Mr M Bruce v All Kent Services Limited — 2024

Mr M Bruce worked for Orchard Windows and then All Kent Services Limited from 17 July 2006 until 11 August 2023. The respondent did not attend the hearing, and the tribunal continued in its absence under Rule 47. The tribunal allowed an amendment so that the claimant's pleaded facts about unpaid pension contributions could be treated as a breach of contract claim, applying Selkent v Moore and finding the respondent had been aware of the underlying facts before the claim was presented.

On notice pay, the tribunal found that there was no expressly agreed contractual notice period. It held that reasonable notice for the claimant's role was the statutory minimum, namely 12 weeks, because he had more than 12 years' service. As the claimant was told on 11 August 2023 that he did not need to work his notice but was not paid for it, the tribunal found a breach of contract and awarded £5,040 gross, being 12 weeks at £420 per week.

On pensions, the tribunal accepted the documentary evidence that the claimant had been enrolled in NEST and found that the last employee and employer contributions were made on 9 April 2019. It nevertheless rejected the argument that the employment contract contained an implied term requiring the respondent to pay pension contributions into NEST. The tribunal reasoned that auto-enrolment duties under the Pensions Act 2008 were statutory rather than contractual, that section 1(5) of the Employment Rights Act 1996 disapplied the duty to include pension particulars in this case, and that the conduct of the parties did not justify implying the term on a business efficacy or officious bystander basis.

On redundancy, the tribunal found that the letter sent on 11 August 2023 stated that the claimant and the other employees were to be made redundant and that the business was said to be going into liquidation, but the respondent had not actually been liquidated or dissolved. The claimant had continuous employment from 17 July 2006 to 11 August 2023, so he met the two-year qualifying period. Applying the statutory redundancy provisions and the presumption that a dismissal is by reason of redundancy unless the contrary is proved, the tribunal awarded a statutory redundancy payment of £9,240.

The tribunal also found a failure to provide a compliant written statement of employment particulars. The claimant did not receive a written statement until 5 September 2011, several years after employment began, and that statement was only partially compliant. There were no exceptional circumstances making an award unjust or inequitable, so the tribunal made the statutory additional award under section 38 of the Employment Act 2002. It considered four weeks' pay just and equitable and awarded £1,680.