Mr P Kinnear v Simple Comms Ltd — 2021

The tribunal held that Mr P Kinnear’s employment transferred from Xltec to Digital on 23 March 2015 for continuity purposes, and that his continuous employment therefore started on 5 June 2012, when he began work with Xltec. It preferred the claimant’s evidence, supported by a 2 April 2015 KPMG letter, the April 2015 payslip, and the fact that around 300 customer contracts and about 75% of Xltec’s employees moved across. The tribunal found the respondent’s evidence about a later transfer date and any gap in employment was unclear and did not accept it.

On that basis, the tribunal found that the respondent had underpaid statutory redundancy pay and notice pay because both had been calculated on only five years’ service. It calculated the claimant’s statutory redundancy payment on more than eight complete years’ service, with a total entitlement of £5,649 and a balance due of £1,614 after deducting the £4,035 already paid. It also held that the claimant was entitled to eight weeks’ notice, not five, and awarded £1,730.76 as damages for three weeks’ unpaid notice.

The tribunal also upheld the claimant’s wages claim for the period 1 to 26 June 2020. It found that although the claimant had agreed in March 2020 to furlough terms at 80% of salary, he had not been paid his salary for June 2020 when the proper due date was the last working day of that month. On the tribunal’s calculation, 26 days’ wages at the reduced gross monthly salary of £2,000 came to £1,709.50, and that amount was an unauthorised deduction. The separate £200 claim succeeded by consent as a breach of contract claim.

The holiday pay claim failed. The claimant had argued that he should be paid for leave he would have accrued if he had been allowed to work his notice period, but the tribunal held that regulation 14(2) of the Working Time Regulations 1998 did not extend to annual leave that would only have accrued after the termination date of 26 June 2020. It found there was no contractual entitlement to compensation for that future accrual and dismissed the claim.