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Disabled Finance Manager wins unfair dismissal claim against former spouse at Employment Tribunal. Appeal Tribunal determines an individual employee cannot be named or held liable for unfair dismissal
In the case of Astha Limited & Ms Chakraborty v Grewal 2023 EAT it was held that an Award for unfair dismissal made under the Employment Rights Act 1996 and a failure to issue written particulars of employment under the Employment Act 2002 can only be made against the employer and not against an individual employee.
Background
Mr Grewal was initially employed as a Finance Manager of Astha Limited. He later became the Registered Manager based in Leeds. Ms Chakraborty was a director of Astha Limited and a Registered Manager for London. Astha Limited provided domiciliary care services in Leeds and London.
Astha Limited was in act formed by Mr Grewal in September 2003. It was not until 2006 that Ms Chakraborty became a majority shareholder. In March 2007, Mr Grewal resigned as a Director and rejoined the Company as its Finance Manager in July 2007.
Between 2006 and 2012, the Company experienced financial difficulties. Furthermore, the business affairs of Mr Grewal and Ms Chakraborty were further complicated by the fact they were formerly personal as well as business partners, with evident acrimony and vitriol during the Employment Tribunal process.
In 1985, Mr Grewal suffered acute kidney failure, causing him to remain on dialysis until he had a successful kidney transplant in 1987. However, his new kidney began to fail and by 2010 he was back on dialysis again. A second kidney transplant took place in June 2013. He remained catheterised until August 2017. Mr Grewal takes daily medication and experiences breathlessness and extreme fatigue. He also has low immunity. For these reasons, Mr Grewal carried out most of his work duties from home. He was often criticised by Ms Chakraborty and told that he was “hardly doing any work as a registered manager”. Furthermore, she stopped sending him bank statements which prevented him from carrying out his duties as Finance Manager. This was done by Ms Chakraborty in an act of retaliation after Mr Grewal had contacted a loan company advising that he intended to withdraw as a guarantor, resulting in Ms Chakraborty having to repay the loan immediately.
The working relationship deteriorated further when Mr Grewal came to learn that Ms Chakraborty had used company funds to pay for her aunt’s care. Furthermore, Mr Grewal had sight of emails which Ms Chakraborty had sent enquiring of ways “to get rid of him”. Then followed an inflammatory email sent by Mr Grewal to Ms Chakraborty, where key colleagues were also copied in. An extract of the email included the following :
“So, whereas I have come to your aid and also helped your dreams to be fulfilled, you on the other hand have made it your mission to destroy any hope or aspiration that I may have had. You are capable of being a great friend and helpful, however it seems I have mainly experienced mostly your nasty side. You are clearly neither a friend nor a fair business partner”.
The Tribunal noted that the clear purpose of this email was to show Ms Chakraborty in an unfavourable light. Two months’ later, the pair attended a mediation meeting. It failed.
From this followed non-payments of dividends to Mr Grewal, despite Ms Chakraborty continuing to pay herself considerable sums from the business during a time when Mr Grewal had been told that no dividend payments were being paid. During the course of the proceedings, Mr Grewal put to Ms Chakraborty during cross examination that she withheld payments from him “to cripple me financially in order to get the remaining shares”. The Tribunal accepted it was the likely explanation for such actions.
By February 2017, Mr Grewal told Ms Chakraborty that he was considering issuing a claim to recover non-payment of his dividends arising from his share capital. A claim was subsequently issued in the High Court on 11th August 2017. In May 2017, Mr Grewal was notified of imminent disciplinary action being taken against him due to his alleged neglect of his responsibilities as Registered Manager in Leeds. A job description for this role was only created after the disciplinary investigation meeting had taken place. The outcome of the disciplinary action found Mr Grewal to be grossly negligent and he was dismissed effective from 25th September 2017.
Successful Tribunal Judgement
Mr Grewal had succeeded in his originating Employment Tribunal claims for unfair dismissal pursuant to section 94 if the Employment Rights Act 1996, failure to issue written particulars of employment pursuant to section 38 of the Employment Act 2002 and disability discrimination pursuant to section 15 of the Equality Act 2010. He was awarded over £41,000 in compensation. Both Astha Limited and Ms Chakraborty appealed the decision to the Employment Appeals Tribunal (EAT) stating that a personally named employee, Ms Chakraborty, could not be held to be liable under the Employment Rights Act 1996 and the Employment Act 2002. The appeal was allowed in part with the EAT giving due consideration to the principles applicable to the award of compensation in claims for unfair dismissal and discrimination. The EAT agreed that an unfair dismissal claim and a failure to issue written particulars of employment can only be brought against and an award enforced only against the employer. The compensation for such claims was adjusted accordingly.
Lawyer’s Comments
Joanna Robson, Head of Employment Law at Pickerings Solicitors “Mr Grewal was successful because he was able to establish that he had been unfairly dismissed pursuant to section 94 of the Employment Rights Act. He was also able to establish that his employer had failed to issue him with written particulars of employment under Section 38(2) of the Employment Act 2002, which gave the Employment Tribunal power to make an Award of up to four weeks’ pay due to such failures. The EAT overturned part of this decision, confirming that these claims could only be brought against the employer, Astha Limited, and not the individual employed by it, Ms Chakraborty".
Joanna explains that this case serves to highlight the fact that there can be no joint liability in an unfair dismissal where an individual is named as part of a claim, even where there may be ample evidence that the individual may have been the responsible or guilty party for effecting the dismissal. The liability rests with the employer where a section 94 claim is brought.
Joanna notes this case also included allegations of disability discrimination pursuant to section 15 of the Equality Act 2010 (EqA). Under the EqA, personal individuals can indeed be named and held liable for acts of discrimination. Compensation in successful claims can be unlimited in value so Joanna advises on how it is always best practice to obtain up to date personal information from employees and to train up members of staff as a priority and on a regular basis, keeping training logs, so as to ensure managers or any other employees do not find themselves being personally liable in proceedings such as this.
You can contact Joanna Robson on 01827 317070 or email jrobson@pickerings-solicitors.com
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The contents of this article are intended for general information purposes only and shall not be deemed to be or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
