Mr A Balogun v Credentia Foods Ltd — 2023

The tribunal found that Mr Balogun had applied for and been approved 8 weeks' paid paternity leave while employed by Vodafone, and that the updated start date request was also approved by HR. It accepted that the leave was never rescinded before the Lakeside store transferred to Credentia Foods Ltd, so the entitlement to the booked paternity leave transferred under TUPE. The tribunal also accepted that Vodafone and then the respondent treated the leave as not authorised even though the leave had been booked and not cancelled.

On that basis, the tribunal held that the respondent failed to pay contractual paternity pay, wrongly described the absence as unauthorised, and started a disciplinary process when there was no proper basis to do so. It found those matters, individually and cumulatively, were a breach of the implied term of trust and confidence and were sufficiently serious to justify resignation. The tribunal applied the constructive dismissal principles in Western Excavating and the trust and confidence cases of Malik, Baldwin, and Leeds Dental Team.

The claim of constructive unfair dismissal succeeded. The unlawful deduction from wages claim also succeeded because the respondent had not paid the claimant his contractual paternity pay for 5 weeks and had no lawful reason for withholding it. The tribunal found the claimant resigned in response to those breaches, and noted that he had mitigated his losses by obtaining a job within 3 months of resigning.

In remedy, the tribunal awarded a basic award of £7,344.00, loss of statutory rights of £500.00, a compensatory award of £7,359.00, unpaid paternity pay of £2,830.45, loss of pension contributions of £1,221.90, and a 10% ACAS uplift of £1,191.14, producing a total award of £20,446.49. The tribunal also found there had been breaches of the ACAS Code because the facts had not been properly established before the respondent treated the absence as a disciplinary matter.