Case 1405402/2020 · Employment Tribunal
In person For the v Simms v H Burke — 2021
- Case reference
- 1405402/2020
- Decision date
- 28 May 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Dawson Appearances
Parties
2 namedClaimant
In person For the
Respondent
Key findings
Tribunal's reasoningThe tribunal found that the claimant had worked for the respondent's bakery business for many years and that, when the business stopped operating during the coronavirus pandemic, she was told there was no work and went home. The claimant later wrote asking about her P45 and the respondent sent a message on 26 May 2020 saying there were P45s to sort tax codes and that nobody had been sacked. The tribunal held that this message was at most ambiguous and that a reasonable reader would understand it as meaning there was currently no work, not that the claimant had been dismissed.
The tribunal accepted that the claimant later treated the relationship as ended in her letter of 17 August 2020, in which she said she had been dismissed by reason of redundancy and claimed notice pay. It held that this letter amounted to a resignation by the claimant, with an effective date of termination of 17 August 2020. On that basis, the redundancy payment claim failed because there had been no dismissal by the employer and therefore no dismissal by reason of redundancy.
The unfair dismissal claim also failed. Although the tribunal said the respondent would have a strong argument that not providing work or pay from the end of March 2020 was a repudiatory breach, it found the claimant had not resigned in response to that breach. Applying the constructive dismissal analysis in Kaur v Leeds Teaching Hospitals, the tribunal held there was no dismissal by the employer and no constructive dismissal.
The notice pay claim failed for the same reason: the claimant resigned without working her notice, so there was no breach of contract by the respondent. The holiday pay claim succeeded. The tribunal accepted that the claimant's holiday year ran from 1 April to 31 March, that she could carry forward two weeks' holiday, and that she had not been paid for the first two weeks of April 2020 when payment should have been made on 18 May 2020. It found that this was a breach of contract and awarded £741.76, noting that the claim was brought within three months of the effective date of termination and that it did not need to determine the parallel Working Time Regulations claim.
Claims and outcomes
4 findings recordedThis case has mixed outcomes under at least one legal claim type. A tribunal can uphold some allegations and dismiss others under the same legal head, so rows below may represent separate issues or allegation groups from the judgment.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Redundancy | The tribunal found the respondent had not dismissed the claimant and that her later resignation was not caused by any breach of contract, so no redundancy payment was due. | Dismissed | — | — |
| Unfair dismissal | The tribunal found there was no dismissal by the employer and no constructive dismissal because the claimant did not resign in response to any breach. | Dismissed | — | — |
| Breach of contract | The claimant's notice pay claim failed because she resigned and did not work her notice, so there was no breach by the respondent. | Dismissed | — | — |
| Breach of contract | Holiday pay for the first two weeks of April 2020 succeeded as an express contractual entitlement that had not been paid. | Upheld | — | £742 |
Remedy
Monetary award- Total award
- £742
- across all upheld claims
Legal tests applied
11 references- Harvey on Industrial Relations reasonable listener test
- Craig v Bob Lindfield & Son Ltd
- s.139 ERA 1996
- s.163(2) ERA 1996
- s.111 ERA 1996
- Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 art 7
- s.94 ERA 1996
- s.95 ERA 1996
- Kaur v Leeds Teaching Hospitals
- s.98(4) ERA 1996
- Working Time Regulations 1998 reg 16
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.
How we got this data
Case essentials (reference, date, judge, venue, country, claim categories) are extracted from the structured metadata gov.uk publishes alongside each decision. Parties and monetary figures are extracted from the judgment PDF text. Key findings and per-claim outcomes require a second extraction pass that is not yet complete for this case — until then, the primary source linked above is the authoritative record. See full methodology.
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