Mr G Brunskill (1), Mrs L Brunskill (2) v Parker Barras Bar One Limited and 2 others — 2019

The tribunal found the third respondent, the Trustees & Committee of Eston Labour Club, was the employer of both claimants throughout their employment. It accepted that the Club was in financial difficulty, that the Agent was appointed in December 2017 to assist with cost-saving and management, and that there was confusion among staff about Mr Taylor's role. That confusion did not change the legal position. The Company did not become the transferee until 6 April 2018, after both employments had ended on 28 March 2018.

Mr Brunskill's constructive dismissal and unfair dismissal complaints failed. The tribunal accepted that some of the changes after the Agent's appointment could have affected his role as steward, including oversight of stock ordering and greater day-to-day involvement by Mr Taylor and Mr Gladhill, but it found he did not resign in response to a qualifying breach. Applying Western Excavating, Malik, Lewis, Morrow and Omilaju, it held there was no last straw before his resignation on 12 March 2018; the 10 March opening-time issue did not involve untoward conduct, and the later 12 March email criticism came after the resignations. The tribunal found his true reason for leaving was concern about Mrs Brunskill's ill-health and the need for family to come first.

Mrs Brunskill's constructive dismissal and unfair dismissal complaints succeeded. The tribunal found her employment terms entitled her to eight weeks' full sick pay and that, after she went off sick on 23 January 2018, the Trustees paid only SSP until her termination. Using Mears and Financial Techniques when considering the implied term point, the tribunal held that the sick pay entitlement continued on the 1989 contract terms and that the employer's non-payment was a fundamental and repudiatory breach. She resigned without affirming the contract, so she was dismissed under section 95(1)(c) ERA 1996. No fair reason for dismissal was advanced under section 98(1) and (4), so the dismissal was unfair.

Her unlawful deduction from wages claim succeeded on the same sick pay point. The tribunal dismissed both claimants' TUPE complaints, accepting that consultation had taken place and rejecting the arguments that liability moved to the Company. It also dismissed both redundancy payment claims because Mr Brunskill had not been dismissed and Mrs Brunskill's dismissal was not by reason of redundancy within section 139 ERA 1996. The Agent was not the employer under the agent agreement, and liability for Mrs Brunskill's successful claims remained with the Trustees. The judgment did not determine a monetary award and directed that Mrs Brunskill's successful claims be listed for a remedy hearing.