Mr C Milsom (Counsel) For the v Respondent — 2023

The claimant began working for the respondent in December 2010 and received a written contract only in January 2012, which the tribunal found was defective in several respects and did not comply with s.1 ERA 1996. Although the claimant resigned in September 2016 to set up a cafe and was issued with a P45, the tribunal found that he continued to do ad hoc paid work for the respondent, remained on the payroll, and returned to full-time work on 24 July 2017. On that basis, the tribunal held that his employment was continuous and that there was no break in service between 2016 and 2017.

In 2022 the respondent introduced new template contracts after reviewing its documents for legal compliance. The claimant objected to clauses 5.3 and 21.2, which dealt respectively with changes to working hours and restrictions on outside work. After consultation and correspondence, the respondent refused the claimant's proposed amendments and dismissed him by letter on 30 May 2022, with an effective date of termination of 28 June 2022. The tribunal recorded that no formal re-engagement offer was made, although the dismissal process was described in the minutes as a fire-and-rehire exercise.

The tribunal found the unfair dismissal claim well founded. It accepted that the respondent had a sound business reason for reviewing its contracts and for seeking some flexibility in working practices, and it considered clause 5.3 capable in principle of justifying dismissal under s.98(1)(b) ERA 1996. However, it held that dismissal was unreasonable under s.98(4) because the claimant was seeking only a minor amendment, the clause as drafted went further than was necessary to meet the respondent's objective, and dismissal should have been a last resort. On clause 21.2, the tribunal was not persuaded that the respondent had established a sound business reason for a blanket restriction on outside work and, in any event, found dismissal unreasonable for the same general reasons.

On remedy, the tribunal treated the continuous service finding as meaning the claimant had 11 complete years of employment and calculated a basic award of £9,421 gross using 11 x 1.5 x £571. It awarded £4,788 net for wrongful dismissal, reflecting seven weeks' notice, and £3,540 gross for the failure to provide a statement of terms and conditions of employment, calculated as four weeks' pay. No compensatory award was made for unfair dismissal because the tribunal found the dismissal had been contributed to by the claimant's own actions. The total award was £17,749.