Velizar Kosev v Not present but written representations Secur-it Group Ltd — 2021

This was an open preliminary hearing before Employment Judge Russell Bradley in a case brought by Velizar Kosev against Secur-it Group Ltd. The hearing was convened to decide whether the claimant had the two years' continuous service needed for an unfair dismissal claim, which turned on the effective date of termination. The tribunal noted that the claimant had presented claims of unfair dismissal and redundancy payment, and had also referred in his ET1 to other payments and furlough payments, but those substantive claims were not decided at this hearing.

The tribunal found that the claimant started work in May 2019 and later moved to work at Jenner's department store in Edinburgh. It accepted that there were WhatsApp exchanges in early March 2021 about pay and the closure of Jenner's. On 5 March 2021 Mr Mcleod told the claimant that the next pay run would be his last payment because Jenner's was closing and the respondent could not keep him on furlough. The tribunal held that this message was not notice terminating the contract: it was ambiguous, it referred to payment rather than termination, later messages made the position less certain, and it did not comply with the contractual provision for four weeks' notice.

The tribunal also rejected the respondent's argument that the claimant's effective date of termination was 14 March 2021. It held that the respondent's P45 and internal records did not resolve the issue, and the respondent's exhibit did not capture the whole series of messages. At the same time, the tribunal said it could not accept the claimant's asserted date of 15 June 2021, because there was no evidence supporting that date and no basis to infer it merely from the date on which ACAS became involved. The tribunal therefore held only that the effective date of termination was not 14 March 2021 and that the issue remained live for the final hearing.

The judgment directed that a final hearing should be fixed to consider all issues, including the claimant's effective date of termination. It also recorded that the claimant no longer resided in the United Kingdom and that the parties should be asked to confirm they remained able to take part by video when the case is relisted.