In Person For the v Mr A Odabas (Director) — 2020

The tribunal accepted that the claimant had been continuously employed from 1 September 2013, following the June 2019 transfer of the restaurant business to West Park Lounge Limited under TUPE. The main dispute was whether his employment ended by resignation on 3 March 2020 or by dismissal on 27 March 2020. The claimant had been absent from work from 17 February 2020 because of back pain, and the tribunal found that he did not submit his fit notes until 27 March 2020.

On the evidence, the tribunal found that during the 3 March 2020 home visit the claimant said words to the effect that he was not returning to work. Applying the principles in Western Excavating and the approach to ambiguous words discussed in Sothern, Kwik-Fit and Willoughby, the tribunal held that Mr Odabas reasonably understood this as a present and permanent intention to end the employment. The tribunal therefore found that the claimant resigned on 3 March 2020 and was not dismissed expressly or constructively on that date, or on 27 March 2020.

Because the tribunal found no dismissal, the unfair dismissal and breach of contract claims failed. The holiday pay claim under the Working Time Regulations 1998 also failed: the tribunal found that the claimant had already taken 12 days leave while visiting his father, against a proportionate entitlement of 4.5 days as at 3 March 2020. However, the tribunal found that he had not been paid from 17 February to 3 March 2020, and held that this amounted to an unlawful deduction from wages under section 13 ERA 1996.

The tribunal awarded the claimant £566.55, calculated as 15 days at a daily rate of £37.77. No separate dismissal remedy was awarded.