The Claimant was employed as a machinist in the Respondent’s embroidery business She ceased attending work on 19th March 2020 as a result of the pandemic when the demand for embroidered work wear dried up. A claim for furlough payments was made by the Respondent employer in accordance with the newly devised Coronavirus Job Retention Scheme. The respondent wrote to the claimant on 14th May 2020 announcing that they were letting staff go but giving them the option to carry on receiving furlough payments until the scheme expired. This was offered on the condition that employees provide an undated letter of resignation and confirmation that they would seek no recourse from the company when the furlough scheme came to an end. The claimant was informed that if she set up her own business (as she had previously indicated she might) during that time, she would inform the employer, and furlough payments would cease.
The Claimant returned an undated resignation letter as requested and confirmed her understanding of the effect of any self-employment.
The respondent activated the resignation letter on 31st July 2020 on the belief that the Claimant was operating as a self-employed machinist.
The Claimant brought a claim for unfair dismissal asserting that the dismissal was automatically unfair for failure to comply with the statutory process and also substantively unfair. She also pleaded constructive dismissal, failure to provide particulars; and unauthorised deduction of wages in respect of notice and holiday pay.
The Claimant’s case that this was a situation that should have been a redundancy, whilst the respondent stated that it was a consensual agreement to terminate her employment when she became self-employed.
In the process of deciding whether there had been a dismissal or a resignation, the tribunal found both parties to be lacking in credibility with inaccurate and untruthful accounts of events. Ultimately, it found that the Respondent had terminated the contract of employment and dismissed the Claimant because it was the Respondent that initiated, prepared and furnished the resignation letter to the Claimant. The Claimant did not offer resignation freely and the date of termination was left blank by the Claimant and decided by the Respondent without consultation. The absence of a date on the purported letter of resignation from the Claimant rendered it void. The onus remained on the Respondent to prove that the dismissal was fair, and it had failed to do so. There had been no semblance of a process of redundancy consultation or investigation and disciplinary process and the dismissal was unfair.
Not withstanding the Respondent’s denial that this was a redundancy situation the tribunal found that were it not for the furlough scheme the Claimant would have been dismissed as the Respondent had no work for the claimant as a result of the pandemic, nor did she have sufficient qualifying service for a redundancy payment. The tribunal was also disbelieving of the Claimant’s denials that she had started her own embroidery business. Nonetheless, the Claimant was awarded a 4 week gross pay basic award, loss of statutory rights, holiday pay, and a compensatory award of £1101. It also awarded a 10% uplift in recognition that Respondent had access to advice from an accountant and ought to have followed statutory procedure.
Read the full judgment here.