Mylene Sofia de Ceita Santiago do Nascimento v SM Sparkling Services Limited — 2023

The claimant was employed by the respondent from 30 September 2019 to 25 July 2022 as a human resources manager for 20 hours per week at £9.10 per hour, rising to £9.50 per hour from 1 April 2022. The respondent did not attend or respond, and the tribunal proceeded on the claimant’s uncontested evidence and documents. It found that when the claimant contacted HMRC on 25 July 2022 she learned that she had been removed from the payroll, and that she then ceased making herself available for work. The tribunal held that removal from payroll was a repudiatory breach of contract and an effective dismissal under s.95(1)(c) ERA 1996, with no potentially fair reason shown under s.98 ERA 1996.

The tribunal upheld the claims for unlawful deductions from wages and holiday pay. It found that the claimant had been underpaid from October 2021 to July 2022 and calculated the award by reference to weekly pay of £182 until 31 March 2022 and £190 thereafter, producing £1,834.94. It also found that she had requested annual leave but was told she did not need to take it because she worked from home, and held that she was entitled to payment for untaken holiday on a pro rata basis of the statutory minimum 5.6 weeks per year. The holiday pay award was £2,997.20.

The tribunal upheld the separate breach of contract claim for notice pay, finding that the claimant was entitled to three weeks' notice, but the notice element was not separately awarded because it was included within the unfair dismissal compensatory award. It dismissed the breach of contract claim relating to pension contributions because, although the claimant said she wished to join the pension scheme in January 2020, she continued working without further protest and affirmed the contract on that issue. It also declared under s.8 ERA 1996 that the respondent had failed to provide itemised payslips for the specified months, and refused the 25% ACAS uplift because the grievance was raised after the effective date of termination. The total award was £7,222.14, comprising the unfair dismissal award, unpaid wages and holiday pay.