Mrs A E Nicholls v Mandy Tidy — 2020

The claimant, Mrs A E Nicholls, had worked for the respondent bakery since 19 October 1987 and was dismissed on 27 September 2019. The tribunal found that she made herself a sandwich during her shift, placed it with her belongings in a cupboard, and was challenged by the respondent over taking product off site. The claimant said this was part of an established lunch arrangement; the respondent said permission was required. The written reasons claim was withdrawn at the hearing, and the redundancy payment claim was not pursued.

On the dismissal dispute, the tribunal preferred the claimant's evidence and accepted that she had taken sandwiches off site on numerous occasions over many years without challenge. It found that the respondent's observation of the sandwich in the cupboard could not have created a genuine belief that the claimant was guilty of misconduct, and it rejected the respondent's case that the claimant had resigned. The tribunal held that the respondent had not proved the reason for dismissal under section 98(1) ERA 1996 and therefore found the dismissal unfair. It made no finding that the real reason was redundancy, because the claimant was not pursuing that case and the evidence was not sufficient to reach that conclusion.

The tribunal also held that the claimant was wrongfully dismissed and entitled to 12 weeks' notice pay under section 86 ERA 1996, with remedy to be decided at a further hearing. It found that the deduction of £99.60 from final wages for excess holiday was unlawful because the claimant had no written contract of employment and had not consented to the deduction. On holiday pay, the tribunal accepted the accountant's evidence that the holiday year ran from 1 April to 31 March and found that by 27 September 2019 the claimant had taken all of her holiday entitlement, so no payment for untaken leave was due. It also held that she was entitled to an award for the respondent's failure to provide written particulars of employment, with the amount again left for the remedy hearing.