Mr Edward Johnston v MPMH Construction Limited — 2020

At the remote preliminary hearing on 18 September 2020, Employment Judge Ian McPherson considered the respondents' application for deposit orders under Rule 39. Mr Johnston said he had been dismissed on 3 April 2020 and sought notice pay, holiday pay and arrears; the respondents said he had resigned on 9 March 2020 on four weeks' notice, worked that notice, and was placed on garden leave from 3 April until his contract ended on 6 April 2020. The tribunal noted the separate ADG/right-to-be-accompanied code but did not make it the subject of a deposit order.

The tribunal made a deposit order in relation to the unfair dismissal allegation and the notice-pay / breach-of-contract head. It found the resignation email of 9 March 2020 to be clear and unambiguous, held that a resignation could not be withdrawn unilaterally, and said there was no material before it showing that the respondents had agreed to any withdrawal. It also found that the claimant had worked his notice and that being placed on garden leave was consistent with the contract rather than an immediate dismissal. The deposit was set at £250 per allegation, rather than the maximum £1,000, after the tribunal took account of the claimant's stated ability to pay and proportionality.

A further deposit order was made for the unlawful deduction from wages allegation and the working time holiday claim. The tribunal held that the claimed 2018 salary arrears were time-barred under s.23 ERA 1996 and s.23(4A), that the pension contributions point was also time-barred and appeared outside jurisdiction because pension contributions are excluded from wages, and that the holiday carry-forward claim failed because there was no evidence of an agreement to carry 2019 leave into 2020. It referred to regulation 13(9) of the Working Time Regulations 1998 and warned that failure to pay the deposits within 21 days would result in the relevant allegations being struck out.