 of the 1996 Order even though (whether by choice or error) it was not applied in this case.
https://assets.publishing.service.gov.uk/media/5e15c85ae5274a06b74509ae/Ms_S_Cooke_v_Poundland_Limited_-_1600642.2019_-_Written_Reasons.pdf