Miss Merve Kalgidim v Early Education Alliance Limited — 2022

Miss Merve Kalgidim worked for Early Education Alliance Limited at The Garden Nursery and Pre School in Hove as a 1:1 support worker for child A. The tribunal found that the parties' agreement was for 12 hours a week on Wednesdays and Fridays for up to 51 weeks, based on the job description and interview discussion, and that the pro forma bank-worker contract relied on by the respondent was not the basis of the agreement. Applying the Ready Mixed Concrete approach to employee status, the tribunal held that she was an employee for the purposes of s.230 ERA 1996.

The tribunal accepted the claimant's evidence and contemporaneous emails that she was never given a written statement of particulars during her employment, so the claim under ss.1, 2 and 4 ERA 1996 succeeded. It held that the successful claims brought the case within s.38 Employment Act 2002 and ordered four weeks' wages. It also held that the claimant was entitled to one week's notice under s.86 ERA 1996 and that the respondent failed to pay that sum. The judgment records those orders, but it does not state a final quantified total in the text provided.

On wages, the tribunal found that the claimant was available to work for part of September 2020, was not paid on the 5 October 2020 pay date, and that although the September amount was later paid on 5 November 2020, the late payment was still an unlawful deduction on the due date. It also found that, after the respondent proposed a materially different working pattern in relation to child B, the claimant reasonably declined that altered arrangement, remained contractually entitled to pay for October 2020, and was not paid on the 4 November 2020 pay date.

On dismissal, the tribunal rejected the respondent's explanation that the dismissal followed the claimant's refusal to work on the revised pattern. It found that the decision to dismiss was taken no later than 31 October 2020 and that the principal reason was the claimant's 17 October 2020 email asserting statutory and contractual rights to written particulars and proper wages. The tribunal therefore held that the dismissal fell within s.104 ERA 1996 and was unfair.