(sitting alone)10 Mr R Graham v Off-World Industries Ltd — 2022

The tribunal recorded that the claimant's unfair dismissal complaint and statutory redundancy payment claim had already been dismissed following withdrawal at a previous preliminary hearing on case management. The live issues at this hearing were breach of contract notice pay and unpaid holiday pay under the Working Time Regulations.

Mr Graham began work on 14 August 2020 as a kitchen supervisor on variable hours. He worked for about 5.5 weeks at an average gross weekly rate of £404, then went on sick leave and received SSP at £95.85 per week until late October 2020. The respondent then moved him to furlough pay at £315.85 per week. The tribunal accepted his evidence that he sent Planday messages and GP certificates during this period, and that he also sent a text on 28 April 2021. It rejected Mr Meiklejohn's evidence insofar as he denied those communications.

On the notice claim, the tribunal held that the respondent did not dismiss the claimant on 19 July 2021 or at all. Applying Gisda Cyf v Barratt and Sandle v Adecco UK Ltd, it found Mr Meiklejohn's email of 19 July 2021 did not communicate dismissal, because it said only that there were no additional hours available 'at this time', the claimant was on a zero-hours contract, and no rota had been issued. The tribunal also found the claimant had not resigned earlier by failing to attend while he remained signed off and reasonably believed he was still on furlough. It held that the employment ended on 31 July 2021 when he took up new employment, which was incompatible with continuing employment on the terms he understood. The breach of contract notice pay claim therefore failed.

On holiday pay, the tribunal held that the unsigned written contract had been accepted by conduct and was a relevant agreement fixing the holiday year at 1 January to 31 December. It found no annual leave had been properly notified or taken in 2021, the contract's closure paragraph did not validly displace Regulation 15 notice requirements, and the £46.66 January 2021 top-up did not mean the leave had been used up. It calculated that 3.3 weeks accrued in 2021 and 1.5 weeks of basic entitlement carried over from 2020 remained payable, used an average weekly pay rate of £404 rather than SSP or furlough pay, and awarded £1,535.20 less £46.66, resulting in £1,488.54 gross.