Mr S Lloyd (Unite) For the v Respondent — 2021

Following a preliminary hearing, the claimant was treated as an employee and worker but had been wrongly treated as self-employed. At the merits hearing the parties agreed she had been underpaid National Minimum Wage by £283.38 and had accrued 9 days' untaken holiday worth £554.90. The tribunal also found that when proceedings began the respondent had failed to give her a written statement of employment particulars.

On dismissal, the tribunal rejected the respondent's performance-based explanation and preferred the claimant's account of the events in February 2020. It found that Ms Nichols-Turley dismissed the claimant because, in a text message of 18 February 2020, she said she should be paid National Minimum Wage and asserted a statutory right. The dismissal was therefore automatically unfair under s.104 ERA 1996. No basic award was payable because the claimant had only six months' service, and the ACAS uplift was rejected because the tribunal held the Code did not apply to this dismissal.

For remedy, the tribunal found the claimant had reasonably mitigated her loss before the first lockdown by applying for jobs and contacting salons, but that she should have resumed looking for work after lockdown ended. It assessed loss on the basis of 16 contractual hours a week and, applying the evidence about wages, tips, furlough and Universal Credit, awarded a compensatory award of £4,605.54, covering loss to 1 October 2020. The parties agreed one week's notice was due, but no separate damages were awarded because that element was already included in the compensatory award. Under section 38 of the Employment Act 2002, the tribunal awarded two weeks' pay, £246.40, for the absence of a written statement, and declined to award four weeks' pay.