Mrs J Malone First v Orion Paint Limited Second Respondent Andrew Cowell — 2022

The tribunal found that the claimant's employment history across the Cowell family businesses was confusing, but that there was a break in continuity between 4 September 2000 and 9 October 2000. It then held that there was no continuity of employment before 2010 for redundancy and notice purposes, because Centreforce was not an associated employer of Orion Paint Limited within section 231 ERA 1996. The tribunal accepted that the claimant would understandably have thought her service was continuous and noted that she should have received a redundancy payment when Centreforce ceased trading, but that did not create continuity for the later Orion employment.

On unfair dismissal, the tribunal accepted that redundancy was the principal reason for dismissal and rejected the claimant's case that the dismissal was because she had made complaints or because of her second job. It found that the concern about the bar work was that the claimant had been off sick while still working elsewhere, and that there was no genuine intention to sack her. Applying section 98 ERA 1996 and section 98(4), and referring to the Polkey principles, the tribunal held that the respondent acted reasonably in all the circumstances: the claimant was warned and consulted, the consultation took place by telephone during the pandemic, there was no selection process because all staff except R2 and Tom were made redundant, and there was no suitable alternative employment.

The tribunal dismissed the wrongful dismissal/notice pay claim because the claimant had been paid the correct notice pay on the basis of continuous employment from 2010. It dismissed the holiday pay claim because the respondent was entitled to require the claimant to take her outstanding 12 days of leave during the notice period and gave adequate notice under the Working Time Regulations. It also dismissed the equal pay claim because Tom Cowell did not do like work to the claimant: his role was mainly social media work, while hers was mainly administrative, and the higher pay was found to be explained by a material factor unrelated to sex. All claims were dismissed and no monetary award was made.