Mr P Burns v , Family Friend Recycled Packaging Ltd — 2023

The tribunal refused the claimant's applications to postpone the hearing and to amend the claim to add an Equality Act 2010 reasonable adjustments complaint, so the case proceeded on the original Employment Rights Act claims only. It found the claimant to be an honest and reliable witness. The respondent had reduced his hours from five days to three during the COVID-19 disruption in April 2020, then later to four days and back to three days, while another Class 2 driver remained full time. When a draft contract was presented in January 2021 stating that his hours were three days per week, the tribunal found that he challenged both the hours and the start date and did not agree to a permanent reduction or tacitly accept it.

On the unlawful deduction from wages claim, the tribunal held that the claimant's contract entitled him to payment for five days per week and that, from January 2021, the sums properly payable were still based on full-time hours. It accepted that he had initially agreed a temporary reduction, but found that he withdrew that agreement and then continued to protest informally and by grievance, so there was no implied acceptance of the change. Applying the section 13 ERA 1996 framework and the authorities on acceptance of contractual variation, the tribunal awarded 46 weeks of loss only, excluding the weeks when he was absent due to sickness, which produced a net award of £6,440.

On constructive unfair dismissal, the tribunal applied the Western Excavating, Malik, Lewis/Omilaju, Kaur and section 98 ERA 1996 approach and concluded that the respondent's conduct, taken cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence. It identified the attempted permanent reduction in hours without consultation, the failure to give a satisfactory response to repeated requests about restoring hours, the restrictive handling of the grievance accompaniment issue, the invitation to an unclear 'informal' meeting while that issue remained unresolved, and the disciplinary process that it considered overstated and inconsistently applied, including the PPE allegation and the treatment of other health and safety matters shown on CCTV. The claimant resigned in response, so the dismissal was unfair. In remedy, the tribunal made a basic award on 12 years' service, refused any reduction for conduct, declined any future loss award, and allowed eight weeks' past net loss plus loss of statutory rights; the written reasons state £7,434 as the basic award and the compensation section refers to £500 and £2,808, although the operative paragraph records compensation of £10,732.