Case 4111726/2019 · Employment Tribunal
Miss L Gordon v Represented by:15 Mr Sylvester, partner Livi Express st and 2 others — 2021
- Case reference
- 4111726/2019
- Decision date
- 29 June 2021
- Jurisdiction
- Scotland
- Judge
- Employment Judge Jones
- Venue
- Edinburgh
Parties
4 namedKey findings
Tribunal's reasoningMiss L Gordon worked for Livi Express from January 2014 until 16 August 2019. The tribunal found that she worked continuously throughout that period, that she was paid cash weekly, that she never received a payslip or written statement of terms and conditions, and that she did not take annual leave during her employment. It rejected the respondent's attempt to argue that the contract was unenforceable for illegality. Applying the approach in Patel v Mirza and Okedina v Chikale, the tribunal found that the claimant did not knowingly participate in any illegal performance of the contract and that suspicions about tax and national insurance did not amount to conspiracy or participation.
On dismissal, the tribunal found that the claimant was not expressly dismissed, but that she was entitled to treat herself as constructively dismissed. It accepted her evidence that Mr Alcu looked through her personal phone messages without permission and then shouted at her, including words to the effect of 'shut up or you'll be next for the sack' and 'get to fuck'. The tribunal found those acts were repudiatory breaches of contract, that the claimant resigned in response to them, and that she did not delay in resigning. It therefore held that she had been constructively and unfairly dismissed. The tribunal did not accept the respondent's account that she returned to work after 16 August 2019, and it found no evidence that she contributed to her dismissal.
The wrongful dismissal claim failed because the tribunal found there had been no dismissal by the respondent and therefore no entitlement to notice pay. The tribunal awarded a basic award of £1,900, £500 for loss of statutory rights, and £5,961.28 for loss of earnings. It also awarded £4,256 gross holiday pay on the basis of the respondent's concession. For the section 1 ERA 1996 breach, it awarded the maximum four weeks' pay, recorded in the final order as £1,520, and it made a declaration of breach of section 8 ERA 1996 for itemised payslips but awarded no compensation for that breach. The final total award was £14,137.28.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal rejected the respondent's illegality defence, holding that the claimant did not knowingly participate in any illegal performance of the contract. It found that Mr Alcu read the claimant's personal messages without consent and then used threatening and aggressive language, including words to the effect of 'shut up or you'll be next for the sack' and 'get to fuck'. The claimant resigned in response and was constructively and unfairly dismissed; the award comprised a basic award of £1,900, £500 for loss of statutory rights, and £5,961.28 for loss of earnings. | Upheld | — | £8,361 |
| Wrongful dismissal | The tribunal found that the claimant resigned and was not dismissed, so the wrongful dismissal claim failed and no notice pay was due. | Dismissed | — | — |
| Holiday pay | The respondent conceded that the claimant was entitled to accrued holiday pay on termination for the last two years of employment. The tribunal ordered payment of £4,256 gross. | Upheld | — | £4,256 |
| Other | This was the claim for failure to provide a written statement of terms and conditions under section 1 ERA 1996. The respondent admitted the breach and the tribunal awarded the maximum four weeks' pay. The page 2 summary line gives £1,520.10, but the reasons and final order state £1,520. | Upheld | — | £1,520 |
| Other | The tribunal declared that the respondent breached section 8 ERA 1996 by failing to provide itemised payslips. No compensation was awarded for this breach. |
Remedy
Monetary award- Total award
- £14,137
- across all upheld claims
- Basic award
- £1,900
- statutory, unfair dismissal
- Compensatory award
- £6,461
- compensatory remedy recorded
Legal tests applied
11 references- s.95 ERA 1996
- constructive dismissal
- s.108(1) ERA 1996
- Patel v Mirza
- Okedina v Chikale
- knowledge plus participation
- s.1 ERA 1996
- s.11 ERA 1996
- s.38 Employment Act 2002
- s.8 ERA 1996
- Reg 14 Working Time Regulations 1998
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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