Mr A Bate (McKenzie Friend) For the v Ms Y Montaz (tribunal advocate) — 2021

The claimant withdrew his holiday pay claim in closing submissions, and the tribunal dismissed it on withdrawal. This was a liability-only judgment, with remedy listed for a later hearing on 7 April 2021.

The tribunal found that the claimant's contractual role before the 1 August 2017 TUPE transfer was Head Chef. It relied on the written contract issued in October 2012, which described him as Head Chef, the 2016 hygiene inspection record signed by him as Head Chef, and witness evidence supporting that status. It rejected the respondent's attempt to characterise him as merely a chef or to rely on later paperwork and pay arrangements to displace his contractual title.

After the transfer, the respondent had already recruited Tony Davis to run the kitchen and later introduced him as the new head chef. The tribunal found there was no clear pre-transfer statement that the claimant would lose his head chef role, and that by 6 October 2017 the respondent had made clear that he was being treated as one of the chefs and would have to apply for the head chef post. The claimant's letter of 14 October 2017 asserted breach of contract and asked for his contractual position to be confirmed, and he resigned on 30 October 2017.

The tribunal held that the respondent's treatment of the claimant was a fundamental breach of contract and that he resigned in acceptance of that breach, so he was constructively dismissed. It then found that the sole or principal reason for the dismissal was the transfer itself, and that the respondent's alternative reliance on regulation 7(2) TUPE was not made out because the suggested salary and reorganisation reason did not entail changes in the workforce. The dismissal was therefore automatically unfair under regulation 7(1) TUPE, and the tribunal said it would have found unfair dismissal under section 98 ERA 1996 in any event.