Mr Adam Burton v Aldenham Social Club Ltd — 2022

The tribunal held that the claimant was an employee and that the furlough arrangement in April and July 2020 was an agreed variation to the contract. By 14 July 2020 there was no longer any obligation to provide the claimant with his former regular Saturday shift while the bar was closed, but there was a contractual obligation to contact him and offer such work as was reasonably available when work returned.

When the bar reopened in September 2020 and again from 21 May 2021, the respondent did not offer the claimant any shifts, although other part-time staff were offered work. The tribunal found that this breached the work-offer term and, taken with the failure to respond properly to the claimant's repeated enquiries about his employment status, amounted to a breach of the implied term of trust and confidence. It held that the claimant's email of 1 July 2021, sent by his partner with authority, was a resignation in response to those breaches and that he had not affirmed the contract.

The tribunal found that the reason for the dismissal was redundancy, in the sense that the need for work of the kind the claimant had done had diminished during the COVID-19 pandemic. However, it held that the dismissal was unfair under s.98 ERA 1996 because work was available, other staff were offered shifts, the claimant was not kept informed or meaningfully consulted, and his attempts to clarify his position were not answered. It also rejected any Polkey argument on the basis that a fair process would still have led to the claimant being left without work.

The tribunal further held that the claimant was dismissed without notice and was entitled to damages for wrongful dismissal, to be assessed at the later remedy hearing. It also found that the claimant's holiday pay claim under the Working Time Regulations was well founded, with the amount and any associated issues left for the remedy hearing.