Mrs E Harte v Mr Graham P Sharp and 1 other — 2022

Mrs E Harte worked at Armstrong's restaurant from 30 July 2012. The tribunal found that the move from Gadman Limited to Sharp Leisure Consultancy & Bar Services Ltd on 16 February 2019 was a TUPE transfer, so her continuity of employment from 2012 was preserved. It held that the 15 February 2019 letter from the insolvency practitioners did not break continuity, because any purported dismissal took effect after the second respondent had taken over, and Regulation 8 did not assist the respondents because relevant insolvency proceedings had not yet commenced.

The tribunal accepted that Mr Sharp made remarks capable of suggesting age-related attitudes, including asking the claimant how old she was, saying he did not want to give an elderly lady a kid's uniform, and referring to younger workers volunteering. That shifted the burden under the Equality Act, but the tribunal found that the dismissal itself was not because of age. It concluded that the real issue was a misunderstanding about whether the claimant would return to her old role and hours after furlough, and that Mr Sharp had instead offered three alternative jobs when the restaurant's opening hours were reduced.

The unfair dismissal claim succeeded because the claimant was dismissed by the sending of a P45 after she rejected the alternative roles, but the respondent had not followed a fair process. The tribunal found there had been no warning letter, no meeting to discuss possible dismissal, and no appeal. It also found that the dismissal was in a redundancy context and that the claimant's refusal of the alternative jobs was not unreasonable in the circumstances, so the redundancy claim succeeded, although no separate redundancy payment was made because that would duplicate the basic award.

On remedy, the tribunal awarded a basic award of £1,308 and a compensatory award of £528 for loss of earnings from 30 December 2020 to 30 March 2021, reduced by 50% on a Polkey assessment. It also awarded £872 for breach of contract in respect of notice. The tribunal did not make a separate award for furlough pay beyond the unfair dismissal compensation, and it took 4 November 2020 as the effective date of termination because that was when the P45 was received.