Member L Brown Tribunal Member M McAllister Ms C Hernandez v Represented by Mr L McKay, Trainee Solicitor Evolve Accountancy Limited — 2022

The tribunal found that the claimant, a Chartered Accountant, was an employee of the respondent from 1 August 2016 to 31 March 2021. It rejected the respondent's late attempt to contest employee status and found that the parties had agreed in principle from January 2021 that the claimant would leave on 31 March 2021, but the exit was conditional on a number of matters being agreed and implemented, including the transfer of the Evolve brand, software and client-related arrangements. Not all of those matters were resolved, and the tribunal found that the eventual departure was not mutually agreed on the terms originally envisaged.

On liability, the tribunal held that the claimant was dismissed on 31 March 2021 and that the dismissal was unfair. It found that the respondent had not established a fair reason within section 98 ERA 1996, and in particular had not shown some other substantial reason. It also recorded that, even if the claimant had resigned, the facts would have amounted to constructive dismissal because the respondent had failed to implement the agreed departure terms. The tribunal noted the absence of any fair process or appeal and the lack of notice as further reasons why the dismissal was not reasonable under section 98(4) ERA 1996.

The tribunal held that the claimant was entitled to four weeks' notice under section 86(1)(b) ERA 1996, but she was not given notice or paid in lieu. It found that she was entitled to 24 days of annual leave per year on the parties' understanding, but it did not decide whether she had exhausted her accrued leave before termination, so that issue was left for the remedy hearing. It also found that the respondent had not provided a written statement of employment particulars under section 1 ERA 1996.

The claimant's email of 8 April 2021 was treated as a request for written reasons for dismissal, and the tribunal found that no compliant statement was provided. Under section 93 ERA 1996, the tribunal stated that the reason for dismissal was the breakdown of the claimant's working relationship with Ms Kerr, but the amount due for that claim was deferred to remedy. The tribunal also found an unlawful deduction from wages: £500 was withheld from the claimant's March 2021 salary on 31 March 2021 in relation to retained company equipment, and the quantum of any final award was also left to the remedy hearing.