A Tinnion Mr Archibald McFarlane v T&C Bars Ltd. st and 1 other — 2022

Mr McFarlane had worked at Kelly's Bar since 15 October 2012. T&C Bars Ltd took over the premises in April 2017 and, when trading stopped during the Covid-19 pandemic, he was furloughed. The tribunal found that when Mrs Gallagher reopened the premises on 18 September 2020 as Delaney's Bar, using the existing fixtures and fittings and trading with the previous suppliers, there was a transfer of the undertaking or business and Mr McFarlane's employment transferred to her by operation of reg 4(1) TUPE. On that basis, the tribunal held that Mrs Gallagher, not T&C Bars Ltd, was the employer at the date of dismissal, and the claim against the 1st respondent was dismissed.

The tribunal found that on 21 September 2020 Mr Paul Gallagher, acting with Mrs Gallagher's authority, told Mr McFarlane there was no job for him and that there would be no permanent employees in the premises. It held that those words amounted to an express dismissal, and in any event would have given Mr McFarlane the reasonable impression that his employment had ended. The tribunal also found there had been no prior dismissal by T&C Bars or Mr Dobbin.

On the redundancy claim, the tribunal held that Mrs Gallagher had not proved the dismissal was not by reason of redundancy, so the statutory presumption in s.163(2) ERA 1996 stood. Using age 54, 7 years' continuous service and gross weekly pay of £255, it awarded £2,677.50 as redundancy pay. On the notice claim, it held that Mr McFarlane was entitled to 7 weeks' notice under ss.86(1)(b) and 86(3) ERA 1996 and awarded £1,652, calculated using net weekly pay of £236.

On holiday pay, the tribunal found that at dismissal Mr McFarlane had accrued 94.4 hours of unused statutory annual leave in the holiday year running from 1 March 2020 to 28 February 2021. As no payment had been made in respect of that entitlement, it awarded £642.61, calculated at £7.87 per hour. The total award was £4,972.11.