In the case of Gunning v Javid Hussain (trading as Swift One Hour Dry Cleaners) ET/3303500/2015 the Employment Tribunal held that Ms Gunning, the Claimant, had been constructively dismissed and discriminated against, and awarded her over £105,000 in compensation.
The facts in Gunning v Javid Hussain (trading as Swift One Hour Dry Cleaners)
Ms Gunning’s employed from 8 September 1999 to 13 July 2015 as a sales assistant at a dry cleaners (whose ownership had been transferred between several owners in that period, culminating in Mr Hussain taking charge of the business in 2011).
Ms Gunning alleged that, after Mr Hussain took over ownership of the business, he refused her rest breaks, refused to allow her to take paid holidays, and refused to provide her with payslips; she also contended that he increased her hours to 48 hours per week, was subjected to an excessive workload, was bullied by being belittled, threatened with dismissal, and Mr Hussain telling her that she was too stupid to get another job. Ms Gunning subsequently alleged that in May 2014 Mr Hussain had increased her hours to 58 hours per week, and that she had become exhausted and depressed as a result.
Matters came to a head on 30 July 2015 when Ms Gunning alleged that Mr Hussain said to her: “I am fed up with you, I’ve had enough of you.” Ms Gunning subsequently resigned from her employment, filed a grievance, and brought claims for (amongst others) constructive unfair dismissal, disability discrimination, failure to pay holiday pay, and unlawful deduction from wages. Mr Hussain resisted the claims, representing himself.
A rather complex case management history ensued, with Mr Hussain failing to comply with a number of orders (most significantly orders that he disclose documents that he intended to rely upon to the Claimant’s solicitors). His response to the claim was therefore struck out.
The decision of the Employment Tribunal in Gunning v Javid Hussain (trading as Swift One Hour Dry Cleaners)
The Employment Tribunal allowed Mr Hussain to make submissions at the Tribunal but not to submit evidence. The Tribunal upheld all of Ms Gunning’s claims.
With regards to her claim for constructive dismissal, the Tribunal found that Mr Hussain’s failure to pay Ms Gunning the national minimum wage, insistence that she worked 58 hours per week, and refusal to allow her to take holiday or rest breaks (amongst others) constituted repudiatory breaches of contract which entitled Ms Hussain to resign.
With regards to her claims for disability discrimination, the Employment Tribunal found that she was disabled (for the purposes of section 6 of the Equality Act 2010), that Mr Hussain had known about her disabilities, and that she had been subjected to discrimination arising from disability (in that Mr Hussain had criticised her limited intellectual ability (a consequence of her disability) and that he had exploited her limited intellectual ability to deprive her of her rights).
The Tribunal also found that Ms Gunning had been harassed on the grounds of her disability by being sworn at, bullied, threatened with dismissal, and told she was too stupid to get another job, and that there had been a failure to pay her the national minimum wage.
The Employment Tribunal awarded Ms Gunning compensation amounting to over £105,000, including:
- A basic award for unfair dismissal: £7,540.00
- Failure to provide written particulars of employment: £754.00
- Loss of earnings during employment (for a discriminatory failure to pay the national minimum wage): £31,014.00
- Loss of earnings after dismissal: £38,843.00
- Compensation for failing to allow Ms Gunning to take rest breaks: £500
- Injury to feelings: £18,150.00
- Interest on the sums: £7,036.44
- Compensation for accrued but untaken holiday: £1,263.00
The Tribunal also recommended that Ms Gunning be provided with a favourable work reference and a letter of apology.
Our solicitors’ view on Gunning v Javid Hussain (trading as Swift One Hour Dry Cleaners)
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case is a salutary reminder to employers that a failure to engage properly with Employment Tribunal directions can have serious consequences, and did in this case. Equally, employers should take care to treat employees with respect and to take account of any disabilities when determining how to treat them.”
The judgment of the Employment Tribunal can be found here