Miss Yvonne House v Christopher Mallaburn t/a Hermitage Inn Hotel — 2021

Miss Yvonne House worked at the Hermitage Inn Hotel for about six years before Christopher Mallaburn became the tenant and employer on 24 February 2020. After the first COVID lockdown, the staff were told furlough arrangements were being put in place, but payments were delayed and the business reopened on 4 July 2020 with only some staff returning. The claimant said Mr Mallaburn had said he would bring back younger staff because they were cheaper and more energetic; he denied making those remarks. She raised a grievance on 6 July 2020 complaining about the alleged age discrimination and the lack of shifts.

The unfair dismissal claim failed because the tribunal found there was no evidence that the respondent had dismissed the claimant. It noted that the claimant had not said in writing or orally that she had been dismissed, and that her statement of loss said she was still employed by the respondent. On that basis the tribunal could not find an actual or constructive dismissal, so the claim was dismissed.

The age discrimination claim was also dismissed. The tribunal applied s.136 Equality Act 2010 and referred to Igen Limited v Wong, Efobi v Royal Mail Group and Ayodele v Citylink Limited, but concluded that there were not facts from which it could find a contravention of s.13 Equality Act 2010. It accepted that the claimant was 54 and that shifts had been offered to other staff after reopening, but it was not satisfied that the evidence established direct age discrimination.

The tribunal upheld the unlawful deduction from wages claim. It found that the claimant was entitled to wages from 20 March 2020 to 6 July 2020 despite the failed furlough application, because the respondent's obligation to pay wages under the contract remained. The award on that claim was 16 weeks at £95.20 per week, totalling £1,523.20. The holiday pay claim also succeeded, with the tribunal finding that the claimant was owed 39.7 hours of accrued annual leave at £8.50 per hour, producing £337.45.

The victimisation claim succeeded. The tribunal found that the 6 July 2020 grievance was a protected act and that, after it was raised, the claimant was not offered shifts until she started work at the Masons Arms on 23 August 2020. It awarded seven weeks' earnings of £833 and £1,500 for injury to feelings, then reduced the total by 15% because the claimant did not appeal the grievance decision, resulting in £1,983.05. The tribunal also said the claimant was responsible for any tax or national insurance due on the awards.