Zahra Akbar v Butt & Hobbs Limited T/A Hobbs Pharmacy — 2022

Zahra Akbar worked for Butt & Hobbs Limited T/A Hobbs Pharmacy from 19 October 2019 until 24 February 2021, first as a pharmacy assistant and then as a pharmacist. On 24 January 2021 she emailed that she was resigning and asked to use annual leave for travel and isolation, but the tribunal found that she was under the mistaken belief that her notice period was one month and that she genuinely intended to work her full contractual notice. The tribunal accepted that Mr Younis did not respond to her follow-up email and WhatsApp messages, that she was removed from the February 2021 rota, and that she was not paid her January 2021 wages when they fell due.

The tribunal held that the respondent’s failure to include her on the February rota unilaterally brought the effective termination date forward to 24 February 2021, so the employment ended by dismissal rather than resignation. Applying section 13 ERA 1996 and the contractual wording relied on by the respondent, it found that the deduction clause only applied where an employee left without giving and working full notice and did not authorise deductions in the circumstances of this dismissal. The tribunal also found that the respondent had not proved recoverable cover costs and had not adequately mitigated any loss. It therefore ordered payment of £2,032.80, being the gross January wages withheld.

On holiday pay, the tribunal accepted the claimant’s evidence about her working pattern and calculated entitlement under the Working Time Regulations 1998. It found that for the holiday year from 6 April 2020 to 24 February 2021 the claimant had a total entitlement of 21.29 days, had taken 13 days, and therefore had 8 days of accrued but untaken leave remaining. Using an average gross daily rate of £70.54, the tribunal awarded £565.32 for holiday pay. It rejected the respondent’s argument that it could offset cover costs or require the claimant to take outstanding holiday during notice on the evidence before it.