ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4104264/2020 (P) Held at Edinburgh on and January 2021 Employment Judge: W A Meiklejohn Mrs J Rosiczka v Represented by: Ms A Kozlowska - friend Interpreter – Ms M Karwacka Mrs A Tadysz t/a Cappadocia — 2021

The claimant, Mrs J Rosiczka, was employed by the respondent's café/bistro business as a kitchen assistant from 1 August 2017. The respondent closed the business on 21 March 2020 because of coronavirus regulations. The tribunal found that the claimant was told on or around that date that she would be paid only if the respondent's CJRS application was successful, and that she would be taken back if the business reopened. When the claimant later said her circumstances had changed and she was unsure whether she could return, the respondent dismissed her by text message on 23 May 2020.

On unfair dismissal, the tribunal accepted that the respondent's need to know whether the claimant would return was a substantial reason for dismissal, but held that the dismissal was unfair because the procedure was defective. The claimant was not warned that her employment was at risk, the respondent did not enquire into her changed circumstances, she was not allowed to make representations, and no appeal was offered. Applying Polkey, the tribunal concluded that dismissal would have been inevitable if the claimant could not return to work, so it made a basic award of £250.56 but no compensatory award.

The holiday pay claim succeeded. The tribunal found that the claimant's statutory entitlement was 5.6 weeks under the Working Time Regulations 1998, but she had been paid only 2 weeks' holiday in each of her two complete years of service. It awarded 7.2 weeks' holiday pay, totalling £902.02.

The unlawful deduction from wages claim failed. The tribunal held that the claimant's contract continued during the closure, but that the parties had mutually agreed that there would be no work and no pay unless the respondent's CJRS application succeeded. On that basis no wages were properly payable between 21 March 2020 and 23 May 2020. Because the claimant succeeded in part and had not been given written particulars of employment, the tribunal also made an award under section 38 of the Employment Act 2002 in the lower amount of two weeks' pay, £250.56.