Ms L McKay v Heritage Funeral Services Ltd — 2024

Ms L McKay worked for Heritage Funeral Services Ltd in two spells. The written terms signed in July 2022 were treated as governing the second spell as well, although no new written contract was issued when she returned in October 2023. By the termination date, the parties agreed that she had taken five days of holiday in excess of her accrued entitlement, so the respondent was entitled to deduct five days' pay on that account. The remaining wages issue was whether the respondent could also withhold two days' pay for work done between 1 and 9 February 2024 by reference to a verbal arrangement about repayment of a £400 embalming exam fee.

The tribunal accepted Ms McKay's evidence about that arrangement and held that the exam-fee agreement did not authorise the February 2024 deduction under section 13 ERA 1996. The deduction of £184.62 gross was therefore unauthorised. The tribunal also rejected any suggestion that the respondent's earlier failure to recover the exam fee when the first spell ended amounted to a waiver or implied variation that would make the February deduction lawful.

On the notice issue, the tribunal preferred Ms McKay's account of the 9 February 2024 conversation. It found that she attended work intending to give one month's notice of resignation, but that Mr D, angered by a reference request from Glasgow University, told her she could leave or he would dismiss her, said she was not welcome in the building, and gave no explanation of the alleged gross misconduct. The tribunal held that the departure was not a consensual resignation and that the respondent really terminated the contract on 9 February 2024.

The tribunal found no proved gross misconduct or other repudiatory breach that would justify dismissal without notice. The contractual notice provision in the written terms required one month's notice, so the respondent was liable for breach of contract when it dismissed her without notice or payment in lieu. Damages were assessed at one month's net pay, calculated as £2,000 less about £74.10 tax and £95.20 employees' national insurance, giving £1,830.70. The tribunal also held that Ms McKay had not failed to mitigate her loss, given her imminent University of Glasgow role and the short period to 8 March 2024.