Mr Adrian Torres-Gomez Ms Fanny Claire Godfrin v ADKN Ltd — 2020

The tribunal dismissed ADKN Ltd's application to strike out Ms Godfrin's claim, finding that she had properly 'piggy-backed' on Mr Torres-Gomez's ET1 and that any irregularity had been waived or regularised. The respondent's challenge to the claims therefore failed at the outset.

On the facts, the tribunal found that both claimants had initially been enthusiastic about their work. It accepted that in December 2018 each worked an average of 21 hours' overtime a week, including 7 hours of paid Sunday work, and that by January 2019 overtime had fallen to 8 hours a week unpaid. The tribunal did not accept that they were coerced into working those hours and found that they had agreed to the extra work, albeit later regretted it.

The tribunal found that on 13 February 2019 both claimants resigned together and that the natural meaning of their emails, which said their resignations were 'effective immediately', was that they did not intend to work their contractual three-month notice periods. On that basis, the claims for notice pay were dismissed. The tribunal also found that the respondent's later emails purporting to dismiss them for gross misconduct were of no legal effect because the employment relationship had already ended by resignation.

The overtime claim failed because the tribunal held that the contracts required unpaid additional hours and that there was no contractual or common law basis for an overtime award. It rejected the National Minimum Wage claims because, on its calculations, the hourly rates paid in December 2018 and January 2019 were above the applicable minimum wage. The 48-hour working time claims also failed: the tribunal applied the 17-week averaging period under regulation 4 WTR 1998 and found an average of 46.3 hours a week, below the statutory limit.

The tribunal upheld both claimants' claims for accrued holiday pay and for 9 days' unpaid wages for 1 to 13 February 2019. It held that each claimant was owed 1.5 days' gross holiday pay less statutory deductions, and 9 days' gross wages less statutory deductions, with itemised payslips to be provided. The judgment did not quantify the final sums, recording instead that they were ascertainable by the parties and that an application could be made within 28 days if agreement could not be reached.

The respondent's counterclaims were dismissed. The tribunal found that it had not proved any loss or causation for alleged poor workmanship or for losses said to arise from the claimants' failure to work notice. It also rejected the clause 5.4 claim for three months' salary because no evidential basis was shown for treating it as a genuine pre-estimate of loss. The separate allegation against Mr Torres-Gomez concerning Eastman Staples also failed because the tribunal was not satisfied that the alleged call was made or that it caused the removal of machinery, and it was not persuaded that the tribunal had jurisdiction for that type of claim.