Mrs Galini Anca White-Sansom v Atimes 2 Limited t/a The Dragon — 2021

The tribunal held that Mrs White-Sansom was an employee, not a zero-hours worker. It found she had worked the same 40-hour week from April 2016, that there was no evidence anyone else performed her work, and that the respondent could not produce a contract showing a different arrangement. On that basis she had standing to bring an unfair dismissal claim under s.94 ERA 1996.

The unfair dismissal and redundancy claims both failed because the tribunal found there was no dismissal at all. It accepted that, after the first Covid-19 lockdown, the respondent discussed the claimant's return to work and offered temporary alternative duties while the kitchen was not reopening initially. The tribunal found the claimant did not engage with those discussions, repeatedly wanted everything in writing, remained on furlough, stayed on the payroll, had not been issued with a P45, and had not been told that her employment was ending. The tribunal therefore found no dismissal within s.95 ERA 1996 and no redundancy situation under s.139 ERA 1996.

On holiday pay, the tribunal preferred the respondent's evidence that the claimant had taken pay in lieu of annual leave by agreement. It noted the respondent's grievance response identified dates on which annual leave had been taken, and found the claimant knew she had annual leave entitlement but had only raised the issue about four years into the employment. The tribunal concluded that no holiday pay was outstanding and dismissed that claim as well.