E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4103155/2023 (V)5 Held at Aberdeen on October 2023 Employment Judge N M Hosie Ms Amie Thomson v South River Property Ltd st and 1 other — 2023

The tribunal found that Portland Hotel Trading Ltd was the claimant's employer after a TUPE transfer on 18 March 2023 and that the claim against South River Property Ltd should be dismissed. The claimant had been employed at the Portland Hotel since 1 March 2019 as Head Waitress, with some reception and office duties, and she retained continuity of employment from that date.

At the 22 March 2023 staff meeting, the tribunal preferred the claimant's evidence that she was told staff would be contacted to discuss roles and contracts, and that she expected to be called in to sign her contract and watch a health and safety video. The tribunal accepted that she did not receive that contact, that she tried to telephone the hotel and visited on 25 April 2023, and that her emails of 28 April and 8 May 2023 showed she intended to continue working. The tribunal rejected the respondent's view that she had no intention of returning.

The tribunal held that the claimant was effectively dismissed on 17 April 2023 when Mr Harling filled her role after she did not report for work that day. Applying s.98(1) to s.98(4) of the Employment Rights Act 1996 and the guidance in British Home Stores Ltd v Burchell, the tribunal found that although the respondent believed she had not intended to return, it had no reasonable grounds for that belief and carried out no meaningful investigation. It also found no compliance with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The dismissal was therefore unfair.

On wages, Mr Harling accepted that the claimant should have been paid £240 per week for the four-week period from the transfer on 18 March 2023 until dismissal on 17 April 2023. The tribunal awarded £960 for unlawful deductions from wages. For unfair dismissal, it awarded a basic award of £1,200 and a compensatory award of £4,220, made up of £3,720 for 15.5 weeks' lost earnings and £500 for loss of statutory rights, giving a total monetary award of £5,420.