Marinilza Nazareth v NP3 Building Services Ltd (in Voluntary Liquidation) — 2022

Marinilza Nazareth worked as a Contract Manager for the respondent after starting as an agency worker and then joining on 1 September 2019. The tribunal accepted that she was initially employed on £42,000 for 40 hours per week, was told about overtime rates and bonus arrangements, and later agreed with director Niall Connolly that her salary would rise to £48,000 from December 2019. It accepted her evidence, supported by John Gilmartin’s written statement, that she was not paid her full salary from December 2019 onwards and that her employment ended on 22 May 2020.

The tribunal found that she was entitled to one month’s notice under her contract and employee handbook, but had not been given notice when her employment ended and had not been paid in lieu. The wrongful dismissal claim therefore succeeded and £4,000 gross was awarded. It also found that she had 28 days’ leave, had not taken annual leave in 2019 because the respondent asked her not to, and had accrued 21 days of untaken holiday across 2019 and 2020. The holiday pay breach of contract claim succeeded and £3,876.92 gross was awarded. On wages, the tribunal accepted that she had not been paid overtime or much of her basic salary from October 2019, accepted her schedule figures for unpaid salary and overtime, and ordered the gross equivalent of £21,406.09.

A separate claim for a bonus payment failed. The tribunal found that the April bonus was not guaranteed, but depended on company performance, so there was no breach of contract and no award on that issue. For unfair dismissal, the tribunal considered claims under s103A and s104(1)(b) ERA 1996 and held that the relevant basis was s104(1)(b). It found that she had asserted her statutory right under s13 ERA 1996 not to suffer unauthorised deductions, that she did so in good faith, and that this was the principal reason for dismissal; her references to HMRC were treated as the last straw rather than the sole reason.

The tribunal therefore found automatic unfair dismissal under s104(1)(b) and s104(4)(a) ERA 1996. No basic award was made because of the claimant’s length of service. The compensatory award was assessed on the period from 15 June 2020 to 30 November 2020 at £16,656 net, with a further £300 for statutory rights, and then increased by 25% under s124A ERA 1996 because of the respondent’s failure to comply with the Acas Code. The final compensatory award was £23,368.75 gross, and all awarded sums were stated gross, with tax and employee national insurance to be accounted for where applicable. Taken together, the awarded sums total £52,651.76 gross.