In person For the v Respondent — 2023

Miss Foreman worked as a counter assistant from 13 January 2014. The tribunal found that, for the first part of the relationship, she was paid cash in hand without tax and national insurance deductions, and that My Plaice Gorleston Limited became her employer from 1 September 2016. It found that the later written contracts contained errors, including wrong employer details and statements that holidays were unpaid. The evidence also showed earlier disciplinary warnings in 2018 and 2020, and in November 2022 she had sickness absence, a return-to-work interview, and a disciplinary hearing on 21 November 2022, after which she received a first written warning and then resigned.

The constructive unfair dismissal claim failed. The tribunal accepted that Mr Bains had on occasions referred to her weight and suggested she should go to the gym, but it found those remarks were not calculated to destroy or seriously damage trust and confidence and were not the reason for resignation. It also found that the Facebook and sister's birthday allegations were matters raised only after resignation and could not have caused it. The tribunal rejected the claimant's evidence that she had been given a final written warning, finding instead that the document issued on 21 November 2022 was a first written warning. It held that managing genuine sickness absence by issuing a warning was not repudiatory conduct, and that the claimant resigned because she believed she could not be warned after producing a fit note.

The related breach-of-contract / notice-pay claim was dismissed, and the claims against Mr Bains were also dismissed because the tribunal found he was not the claimant's employer. The holiday pay claim succeeded only for the period after 1 September 2016. The tribunal applied the illegality doctrine to exclude the earlier cash-in-hand period, finding both parties were equally culpable. It held that, because the claimant had been told she was not entitled to holiday pay, the regulation 13 entitlement under the Working Time Regulations 1998 carried over until termination, but the additional 1.6 weeks under regulation 13A did not. Using a final hourly rate of £9.50, it awarded £227.50 for October 2016 to January 2017 and £4,550 for 2017 to 2022, making a total award of £4,777.50.