Mr Donnelly, Solicitor For v Total Auto Glazing Services Ltd — 2021

The tribunal found that Mr Patterson was an employee of the respondent from 2 April 2018. It accepted that he worked five days per week for £400, was paid directly by standing order, did not invoice the respondent, could not send someone else in his place, and was under the respondent's control. The tribunal rejected the respondent's descriptions of him as self-employed, part-time, or casual labour, and found there was no change in status when payslips began in April 2019.

On the dismissal evidence, the tribunal preferred the claimant's account over the respondent's inconsistent chronology. It found that he was furloughed from 30 March 2020, took annual leave for the first week of that period, and then told the respondent on 11 April that he had received an NHS shielding letter issued on 9 April. The tribunal rejected the respondent's case that his employment had ended on 11 April, relying in part on the 14 April text exchange in which the respondent asked whether he wanted his P45 and the claimant confirmed that he did not want to leave. It found that the effective date of termination was 8 May 2020, when the letter hand-delivered on that date confirmed dismissal without notice.

The tribunal held that the dismissal was unfair because the respondent followed no procedure and did not act within the band of reasonable responses. It noted that the first reference to capability came in the 5 May letter, that no disciplinary or capability process had been undertaken, and that the respondent could have explored options such as extending furlough. It also made alternative findings under s.100 ERA 1996, concluding that the claimant had been identified as clinically extremely vulnerable, had informed the respondent of the shielding advice, and had not refused to return to work of his own accord but had followed the NHS advice contained in the shielding letter.

The tribunal also upheld the claims for unpaid holiday pay and unlawful deduction from wages. It found that the claimant was entitled to statutory holiday entitlement, that the first week of furlough was taken as holiday and paid at full salary, and that wages due for the weeks commencing 19 April, 26 April and 3 May 2020 had not been paid. It left the amount of any holiday pay and wage-related award to a remedy hearing listed for 20 October 2021.