Ms M Changleng v Hertsmonceux Pre-School Limited — 2023

Ms Changleng had been employed by Hertsmonceux Pre-School Limited since July 2013. The tribunal found that during 2021 there were repeated disputes about SSP, holiday pay, furlough and the way her pay was being calculated, and that the respondent had made errors in pay calculations. It accepted that Mr Porter initially agreed that the claimant should receive full SSP, but later retreated from that position and the respondent also ceased paying her on the pro rata basis that had previously applied.

The tribunal held that the claimant raised her pay concerns, grievance and grounds of appeal in good faith and that she was entitled to be sceptical about the respondent's calculations. It found that the disciplinary process which followed her appeal was inextricably linked to those pay complaints. Although the respondent said dismissal was for repudiatory breaches or misconduct arising from the investigation meeting on 23 August 2021, the tribunal found that the principal reason for dismissal was the claimant's assertion of statutory rights in relation to wages, so the automatically unfair dismissal claim under section 104 ERA 1996 succeeded.

On wrongful dismissal, the tribunal accepted that the claimant was contractually entitled to four weeks' notice. It rejected the respondent's argument that the 2020 contract or the 3 May 2021 email had changed her entitlement to pro rata pay, and it rejected the respondent's contention that she had been overpaid. It therefore found that the deduction from the notice payment was unlawful and that the respondent was in breach of contract in failing to pay the full notice entitlement. It also upheld the unlawful deductions from wages claim in relation to the unilateral change in pay arrangement from April 2021 onward.

The separate breach of contract claim concerning pension contributions also succeeded. The tribunal found that the employer's pension contributions shown on the claimant's payslips were below the 3% level referred to in the respondent's own earlier email, and it recorded a schedule of monthly underpayments from October 2020 to September 2021. No final monetary award was made in this judgment. The tribunal directed the parties to exchange counter-schedules and listed a further remedy hearing for 1 August 2023. The claim for accrued but unpaid annual leave was withdrawn and dismissed upon withdrawal.