Miss W Olszowiec v KPD Delivery Service Ltd — 2017

Miss W Olszowiec was employed as a cleaner from 1 September 2014, initially by DSL Express Aberdeen Ltd, then by KPD Delivery UK Limited, and later by KPD Delivery Service Ltd. The tribunal held that her continuity of employment was preserved under sections 218 and 231 of the Employment Rights Act 1996 and, independently, by relevant transfers under TUPE regulation 3(1)(a) and regulation 4. It relied on the evidence of common control by Ms Mazhari and Mr Sadri, the unchanged nature of the work, hours, pay and locations, and the May 2018 contract in which Mr Sadri returned the document with the start date left blank and the claimant wrote 01.09.14 by hand.

On dismissal, the tribunal accepted that redundancy was the principal reason and therefore a potentially fair reason, but held that the dismissal was unfair under section 98(4) ERA 1996 because there was no real consultation. The claimant was told on 7 January 2019 that she was at risk, then given email notice on 22 January 2019 terminating employment on 22 February 2019, while she was off sick. Applying Polkey v A E Dayton Services Ltd, the tribunal did not accept the respondent's case that the same outcome would have followed after a fair procedure, and limited the compensatory award to 20 weeks' loss because it found some failure to mitigate.

The tribunal awarded a statutory redundancy payment of £1,749.05, holding that the claimant's service counted from 1 September 2014. It also awarded £188.50 for unpaid Statutory Sick Pay and £891.31 for unpaid employer pension contributions. The notice-based breach of contract claim failed because the tribunal found the claimant had received the notice to which she was entitled under section 86 ERA 1996. The total award was £8,503.06, and the tribunal noted that no basic award was payable because it was subsumed within the statutory redundancy payment.