Mr D Cannon v Allma Construction Ltd — 2018

Mr D Cannon was employed by Allma Construction Ltd as a Plant/Machine Operator from 3 February 2017 under a contract that required one week's notice. His employment ended on 12 April 2018. The tribunal preferred the evidence of Mr Gerald Rea and Mr John Barr that Mr Rea told the claimant the respondent would pay one week's pay in lieu of notice the following week if he stayed until the end of his shift, and that there was no express contractual right allowing payment in lieu to be withheld or made conditional in that way.

Applying the authorities cited in the judgment, including Delany v Staples, Morrish v NTL Group Ltd and Gunton v Richmond-upon-Thames BC, the tribunal held that terminating the claimant's employment without notice while offering conditional notice pay was a repudiatory breach of contract. The claimant finished the task he was working on and left the site at about 2pm on 12 April 2018, which the tribunal treated as a reasonable and prompt acceptance of that repudiation. The tribunal awarded damages of £680.55 gross, representing one week's normal wages, subject to lawful deductions for tax and employee National Insurance if required.

The overtime claim was dismissed. Although the claimant thought he may have worked 42 hours in the final week, he could not identify the extra hours. The respondent's weekly allocation sheet and payroll evidence showed he worked 40 hours and was paid £698 gross for that week, including the overtime hour at his normal hourly rate of £17.45, so there was no unlawful deduction from wages.

The holiday pay claim was also dismissed. The tribunal found the respondent's holiday year ran from 1 January to 31 December, that the claimant was entitled to 29 days' paid holiday per year, and that by the date of termination he had accrued 8.1 days but had taken 10 days, including 5 days during the New Year shutdown and 5 days during the Easter shutdown. On that basis, no accrued but untaken holiday remained unpaid at termination.