(sitting alone) Ms J Tominey v DX Recruitment Limited — 2018

Ms J Tominey brought a breach of contract claim, pleaded as wrongful dismissal, after DX Recruitment Limited terminated her employment on 16 October 2017 and did not pay the balance of her one-month notice period. The respondent accepted that the claimant had not been paid her full notice entitlement, but contended that she had committed gross misconduct and was therefore not entitled to notice pay.

The tribunal found that, after the claimant’s holiday in August 2017, performance concerns were raised. It accepted that she sought a Sage refresher course, which the respondent agreed to fund in full at a cost of £522, and that on 16 October 2017 Bibby reported that the monthly report had again not been submitted on time and that a £350 fine had been incurred the previous month. The claimant acknowledged the lateness, said she did not feel capable of completing the task going forward, and was told her employment was ending. She was paid for October 2017 but not for 1 to 15 November 2017.

In its findings, the tribunal accepted that important HMRC correspondence had not been brought to the managing director’s attention, including letters concerning Employment Intermediaries reports, CIS returns and underpaid PAYE. It also found that the claimant had failed to submit reports and returns timeously and had incorrectly handled invoice reconciliation and other accounting entries on Sage. These failures were held to breach her express contractual duties and her implied duty to take reasonable care and skill and follow reasonable instructions. The tribunal concluded that the extent and consequences of the failures amounted to a fundamental breach of contract, so the respondent was not bound to provide further notice pay. The claim was dismissed and no monetary award was made.