Miss C Thorley v Mr Christian Donnelly t/a Acute Barbers and 1 other — 2022

Employment Judge R Russell held that the claimant was employed by Christian Donnelly trading as Acute Barbers, not Cathays Barber Shop Limited. Cathays Barber Shop Limited was incorporated after the claimant started work, and there was no evidence of any transfer of employment when it was formed, so the claims against respondent 2 were dismissed.

On the Equality Act claim, the tribunal found that the claimant had a physical impairment of menorrhagia, not endometriosis, at the material time. It accepted that she had heavy periods, but the medical records and her evidence did not show a substantial adverse effect on normal day-to-day activities such as walking, standing, eating, or travelling. The tribunal therefore held that she was not disabled for section 6 purposes and dismissed the section 15 claim.

On unfair dismissal, the tribunal found that the claimant was dismissed on 1 November 2021 by WhatsApp and that the reason in Christian Donnelly's mind was her attendance record, particularly absences he associated with Mondays. That could amount to some other substantial reason, but the dismissal was unfair because there had been no formal warnings, no meeting to discuss the absence, no opportunity for the claimant to explain herself, and no appeal process. The claimant was awarded a basic award of £935.55 and a compensatory award of £1,544.44, made up of £935.55 loss of earnings, £300 for loss of statutory rights, and a 25% ACAS uplift of £308.89.

On wages, the tribunal held that the contractual 15-minute pre-shift period was working time for national minimum wage purposes because the claimant had to be available and perform preparatory tasks. It found an unauthorised deduction from wages, but only awarded arrears from 1 April 2021 because earlier periods were outside the two-year backstop. The deduction award was £331.90. The claimant also succeeded on the written particulars issue: the generic contract did not satisfy section 1 ERA 1996, and the tribunal awarded two weeks' pay of £623.70 under section 38 Employment Act 2002. The total gross sum payable by Christian Donnelly was £3,435.59, and recoupment did not apply.