MRS BUSRA BERBER v Senol & Senol Ltd — 2023

The claimant was employed by the respondent as an architect from 22 June 2018. After her husband died suddenly on 23 June 2021 she left work, went to Turkey, and later spoke to Serkan Senol in October 2021 about how, and whether, she might return to work. The tribunal found that the parties did not agree any termination during that October conversation, but also found that the claimant later accepted new employment with Sanli Design Ltd from 3 January 2022 without informing the respondent.

The tribunal found that on 7 January 2022 Mr Senol emailed the claimant saying she had until 21 January 2022 to say what she intended to do, and that on 24 January 2022 he emailed again saying her silence was unacceptable and that her employment was being terminated. It accepted the respondent’s evidence that both emails were sent to, and received at, the claimant’s personal email address. The tribunal rejected the claimant’s account that she had been waiting for a response from the respondent in January 2022 and relied on the fact that her first later contact, on 14 June 2022, was to request documents including a P45 and P60.

The tribunal held that the claimant was dismissed on or about 24 January 2022 and that the dismissal was effective because it had been communicated to her and she was aware of it. Her early conciliation claim did not begin until 6 July 2022 and the ET1 was presented on 15 September 2022, so all claims were out of time. As she had not shown that it was not reasonably practicable to present the claims in time, the tribunal dismissed the unfair dismissal claim and the related notice pay, arrears of pay and holiday pay claims.

In the alternative, if the January 2022 dismissal had not been communicated effectively, the tribunal said the claimant’s conduct in accepting other work from 3 January 2022 and later asking for a P45 amounted to resignation by conduct on 14 June 2022. On that alternative analysis there would still have been no unfair dismissal claim, no notice pay claim, and no monetary entitlement because the parties had agreed she was not to be paid during the relevant period.