Case 4107935/2020 · Employment Tribunal
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TopCase 4107935/2020 · Employment Tribunal
E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4107935/2020 (V)5 Held on 20, 21, and September and December 2021 Employment Judge N M Hosie Members A H Perriam J Copland Mr X Wang
The tribunal found that the claimant began working at the Hotel as an intern on 14 September 2018 and, looking at the whole picture, was an employee from that date. It held that he therefore had two years' continuous service by the effective date of termination, 7 October 2020. The tribunal rejected the suggestion that his dismissal was because he had failed to buy the Star Hotel; it found that the real reason was redundancy caused by the pandemic's impact on the Hotel business and the collapse in the work available for a Campaign Manager role.
Applying s.98 ERA 1996 and the redundancy provisions in s.139(1)(b), the tribunal found that there was a genuine redundancy situation. It accepted that the Hotel's requirements for Campaign Manager work had diminished and then ceased, and it treated the role as a stand-alone post. On fairness under s.98(4), and with reference to Polkey, it held that the consultation that took place was sufficient in the circumstances and that a pooling exercise with other employees was not required on the facts found. The tribunal also found that there was no obligation to furlough the claimant, given the Hotel's financial position and lack of foreseeable reopening, and dismissed the unfair dismissal claim.
The direct race discrimination claim under s.13 Equality Act 2010 was dismissed. The tribunal held that the claimant had not established facts from which discrimination could be inferred under the burden-shifting approach in s.136, and it accepted the respondents' evidence about the staffing pattern between July and October 2020. It was not satisfied that the claimant had been treated less favourably because of race, including in relation to furlough and work arrangements. The separate claim about inadequate rest periods under the Working Time Regulations was also dismissed for want of sufficient evidence and specification.
On money claims, the tribunal upheld the unlawful deduction from wages claim in relation to the £7,000 transferred by the claimant in March 2020. It found that this sum was paid in advance of wages, that £343.80 had been repaid, and that the balance of £6,656.20 remained due when furlough payments began. It rejected the alleged £615.80 deduction and found that the later £615.57 payment was an overpayment adjustment rather than an unlawful deduction. The tribunal also awarded £423.10 as the balance of statutory redundancy pay and £344 as damages for failure to give full notice. It found no further holiday pay due.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal accepted that the claimant had two years' continuous service from 14 September 2018, but found that his dismissal on 7 October 2020 was by reason of a genuine redundancy arising from the pandemic-related reduction in work and closure of the Hotel, and that the dismissal was not unfair. | Dismissed | — | — |
| Race discrimination | The claimant brought a direct race discrimination claim under s.13 Equality Act 2010. The tribunal found that he failed to prove facts from which discrimination could be inferred and accepted evidence that not all non-Chinese staff were furloughed and that some Chinese staff were working at the relevant time. | Dismissed | Race | — |
| Redundancy | The tribunal found that the claimant had two years' service and was therefore entitled to a further week's statutory redundancy pay. The award was for the balance of the redundancy payment due to him. | Upheld | — | £423 |
| Breach of contract | The tribunal awarded damages for breach of contract in respect of failure to give full notice of termination of employment. It found the claimant should have received two weeks' notice, not one, and calculated the award on the basis of net pay. | Upheld | — | £344 |
| Unlawful deduction from wages | The tribunal held that the claimant's 13 March 2020 transfer of £7,000 was an advance in respect of wages. After allowing for £343.80 repaid to him, the balance of £6,656.20 should have been returned when furlough payments began. The alleged further £615.80 payment was not proved, and the £615.57 payment on exit was treated as an overpayment adjustment, not an unlawful deduction. | Upheld | — | £6,656 |
| Holiday pay | The tribunal accepted evidence that the claimant had received holiday pay when employment ended and found insufficient evidence that any further accrued holiday pay remained due. | Dismissed | — | — |
| Working time regulations | The claim for inadequate rest periods under the Working Time Regulations failed for lack of evidence and specification. The tribunal accepted the respondents' evidence that the claimant was not required to work more than 48 hours each week. | Dismissed | — | — |
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