In person (via an interpreter) For 1st v Respondent — 2022

The claimant was an agency warehouse operative placed by Impact Recruitment Services Ltd at Howden Joinery Ltd. After the national lockdown and Howdens' decision to reduce agency labour, she was not one of the workers retained after 25 March 2020. The tribunal accepted that there was confusion about her status, but the majority found that she remained employed by Impact until 1 April 2020 and that the first respondent's email of about 30 March 2020 expressly contemplated that she could take other work while remaining employed.

On the unfair dismissal issue, the majority accepted the claimant's evidence that she did not request her P45 in the 1 April call and only asked for a copy of her contract and holiday pay. The majority found that this was not a clear and unequivocal resignation, that the first respondent was wrong to think she had resigned, and that the effective date of termination was 8 April 2020 when the P45 was sent. The reason for dismissal was a mistaken belief that she had resigned, which was not a potentially fair reason and made the dismissal procedurally and substantively unfair. Employment Judge Alliott dissented and would have found that the claimant requested her P45 and resigned on 1 April 2020.

The age discrimination complaints were dismissed. The tribunal found that Adrianna Smet was not a proper comparator for the July 2019 permanent vacancy because she had different skills, better English and office-based responsibilities. It found that any work allocated after the claimant returned from surgery was not less favourable treatment because there was no doctor’s note recommending light duties at that point, and that the alleged 'too slow and too old' comment arose in a workplace confrontation between people who did not like each other rather than because of age. The tribunal also found that the claimant's removal from shift after 26 March 2020 and the absence of furlough pay were not less favourable treatment and, in any event, were not because of age.

Remedy was not finally determined in this judgment. The tribunal recorded that contributory conduct, Polkey, and Acas Code issues would be considered at a resumed hearing.