Case 1304258/2024 · Employment Tribunal
Claimant v DAVP Ltd T/a Boulevard — 2024
- Case reference
- 1304258/2024
- Decision date
- 6 November 2024
- Jurisdiction
- England & Wales
- Judge
- Employment Judge G Smart
Parties
2 namedClaimant
Claimant
Respondent
Key findings
Tribunal's reasoningThe claimant, Kelly Rodgers, was employed as a distribution manager at the Shrub Hill warehouse. The tribunal found that Amazon's account freeze created serious cash-flow problems for the respondent, but accepted that wages for January, February and March 2024 were not paid, and that pension contributions deducted from wages in November and December 2023 were not paid into the NEST scheme. After repeated discussions and emails, including a 28 March 2024 request for part payment of her January net salary of £1,856.33 by 2 April 2024, the claimant resigned on 1 April 2024.
The tribunal held that the non-payment of wages and pension contributions were fundamental breaches of contract and that the claimant had not affirmed those breaches. Applying Kaur, it treated the continuing non-payment as a cumulative breach and last-straw situation, and found that the resignation within 72 hours of the 28 March request was in response to those breaches. It therefore found constructive dismissal and unfair dismissal. On fairness, it accepted that the respondent was in financial crisis and had kept employees informed, but held that refusing to pay anything, and giving no definite timeline even for a token payment, fell outside the band of reasonable responses; it also found no fair reason for the November and December 2023 pension non-payments, which the respondent said were due to an administrative error.
The tribunal also upheld the breach of contract claim for the pension deductions, the notice pay claim, and the unlawful deduction of wages claim for January to March 2024. It rejected the respondent's counterclaim based on alleged gross misconduct, finding the allegations about hidden stock, unprocessed returns and related losses were not sufficiently evidenced, were raised late, and were not supported by the disclosure or the untested statements. No remedy figure was fixed in this judgment; the tribunal directed the parties to try to agree compensation and to report whether a remedy hearing was needed.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | The tribunal found that the claimant resigned on 1 April 2024 in response to repeated non-payment of wages and pension contributions. | Upheld | — | — |
| Unfair dismissal | The tribunal held the constructive dismissal was unfair because the respondent's refusal to pay anything, without any definite timeline, was outside the band of reasonable responses; it also found no fair reason for the November and December 2023 pension non-payments. | Upheld | — | — |
| Breach of contract | Failure to pass on pension deductions into the NEST scheme for November and December 2023. | Upheld | — | — |
| Wrongful dismissal | Notice pay claim arising from the termination of employment without one calendar month's notice pay. | Upheld | — | — |
| Unlawful deduction from wages | Non-payment of wages for January, February and March 2024. | Upheld | — | — |
| Other | Respondent's counterclaim for alleged losses and stock issues said to arise from the claimant's alleged gross misconduct. | Dismissed | — | — |
Legal tests applied
18 references- Kaur v Leeds Teaching Hospitals test
- Humby v Barts Health NHS Trust
- Lewis v Motorworld last straw
- Omilaju last straw
- s.95 ERA 1996
- s.98 ERA 1996
- Iceland Frozen Foods band of reasonable responses
- Berriman v Delabole Slate Limited
- West Midlands Coop v Tipton
- Sainsburys Supermarkets Ltd v Hitt
- Cantor Fitzgerald repudiatory non-payment of remuneration
- Mostyn v S & P Casuals Ltd
- Palmeri v Charles Stanley gross misconduct test
- Mbubaegbu cumulative gross misconduct
- Hunt v British Railways Board
- Meikle v Nottinghamshire County Council
- s.13 ERA 1996
- Hadley v Baxendale
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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