Mrs L Smith v Dorothy House Hospice Care — 2021

Mrs L Smith brought claims for unfair dismissal, unpaid notice pay and unpaid holiday pay. The respondent said the notice and holiday pay claims had no or little reasonable prospect of success and applied for a preliminary hearing. The tribunal recorded that the respondent had changed retail employees' contractual terms in response to the pandemic and that the claimant refused the new terms, was dismissed on 9 September 2020 with notice, and was later paid an additional £240.92 after the notice period was extended to 30 November 2020.

The unpaid notice pay claim was dismissed. The tribunal said there was no authority before it supporting the claimant's proposition that it was inappropriate to give notice while she was absent through sickness, and it found the claim had no reasonable prospect of success. The claim for unpaid holiday pay was treated differently: the tribunal said it had no specific evidence as to how the holiday pay had been calculated and, on the material then before it, there was no basis for saying the claim had little or no prospect of success.

The unfair dismissal claim was not struck out. The respondent relied on dismissal for refusal to accept new contractual terms, describing that as a potentially fair reason, and cited Catamaran Cruisers v Williams EAT [1994] IRLR 386. The tribunal noted that 118 of 120 retail employees accepted the new terms and that the claimant had declined to take part in consultation or explain why she objected before dismissal. It was just persuaded not to strike out the claim, but ordered a £50 deposit because the tribunal considered the claim to have little reasonable prospect of success on the information available at the time of dismissal.