Ms L Slesser v In-person Ayian Ltd — 2026

The tribunal upheld Ms L Slesser's unfair dismissal and wrongful dismissal claims against Ayian Ltd. It accepted that she had worked continuously as a retail sales assistant at the petrol station in Ellon since October 2022. When Ayian Ltd took over on 29 April 2025, the undertaking retained its identity, operating from the same premises with substantially the same activities and workforce. Her employment transferred under TUPE with continuity preserved. The absence of employment records from previous operators did not displace the tribunal's finding that she had more than two years' service when dismissed on 10 September 2025.

The tribunal accepted that capability was the reason for dismissal and that the respondent genuinely believed her performance was unsatisfactory. There was objective material supporting its concerns: she had made no progress with 12 mandatory training courses and scored five out of ten in an age-verification refresher test. However, the respondent did not clearly identify the improvements required, give a formal warning that dismissal was contemplated, or provide a structured opportunity to improve with an adequate review period. It gave insufficient consideration to further support or training. Dismissal without these safeguards fell outside the range of reasonable responses and was procedurally unfair.

The claimant had more than two but less than three years' continuous service and was entitled to two weeks' statutory notice. She was dismissed with immediate effect and received only one week's pay in lieu. The tribunal awarded £253.85 in damages for wrongful dismissal, representing the remaining week's gross pay. It also awarded £761.55 as the unfair dismissal basic award, calculated using two complete years of service, a multiplier of 1.5 because she was over 41 during the employment, and gross weekly pay of £253.85.

The tribunal found that the claimant had acted reasonably in seeking replacement work and had not failed to mitigate her loss. Earnings from her existing second part-time job were not treated as mitigation. To avoid overlap with notice damages, unfair dismissal losses were calculated from 24 September 2025. Using net weekly pay of £186.92, the tribunal assessed past loss over 36 weeks at £6,729.12 and future loss over 12 weeks at £2,243.04. It added £250 for loss of statutory rights, producing £9,222.16 before adjustments.

Applying Polkey, the tribunal assessed a 50% chance that a fair capability dismissal would have occurred within 12 months, taking account of the performance evidence, the claimant's response to concerns and the prospects of improvement. It reduced compensation accordingly, then applied a 25% increase for the respondent's unreasonable failure to comply with the ACAS Code of Practice on Discipline & Grievance. The resulting compensatory award was £5,763.85. A further £507.70, equivalent to two weeks' pay, was awarded under section 38 Employment Act 2002 for failure to issue written employment particulars. The four ordered payments total £7,286.95. Recoupment did not apply because the claimant had not received relevant benefits.