Mr S Unwin v East Midlands Housing Group Limited — 2021

Mr S Unwin brought a claim for breach of contract, contending that he should have been paid his normal pay in lieu of notice. The tribunal recorded that he had been employed as a Management Accountant from 27 May 2014 until 3 February 2021 and that he was dismissed for capability arising from long-term sickness absence. He was not required to work his notice period, and his contract provided for three months' notice and a payment in lieu of notice clause.

The tribunal found that the claimant had been continuously absent on sick leave from 19 February 2020 until dismissal. His sickness entitlement had reduced to nil pay by the date of termination. It found that he had been employed for six complete years, so his statutory minimum notice entitlement under section 86 ERA 1996 was six weeks.

Applying section 87(4) ERA 1996, the tribunal held that because the contractual notice period was more than one week longer than the statutory minimum notice period, sections 88 to 91 ERA 1996 were disapplied. The tribunal relied on The Scotts Company (UK) Ltd v Budd for the proposition that, in those circumstances, the claimant was entitled only to the amount he was actually in receipt of during the notice period rather than his normal pay.

On that basis, the respondent was not in breach of contract in failing to pay normal pay in lieu of notice. As the claimant was in nil pay at dismissal, his notice pay was nil, and the breach of contract claim was dismissed.