Mr J Firth First v Winns Coaches Limited Second Respondent: Winns Brothers Partnership — 2021

Employment Judge Martin found that the intended transfer of the partnership business to Winns Coaches Limited did not in fact take place. The only transfer identified was part of the Ledger Travel work, and the claimant was not assigned to that part of the business. On that basis, the tribunal dismissed the TUPE failure-to-inform-and-consult complaint and concluded that the claimant's employment did not transfer to the first respondent.

The tribunal accepted that the claimant was not paid the balance of his August 2019 wages, was not paid the first part of his September wages, and had pension contributions deducted from pay in May to July 2019 but not remitted to his pension fund. It found that the claimant resigned on 25 September 2019 because the outstanding wages had still not been paid despite assurances that they would be paid by 16 September 2019 at the latest. Applying the constructive dismissal analysis under section 95(1)(c) ERA 1996 and Western Excavating, the tribunal held that the non-payment of wages was a fundamental breach, that the claimant resigned in response to it, and that he had not affirmed the contract.

The tribunal therefore upheld the unfair dismissal claim. It awarded a basic award of £3,937.50 and recorded the compensatory element as nil from 1 November 2019 because it found the claimant would have been made redundant when the second respondent stopped trading in October 2019; it also added £350 for loss of statutory rights, making £4,287.50 on the unfair dismissal compensation calculation. It separately awarded £3,135.55 for unlawful deductions from wages, £954.80 for holiday pay, and £2,170.00 for notice pay.

On the remaining statutory claim, the tribunal found that no written statement of particulars of employment had been produced or issued and awarded two weeks' compensation under section 38(3) of the Employment Act 2002 in the sum of £1,076.92. The tribunal preferred the respondents' evidence that the holiday year followed the financial year and that holiday could not be carried over, and it accepted that the claimant had taken three days' holiday in the relevant year.