Ms C Duncan v O’Connors Contracts Ltd (in voluntary liquidation): 2301295/2024
JUDGMENT
[1]The complaint of breach of contract is well-founded.[2]The respondent is to pay the claimant outstanding notice pay of £459.44 net.REASONS
[1]The claimant has claimed breach of contract following the termination of his employment. The respondent has not submitted a response. By letter dated 5 February 2025 the claimant requested that there be a determination on the papers.[2]The claimant provided the following documents in support of his claim:2.1 A disclosure bundle of 71 pages (the page references below are to the pages in this bundle).2.2 A witness statement from the claimant of 2 pages.2.3 A schedule of loss.Factual Background
[3]The claimant was employed by the respondent as an apprentice between 9 January 2023 and 8 September 2023. He was employed on a permanent contract. The contract contained the following clauses on termination of employment: pg 383.1 Clause 59: ‘Where the Employee has breached any reasonable term of this Agreement or where there is just cause for termination, the Employer may terminate the Employee's employment without notice, as permitted by law.’ (my emphasis).3.2 Clause 60: ‘The Employee and the Employer agree that reasonable and sufficient notice of termination of employment by the Employer is the greater of four (4) weeks and any minimum notice required by law’.[4]On 8 September 2023 the claimant was informed that his contract was to be terminated ‘due to market conditions’. He was paid for the month of September and therefore received 3 weeks’ notice pay.[5]On 6 November 2023 the claimant commenced early conciliation, he received the early conciliation certificate on 18 December 2023: pg 1. On 13 January 2024 he submitted his claim form: pg 2. Legal Background[6]An employment contract can be terminated by dismissal. A breach of contract claim may arise where an employer has failed to give the required notice of termination.[7]Where there is an express contractual term as to notice this will apply, provided this is not less than the period of notice required by section 86 of the Employment Rights Act 1996 (after the employee has been employed for at least one month, one week, then one week for each completed year of service up to a maximum of 12 weeks). IConclusions
[8]The claimant claims that the respondent is in breach of contractual clause59. He says that there was no ‘just cause’ for the termination of his contract. In my view this clause does not apply since the respondent did not terminate the claimant’s contract without notice. In any event, had the respondent been in breach of this clause, the claimant would only be entitled to those damages that he would have received had the contract been properly performed, namely the notice period specified under clause60. It is important to note that clause 60 is not conditional on there being a ‘just cause’ for terminating the contract.[9]I accept that the respondent is in breach of contractual clause 60, in that the claimant was provided with three weeks’ notice instead of the minimum 4 weeks’ notice expressly provided for in the contract. He is therefore entitled to the outstanding one week’s notice pay of £423.07.[10]The claimant also claims loss of pension contributions during the whole of the notice period. I accept that the employer’s pension contribution is a consequential loss of the employer’s breach of contract and accept the claimant’s evidence that he did not receive this for the whole of the notice period of 4 weeks. The claimant’s schedule of loss states that the employer’s pension contributions was £52.54 per month, however his payslips suggest that this was the amount of the employee’s pension contribution and that the employer’s contribution was the slightly lesser amount of £39.40 per month (£9.09 per week): pg 71. Therefore he is entitled to four weeks’ outstanding employer pension contributions of £36.37.[11]Therefore the respondent is to pay the claimant the total of £459.44 net. Approved by: Employment Judge Hart 15 September 2025 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents.