Mrs I McRitchie v Represented by: Mrs C Keith Representative Cunningham Brora Limited — 2020

The tribunal found that Mrs I McRitchie was employed by Cunningham Brora Limited, not by Mr Anees Akhtar personally, and dismissed the claim so far as directed against him. It accepted the claimant's evidence on the key disputed facts, including that she had worked from 6 March 2013, that her work had increased to 18 hours over six days from 2015, and that the respondent had not provided a written statement of particulars or reliable records of hours, holidays or pay. The tribunal also found that the respondent's payslips were inaccurate and that the claimant's evidence on pay was more reliable than the respondent's account.

On 15 April 2019 the claimant was told that she would no longer continue in the same driving role because the car would not be repaired and another worker had been engaged to drive. The tribunal held that the proposed 50% reduction in hours and the offer of a materially different role, without warning or explanation, breached the implied term of trust and confidence and amounted to constructive dismissal under section 95(1)(d) ERA 1996. It accepted that the dismissal happened on 15 April 2019. The respondent's reason was that it could not afford to repair the vehicle and wanted someone who could provide their own car, which the tribunal treated as a potentially fair SOSR reason, but it found the dismissal unfair under section 98(4) because there had been no genuine consultation and the decision had effectively already been made.

The tribunal also held that the respondent had been in repudiatory breach of contract, so the claimant was entitled to six weeks' notice, assessed at £888.84. It found that she had 8.5 days of accrued holiday under the Working Time Regulations 1998, worth £1,259.19, and that the respondent had made unlawful deductions by underpaying the national minimum/living wage from April 2017 until termination, totalling £4,018.56. It considered a compensatory award under section 123 ERA 1996 but made none, taking account of the claimant's recent lack of job-seeking, physiotherapy and caring responsibilities, and the fact that the business had been sold to a third party in October 2019. The overall award was £7,499.85, made up of the basic award, breach of contract damages, holiday pay and unlawful deduction from wages.