Mr Brendan Rosekelly v Mama Fuego Ltd FINAL HEARING — 2021

The claimant, Mr Brendan Rosekelly, was employed as bar manager from 9 September 2019 to 23 December 2019. The tribunal found that the parties had an original written contract providing for 48 hours per week, salary of £26,000 gross plus tronc, a two-month notice period, and a clause requiring any variation or termination to be in writing and signed by both parties. A second contract was sent on 23 October 2019, increasing salary to £30,000 and reducing notice, but the claimant did not sign it and disputed that it captured all that had been agreed orally.

The tribunal concluded, on the balance of probabilities, that either no full agreement was reached on the proposed changes or any oral agreement was not reflected in the second contract. It held that the first contract continued to govern the employment relationship because the contractual clause requiring signed written variation had not been complied with. On that basis, the claim for payment in lieu of additional hours worked failed, because the first contract contained no provision for payment or time off in lieu for extra hours.

The claim for notice pay succeeded. The tribunal found that the probationary period ended on 8 December 2019, notice of termination was given on 15 December 2019, and the respondent gave only one week's notice when the first contract required two months' notice. The tribunal also held that the claimant could not rely on selected terms from the second contract while relying on the first contract for notice; his salary remained £26,000 per year plus tronc for the purpose of working out the notice entitlement, with credit to be given for any overpayment. The judgment did not quantify the final sum, and the parties were invited to agree it or return for a further short decision if necessary.