E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102768/2020 (A) Held on April 20215 Employment Judge N M Hosie Mrs A Duncan v Midbrae Inn Limited — 2021

The claimant worked first at the respondent's Hotel and then, from mid-November 2017, at the Midbrae Inn. The tribunal found that the agreed terms carried across to the Inn, namely a £12.50 hourly rate and a guaranteed 40-hour week, and that no written statement of employment particulars had been provided. In September 2018 Ms Davies told the claimant that, because of reduced trade, she was only being offered barmaid work at barmaid rates on zero hours, and the claimant's hourly rate was reduced to £9. The tribunal accepted that the claimant objected repeatedly and continued working under protest rather than agreeing to the variation.

Applying Rigby v Ferodo Ltd and Arthur H Wilton Ltd v Peebles, the tribunal held that the unilateral pay reduction was a breach of contract that could be pursued as an unlawful deduction from wages. It found that the claimant had not affirmed the contract by continuing to work, because she had made clear that she did not accept the reduced rate. On the evidence, the tribunal calculated an underpayment of £3.50 per hour for a 40-hour week over 78 weeks from October 2018 to 2 April 2020, and awarded £10,920 subject to deductions. It also found that holiday pay had been underpaid, accepting the claimant's calculation that she should have received £2,800 and had received £1,758.49, leaving £1,041.51 subject to deductions.

For unfair dismissal, the tribunal held that the claimant was dismissed when she received her P45 on 2 April 2020, not on the earlier leaving date shown on the P45. The respondent did not establish a reason for dismissal, and the tribunal also found there had been no consultation, so the dismissal was unfair under section 98 of the Employment Rights Act 1996. The written order states that the respondent must pay £2,000 for unfair dismissal, while the reasons later say the claimant was entitled to a £1,500 basic award and £400 for loss of statutory rights and that no compensatory award was made; the judgment therefore contains a small internal inconsistency on the remedy figure as written.