Miss E Corpuz v Hilbre Care Ltd (in creditors’ voluntary liquidation) and 2 others — 2022

The tribunal held that Hilbre Care Limited was the claimant's employer by the end of her employment, initially through a transfer from Mrs McManus under TUPE around June 2016. It found that the claimant had signed a written contract in September 2014 naming her as a Trainee Care Home Manager and providing for an hourly rate of £11.43, but that in practice she worked as a Senior Carer and was paid less than that rate for most of the period in issue.

On the wages claim, the tribunal found that the £11.43 term was part of the contract, was not a sham, and had never been validly varied. The claimant had queried the shortfall and later sought union help, so her continued work did not amount to acceptance of a lower rate. The tribunal also said that, if there had been a purported variation, it would in any event have been vitiated by economic duress because of the claimant's vulnerable immigration position. It therefore held that lower payments were unlawful deductions from wages, subject to the two-year limitation period in section 23(4A) ERA 1996.

On dismissal, the tribunal found that Mrs McManus had promised the claimant continued sponsorship for a Tier 2 visa until she was eligible for residency, but later decided not to seek any further Certificates of Sponsorship. It held that the failure to support the claimant's visa application breached the implied term of trust and confidence, that the breach occurred when the claimant realised sponsorship would not be provided, and that she resigned because of that breach. The tribunal also held that the claimant did not affirm the contract before resigning. Although it found that the pay and role-title terms had also been breached, it found those breaches did not cause the resignation.

The tribunal rejected the respondent's case that any constructive dismissal was fair. It held that Hilbre Care Limited had not proved that the sole or principal reason for the breach was that the claimant could not continue to work without contravening immigration law, or a genuine belief to that effect. Even if that had been the reason, the tribunal said the dismissal would still have been unfair because the claimant had been promised sponsorship, had not been properly consulted, and the respondent acted unreasonably in treating the immigration issue as sufficient. A separate remedy hearing was ordered, and this liability judgment did not fix any monetary award.