Ms J Shirlaw v Ascendant Leisure Properties Limited — 2022

At the outset of the hearing the claimant applied to amend her claim to add sex discrimination, equal pay and victimisation. The tribunal applied the Selkent amendment principles and refused the amendment, finding that the proposed claims were substantively different from the original unfair dismissal claim, were raised out of time on the morning of the hearing, and would prejudice the respondent by ambush. The case therefore proceeded only on the unfair dismissal issue.

On the facts, the claimant had been employed since 19 March 2019 and raised pay and progression with Mr Hammond in June 2021. After further management discussions, she emailed on 20 June 2021 saying she had finished her apprenticeship, wanted to continue as a setter if possible, and would move to team member shifts and freelance elsewhere. The tribunal found that this correspondence was part of ongoing negotiations about a change of role and contract, not a resignation, and that later emails and the meeting on 4 August 2021 also showed continuing discussions about a new role.

The tribunal found that Mr Hammond misinterpreted the claimant's position and that she had consistently said she did not intend to resign. It held that his email of 8 August 2021 terminating her employment amounted to a dismissal, and that the respondent had not advanced a potentially fair reason for dismissal. The unfair dismissal claim therefore succeeded under s.94(1) ERA 1996 and the tribunal concluded that the dismissal was unfair.

Remedy was not finally determined in this judgment. The tribunal said the claimant would be entitled to a basic award and notice pay if remedy were assessed, but it did not quantify any award. It noted the claimant's loss claim and indicated that, on the evidence then before it, loss of earnings would likely be limited to the period from 9 August 2021 to 19 October 2021, and invited the parties to seek a remedy hearing if needed.