Mr J Lewis-Bale of Counsel For the v Mr G Hine, Consultant — 2021

The tribunal heard conflicting evidence about events on 4 and 6 March 2020, when the claimant was seeking compassionate leave to care for her seriously ill mother. It preferred the evidence of Mrs Noble and Mrs Lapham, supported by contemporaneous documents prepared by Mrs Noble on 4 March 2020, and found that the claimant said she needed to leave work and could not accept only one week of compassionate leave. The tribunal concluded that the claimant’s clear words and intention on 4 March 2020 were to resign her employment with effect from 6 March 2020 in order to care for her mother.

Although the tribunal noted some matters that sat uneasily with the respondent’s case, including the retention of work items, the later disciplinary investigation, and the timing of the P45, it still found that the weight of evidence favoured the respondent. It held that the claimant resigned and was not dismissed, so the unfair dismissal claim failed under section 94 of the Employment Rights Act 1996 because there had been no dismissal within section 95(1)(c).

The breach of contract claim for notice pay was also dismissed. The tribunal held that the claim was permitted under article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, but on the facts the claimant had resigned and in any event had been paid by the respondent for the whole of March 2020 even though employment ended on 6 March 2020.

The claim for accrued holiday pay under the Working Time Regulations 1998 was dismissed as well. The tribunal found that the respondent’s holiday year ran from 1 January and that the claimant had taken two weeks’ paid leave in February 2020, which exceeded her pro rata entitlement by 6 March 2020. It therefore held that she had no accrued but unpaid holiday pay at termination, and no payment in lieu was due under regulation 14.