Mr Ogunbiyi For the v Mr Goldup (Consultant) — 2021

The claimant began work for the respondent on 2 November 2016 as a support worker and was suspended on full pay on 27 February 2019 while allegations of misconduct were investigated. A dismissal letter dated 25 March 2019 was drafted by the then sole director and countersigned by the deputy manager, but the tribunal found that it was not sent to the claimant. It took that view because there was no delivery evidence and, importantly, the claimant continued to receive monthly payments of £1,132.22 described as “AM Care Home Pay” until August 2020, which was inconsistent with a communicated dismissal in March 2019.

The tribunal accepted that the claimant contacted Siva Dharmalingam on a number of occasions between March 2019 and August 2020 and was told that the investigation was still ongoing. After Siva Dharmalingam died in August 2020, the claimant did not receive a payment in September 2020 and queried this with Angappan Dharmalingam. On 14 October 2020 the respondent’s accountants wrote enclosing a P45 showing a leaving date of 1 June 2019 and saying the claimant’s last pay date was 31 March 2019, while also asserting that later payments were loans from Siva Dharmalingam. The claimant challenged that letter through her representative, and the accountants replied again on 6 November 2020, repeating that employment had ended on 31 March 2019 and that the post-March 2019 payments were not through payroll.

Applying section 13 of the Employment Rights Act 1996, the tribunal rejected the respondent’s case that employment had ended in March 2019. It found that any intended dismissal was not clearly communicated then and that the later conduct of Siva Dharmalingam was not consistent with a dismissal. The tribunal also rejected the argument that the claimant had been dismissed when she received the first accountant’s letter in October 2020, but held that the 6 November 2020 letter was clear and unambiguous and that, on receipt of it, the claimant could be in no doubt that the respondent considered her employment terminated. The tribunal therefore held that the claimant’s employment ended on 6 November 2020.

The claim for unlawful deduction from wages was upheld for the period 27 September 2020 to 6 November 2020, and the respondent was ordered to pay £1,489.30 within 28 days of the judgment.