Mrs LM Fownes v Allison Cundell trading as Cut n Curl — 2021

Mrs LM Fownes was dismissed by Allison Cundell trading as Cut n Curl on 24 July 2020 after the salon reopened from the first Covid lockdown. The tribunal accepted that the respondent was facing significant operational and financial change, that the salon had moved to a model in which stylists shampooed their own clients, and that there was a genuine redundancy situation within the meaning of s.139 ERA 1996. It also said the same business changes could in any event amount to some other substantial reason, but those findings did not make the process fair.

The ordinary unfair dismissal claim succeeded because the tribunal found the process fell outside the band of reasonable responses. The claimant was told the consultation period could be extended, but the respondent then ended consultation without holding a further meeting and refused the appeal. The tribunal held that this procedural unfairness made the dismissal unfair under s.98(4) ERA 1996. It applied a Polkey reduction and found that, even with a fair process, the claimant would still have been dismissed after at most two further weeks, so compensation was limited accordingly. The tribunal said the claimant had received a statutory redundancy payment, so no basic award was due, but it awarded £500 for loss of statutory rights.

The automatic unfair dismissal claims under s.104(1)(b) and s.105(7) ERA 1996 were dismissed. On the s.104 claim, the tribunal held that the claimant's objections to the draft June 2020 contract were queries and concerns about clauses on hours, overtime, pay and holiday, not an allegation that the respondent had already infringed a relevant statutory right. On the s.105 claim, the tribunal said Ms Boyle was not in a similar position to the claimant because she worked only very limited Saturday hours on a flexible basis, so the redundancy circumstances did not apply equally to her.

The unpaid holiday claim succeeded. The tribunal found that the respondent had used holiday entitlement from the 2020/2021 leave year to top up furlough pay, but there was no agreement to do that and no notice under regulation 15 of the Working Time Regulations 1998. It accepted the figures on the payslips for June and July and recorded the relevant holiday value as £283.80 gross. The notice-pay claim also succeeded: the PILON clause in the June 2020 draft contract was not enforceable because the claimant had not accepted the amended terms, so the respondent breached the existing implied contract when it paid notice in lieu.