Case 4113764/2021 · Employment Tribunal
Claimant v Mr J P Singh and Mr W S F Nisar — 2022
- Case reference
- 4113764/2021
- Decision date
- 6 April 2022
- Jurisdiction
- Scotland
- Judge
- Employment Judge Sandy Meiklejohn
Parties
2 namedClaimant
Claimant
Respondent
Key findings
Tribunal's reasoningEmployment Judge Sandy Meiklejohn heard the case remotely on 21 March 2022. The claimant worked at Centre Cafe, Cumbernauld as assistant manager from February 2018. The tribunal found that the business transferred to the second respondent on 24 September 2021 within TUPE, that the claimant's employment transferred with it from JD Centre Caffe Ltd, and that there was no evidence of any transfer to NF Centre Cafe Ltd at the relevant time because that company had not yet been incorporated.
The tribunal found that the claimant was dismissed by the second respondent on or around 21 October 2021, when she was told that she was not on the books and that SSP would not be honoured. Because neither respondent had lodged an ET3 response and the second respondent did not show the reason for dismissal under section 98 ERA 1996, the dismissal was unfair. The tribunal awarded a basic award and a compensatory award, but no compensation for loss of earnings because it found the claimant could have returned to work if she had accepted the offer to speak to the second respondent, so she had failed to mitigate her loss.
The redundancy payment claim failed. The tribunal accepted that the dismissal engaged the section 163(2) ERA 1996 presumption of redundancy, but held that the presumption was rebutted because the second respondent had offered to take the claimant back if she came to speak to him, showing that the need for an employee to do the work had not ceased or diminished. It therefore found that the claimant was not entitled to a statutory redundancy payment.
The tribunal upheld the claims for breach of contract, unlawful deduction of wages and holiday pay. It awarded three weeks' notice pay of £771.00, unpaid wages and SSP of £468.97, and accrued holiday pay of £544.84. It also awarded £1,149.40 under section 38 of the Employment Act 2002 because the claimant had not been given a compliant statement of employment particulars and the tribunal considered it just and equitable to award the higher four weeks' pay amount. The monetary awards listed in the judgment total £4,383.61.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal found the claimant was transferred under TUPE to the second respondent on 24 September 2021 and was dismissed on or around 21 October 2021 when told she was 'not on the books' and would not be paid SSP. No ET3 was lodged, so the second respondent did not show a reason for dismissal under s.98 ERA 1996. The award comprised a basic award and a compensatory award limited to loss of statutory employment protection rights, with no loss of earnings because the claimant did not take up the offer to discuss returning to work. | Upheld | — | £1,449 |
| Redundancy | Although the section 163(2) ERA 1996 presumption of redundancy arose, the tribunal held it was rebutted because the second respondent had offered to take the claimant back if she came to speak to him, which indicated the need for an employee to do that work had not ceased or diminished. | Dismissed | — | — |
| Breach of contract | The tribunal treated this as a notice pay claim and awarded three weeks' net pay, based on the claimant's service of more than three but less than four years. | Upheld | — | £771 |
| Unlawful deduction from wages | The tribunal found the claimant had not been paid for the week commencing 27 September 2021 and had not received SSP for the period from 4 October 2021 to 21 October 2021. It accepted the calculated SSP figure of £211.97 and added the unpaid week's wages. | Upheld | — | £469 |
| Holiday pay | The tribunal found accrued holiday entitlement of 2.12 weeks on termination, with no carry-forward because there was no evidence that coronavirus made it not reasonably practicable to take leave. The award was based on the claimant's net weekly pay. |
Remedy
Monetary award- Total award
- £4,384
- across all upheld claims
- Basic award
- £1,149
- statutory, unfair dismissal
- Compensatory award
- £300
- compensatory remedy recorded
Legal tests applied
8 references- s.98(1) and (4) ERA 1996
- TUPE regs 3 and 4
- s.163(2) ERA 1996
- s.86 ERA 1996
- regs 13, 13A and 14 WTR 1998
- s.13 ERA 1996
- s.38 Employment Act 2002
- Rule 21 Employment Tribunal Rules of Procedure 2013
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.
How we got this data
Case essentials (reference, date, judge, venue, country, claim categories) are extracted from the structured metadata gov.uk publishes alongside each decision. Parties and monetary figures are extracted from the judgment PDF text. Key findings and per-claim outcomes require a second extraction pass that is not yet complete for this case — until then, the primary source linked above is the authoritative record. See full methodology.
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