Café worker wins compensation after working hours row

Thursday 16 February 2023

A café worker who fell out with his employer over potential new working hours due to staff shortages has won £704 in compensation for unfair and wrongful dismissal.

Alvaro Pinto Figueira complained to the Employment and Discrimination Tribunal after a disagreement following the cafe's reopening last September after renovations, the tribunal heard.

The dispute stemmed from a conversation between Mr Figueira and Jose Batista, a Director of L.M. Pinto Limited, over early-closing at the café caused by staff shortages.

Mr Batista told the tribunal's Deputy Chair Hannah Westmacott that he had asked all his staff to work new hours, requiring Mr Figueira to start at 16:00 rather than 18:00, under the new arrangements.

He accepted that he had then told Mr Figueira to leave but only if he was not willing to begin work two hours early, something he denied constituted a dismissal. He told the tribunal that he knew that he had to give notice to his employee if he wished to dismiss them and that no notice had been given in this case, and he also argued that it would have made no sense for him to have dismissed the claimant in view of their staff shortages.

Pictured: The case was heard by the Employment and Discrimination Tribunal's Deputy Chair Hannah Westmacott.

Summarising the evidence, Ms Westmacott said that while Mr Batista had been consistent in his account of this conversation over working hours, his accounts of what happened afterwards conflicted. He said that Mr Figueira had gone home without saying anything but later reported an exchange when he claimed that Mr Figueira told him that he no longer worked at the café.

In his evidence Mr Figueira accepted that an unsigned and undated contract required him to work 'weekly hours over shifts according to the business' necessity' but argued that it was unfair to be given no notice of new arrangements.

Giving judgment, Ms Westmacott said that it was necessary for the tribunal to decide whether Mr Batista's words constituted a dismissal.

She said: "The respondent’s witness [statement] assert[s] that, after the claimant’s refusal to attend work early the next day, Mr Batista said: 'if [you don’t] want to work that shift you can leave', 'if you don’t want to work, just leave', and 'if you don’t want to come, don’t come.'

"There is, therefore, little in dispute in relation to what was said by Mr Batista to the claimant. It was clear that Mr Batista told the claimant to leave if he was not willing to come in to work at 16:00 the next day.

"No evidence was put forward that anything was said at the time of the 2 September conversation to suggest that Mr Batista was only asking the claimant to leave work temporarily. It would, therefore, be reasonable for the claimant to assume he had been asked to leave permanently. Consequently, I find that this wording constitutes a clear dismissal."

The tribunal went on to find that, since no fair reason for the dismissal was given and no process followed, it was unfair as a result.

On the basis of less than two years' continuous service, Mr Figueira might have been entitled to eight weeks' compensation but Ms Westmacott noted that the claimant could have responded more helpfully than simply refusing to come to work early in accordance with the request and that Mr Batista had subsequently asked Mr Figueira to return to work.

"The claimant did not wish to do this, which is his right. However, had he done this he could have returned to work and the dismissal could have been withdrawn after two days. Mr Batista indicated that he did not intend to dismiss the claimant and that, as he was short staffed, it would not make sense for him to do so," Ms Westmacott noted in her judgment.

As a result she reduced the compensation payable to two days' pay for unfair dismissal, corresponding to £176. Having received no notice or payment in lieu of notice, Mr Figueira was also wrongfully dismissed, the tribunal found, also awarding him damages of one week's pay equating to £528.