(sitting alone) Nicola Dignon v Paul Crolla t/a The Gold Sea Take Away — 2018

The claimant, Nicola Dignon, worked intermittently for Paul Crolla t/a The Gold Sea Take Away and, in her last period of employment, began work on 24 April 2016. She worked 16 hours a week, usually on Tuesdays and Thursdays, was paid £125.28 gross weekly, and was not provided with written terms. The tribunal found that she had a history of attendance difficulties linked in part to domestic issues, including a missed set of additional weekend shifts in April 2014 and further problems in late April and early May 2018.

The tribunal accepted that on 28 April 2018 the claimant left work early after becoming upset, that she attended on 1 May, and that she did not attend on 3 May because her daughter was unwell. At a meeting on 5 May 2018 the respondent told her that she could not simply work when it suited her and that he had had enough. He said he did not want her back in the shop but was not sacking her. The claimant was then told on 7 May, 9 May and 13 May not to attend her normal shifts, and she did not receive pay for the week ending 13 May 2018. After taking ACAS advice she wrote to the respondent on 24 May 2018 seeking a meeting, but he did not reply.

The tribunal held that it was the respondent, by his conduct in instructing her not to perform shifts and not paying her, who really ended the contract of employment. It therefore found that the claimant was dismissed on 13 May 2018 and that she had more than two years' continuous service, giving her the right not to be unfairly dismissed. The reason for dismissal was conduct, which was capable of being a fair reason, but the dismissal was unfair because the respondent adopted no procedural safeguards, made no proper enquiries, did not warn her that dismissal was being considered, and did not give her an opportunity to answer the case against her. The tribunal applied the range of reasonable responses approach and found the respondent's response fell outside it.

On remedy, the tribunal awarded 2 weeks' notice pay of £250.56 and a basic award of £250.56, reduced by 50% for contributory conduct to £125.28. It made no compensatory award because, even if a fair procedure had been followed, it considered it highly probable that the claimant would have been dismissed within her notice period, and because her own conduct materially contributed to the dismissal. The tribunal also recorded that the respondent had not complied with the ACAS Code of Practice, but said any uplift would have applied only to a compensatory award.