Mr A Teixeira (First Claimant) and Mr H Da Silva (Second Claimant) v Zaika Restaurant Limited — 2021

The tribunal found that the first national lockdown created a redundancy situation at Zaika because the restaurant closed in March 2020 and did not reopen until 8 September 2020. It accepted that the respondent decided to make redundancies rather than simply place staff on furlough, and found that no redundancy procedure was followed before the First Claimant was told on 1 April 2020 that he was being dismissed and the Second Claimant on 8 April 2020. The tribunal also found that the furlough emails did not amount to an effective contractual variation: the First Claimant was not included in the email list, and the Second Claimant’s silence did not amount to consent.

For the First Claimant, the tribunal found that his contractual salary by dismissal was £34,000 per year and that the tronc element was not, by then, a genuinely discretionary component of his pay. It accepted that he was entitled to four weeks’ notice and that his employment ended on 29 April 2020. His unfair dismissal claim succeeded because the dismissal was procedurally unfair, but the tribunal held there was a 100% likelihood that he would still have been dismissed fairly for redundancy. It therefore made a full Polkey reduction to any compensatory award and treated the redundancy/basic award element as £2,152 before set-off.

The First Claimant’s notice-pay complaint also succeeded because he should have been paid full salary during his notice period, but the tribunal’s overall calculations took account of amounts paid to him after the effective date of termination and sums received in excess of contractual entitlement. Those offsets produced a net sum of £989.19 payable to him. For the Second Claimant, the tribunal found that his continuous employment began in June 2018 and ended on 15 April 2020, so he had not completed two years’ service. His unfair dismissal claim was struck out for lack of jurisdiction, his redundancy-payment claim could not proceed, and his notice-pay complaint was dismissed. The respondent’s counterclaims succeeded, although no order was made requiring repayment by the Second Claimant.