Case 3212808/2020 · Employment Tribunal
Miss R Crawford v Independent People Homecare Services — 2022
- Case reference
- 3212808/2020
- Decision date
- 25 May 2022
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Russell Representation
- Venue
- East London Hearing Centre
Parties
2 namedClaimant
Miss R Crawford
Respondent
Key findings
Tribunal's reasoningThe claimant was employed from 28 August 2020 as a live-in carer on a zero-hours contract with a written average-hours agreement. The tribunal found that the agreement was applied across the respondent's live-in carer workforce and that the claimant was paid £87.20 per shift, but it rejected the respondent's case that 10 hours a day was a reasonable estimate for JP's placement. The tribunal preferred the claimant's evidence about the extent of the work, including repeated night waking, and found that Birdie records did not accurately reflect the time actually worked. On that basis it concluded that the claimant worked about 14 hours a day on average and was underpaid National Minimum Wage, with an additional failure to pay for the full day on 27 October 2020 when she stayed until the incoming carer arrived.
On notice pay, the tribunal found that the claimant resigned on 16 November 2020 but was willing to work her notice period and was later not offered further placements during that period. It held that she was entitled to four weeks' notice pay under the breach of contract claim. The holiday pay claim was withdrawn and therefore dismissed on that basis.
The tribunal rejected the protected disclosure case. It found that the alleged disclosures to Ms Coleman or Ms Rose on 30 September 2020 and 27 October 2020 about PPE, leadership, financial abuse and smoking in the client's home were not made as alleged. The only disclosure accepted was that JP woke during the night and the claimant had not been told of that in advance, but the tribunal held that this did not reasonably tend to show a breach of legal obligation or a health and safety issue and was not a protected disclosure. It therefore dismissed the whistleblowing detriment claim and the automatic unfair dismissal claim under s.103A ERA 1996, and also noted that the claimant did not have two years' continuous service for ordinary unfair dismissal. The constructive unfair dismissal claim also failed for lack of the requisite qualifying service.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unlawful deduction from wages | Succeeded in respect of failure to pay National Minimum Wage during the placements and failure to pay the full day on 27 October 2020. The tribunal found the claimant was working about 14 hours a day on average and that the 10-hour daily average was not a reasonable estimate. | Upheld | — | — |
| Breach of contract | Notice pay claim succeeded. The tribunal held the claimant was entitled to four weeks' notice pay, but the reasons do not quantify a monetary sum. | Upheld | — | — |
| Whistleblowing | Protected disclosure detriment claim failed. The tribunal found the alleged disclosures on 30 September 2020 and 27 October 2020 were not made as alleged, and the 30 September email did not disclose information tending to show a relevant breach or health and safety danger. | Dismissed | — | — |
| Unfair dismissal | Automatic unfair dismissal under s.103A ERA 1996 failed because no protected disclosure was found. The tribunal also said it had no jurisdiction to hear ordinary unfair dismissal because the claimant lacked two years' continuous service. | Dismissed | — | — |
| Constructive dismissal | Constructive unfair dismissal claim failed. The tribunal found the claimant did not have the requisite two years' qualifying service. | Dismissed | — | — |
Legal tests applied
16 references- s.13 ERA 1996
- s.43B ERA 1996
- Williams v Michelle Brown five-stage approach
- Cavendish Munro Professional Risks Management Ltd v Geduld
- Millbank Financial Services Ltd v Crawford
- Chesterton Global Ltd v Nurmohamed
- Simpson v Cantor Fitzgerald Europe
- Fitzmaurice v Luton Irish Forum
- Blackbay Ventures Ltd v Gahir
- s.94 ERA 1996
- s.103A ERA 1996
- s.111(2) ERA 1996
- Employment Tribunals Extension of Jurisdiction Order 1994 article 3
- regulations 49 and 50 of the National Minimum Wage Regulations 2015
- Royal Mencap Society v Tomlinson-Blake
- Walton v Independent Living Organisation Limited
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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