: J Smillie A Shanahan Mr Hisham Hassan v Group Employment Services Limited — 2021

The claimant was employed as a security officer from 2004 and, after the respondent took over the site contract in 2018, he worked at Longmore House and also covered lunch breaks at Exchange Place. When the pandemic began he went off sick on 24 March 2020. He later learned that Exchange Place had closed and that the two receptionists he compared himself with had been furloughed. The tribunal accepted the respondent's evidence that the claimant was Security Industry Authority registered, that alternative work existed for registered staff, and that the unlicensed receptionists were in a different position because the respondent had no other unlicensed work for them. The holiday pay claim had been settled and withdrawn before the hearing.

On the dismissal issue, the tribunal held that the claimant's emails of 5 and 6 July 2020 were clear and unambiguous resignations. Applying the ordinary rule that unambiguous words of resignation may be taken at face value, and section 95 of the Employment Rights Act 1996, it found that the claimant resigned and was not dismissed. The unfair dismissal claim therefore failed. The related breach of contract claim for additional notice pay also failed, because the claimant had already been paid the four weeks' notice required by his own contract, and the 12-week statutory notice point only applied where the employer terminates the contract.

The wages claim, which was framed around furlough pay, also failed. The tribunal found the claimant was not placed on furlough, had no automatic entitlement to furlough, and did not work in the period concerned because he was initially absent through sickness, then assumed he would be furloughed, and later declined shifts until the grievance process had finished. It held that no wages were properly payable for that period and therefore no unlawful deduction had occurred.

In the discrimination claims, the tribunal applied the burden-of-proof approach discussed in Igen, Madarassay and Hewage. It found that the two white female receptionists were not valid comparators because they were not SIA registered and were in materially different circumstances. The tribunal concluded that the claimant had not shown race or sex as the reason for the furlough decision, and it separately rejected any suggestion that the alleged dismissal was discriminatory because it had already found there was no dismissal at all. On victimisation, the tribunal accepted that the grievance appeal could amount to a protected act, but it held that the non-furlough decision predated that act and that the claimant had not established a retaliatory detriment. The equal pay claim failed because the receptionists carried out a broader, proactive role, whereas the claimant's lunch-cover duties were narrower and reactive, so the work was not like work.