Ms L McKay v Heritage Funeral Services Ltd: 8000264/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000264/2024

Venue Glasgow

Hearing 30 August 2024

Between

Ms L McKayClaimant

Heritage Funeral Services LtdRespondent

Before

Employment Judge Murphy

Mr J Donnelly for respondent

Director for respondent

Date 3 September 2024

JUDGMENT

[1]The respondent has made an unauthorised deduction from wages contrary to section 13 of the Employment Rights Act 1996 (ERA) and is ordered to pay to the claimant the sum of ONE HUNDRED AND EIGHTY FOUR POUNDS STERLING AND SIXTY TWO PENCE (£184.62) in respect of unpaid wages in respect of the period from 1 to 9 February 2024.

[2]The respondent breached the claimant’s contract of employment in failing to give the contractual notice period of one month. The respondent is ordered to pay the claimant ONE THOUSAND EIGHT HUNDRED AND THIRTY POUNDS STERLING AND SEVENTY PENCE (£1,830.70) in respect of damages arising from the breach.

[3]The sum awarded in item 1 is expressed gross of tax and national insurance. It is for the respondent to make any deductions lawfully required to account to HMRC for any tax and national insurance due on the sums, if applicable. The sum awarded in item 2 is expressed net of tax and national insurance and shall be paid to the claimant without deductions.

REASONS

[1]This final hearing took place at the Glasgow Tribunal on 30 August 2024. The respondent (R) was represented by Mr Donnelly, a director of R. The claimant (C) is a litigant in person.

[2]During the preliminaries, C confirmed she brings a complaint of unauthorised deductions from wages. After discussion, she confirmed she claims arrears of pay referable to the period from 1 to 9 February 2024 when her employment terminated. R agrees that it did not pay C for work undertaken during this period under explanation that R says it was entitled to deduct sums in respect of(i) holidays taken beyond C’s entitlement on termination; and

(ii) a £400 sum paid in respect of an exam fee to which R was entitled to reimbursement. C disputes R’s right to deduct the exam fee.

[3]C also brings a complaint of breach of contract in respect of her one-month contractual notice period (wrongful dismissal). She says she was dismissed on 9 February 2024 without notice. R disputes there was a dismissal. Mr D says the employment ended on that date by mutual agreement. In any event, it is R’s case that, if there was a dismissal, it was entitled to dismiss without notice because C had committed gross misconduct. C refutes this.

[4]The issues for the Tribunal to decide in this case are:a. Did R make unauthorised deductions from C’s wages and, if so, how much was unlawfully deducted?

b. Did R dismiss C? i. If so, it is agreed C was not paid for her contractual notice period. Was C guilty of gross misconduct such that R was entitled to dismiss without notice or payment in lieu? ii. If not, what losses or damages did C suffer as a result of the breach?

[5]C gave evidence on her own behalf. Mr D gave evidence on behalf of R. Evidence in chief was taken orally from the witnesses. Each party had prepared a small set of productions and I was referred to documents from both sets when hearing evidence. Findings in Fact

[6]The following facts, and any further facts set out in the ‘Discussion and Decision’ section, are found to be proved on the balance of probabilities or have been agreed by the parties. The facts found are those relevant and necessary to my determination of the issues. They are not intended to be a full chronology of events. The First Spell of Employment: 7 July 2022 to 7 May 2023

[7]R is a limited company which provides funeral services. C was employed by R as an Embalmer. She was employed initially from 7 July 2022 to 7 May 2023 (the ‘First Spell’). When her employment terminated on 7 May 2023, she was issued a P45 and the parties agree that there was a break in employment. C left because she wished to take up an interesting and lucrative work opportunity in the Channel Islands with a third party. As it was known that the opportunity would be a temporary one, C and Mr D agreed to keep in touch with the intention that C would be re-employed by R in due course, when her work in the Channel Islands ended.

[8]When the First Spell began, on or around 7 July 2022, C and Mr D signed a written contract of employment (the ‘Written Terms’). Among other matters, the Written Terms confirmed that C’s salary would be £24,000, to be paid monthly. The Written Terms included the following clauses so far as relevant to the issues: Hours of work Your normal hours of work are 37 hours per week. These hours need to be flexible to suit the needs of the business… Holiday entitlement The holiday years year runs from 1 January to 31 December. Full time employees are entitled to 5.6 weeks holiday a year, inclusive of any bank / public holidays that they may be permitted to take, calculated at the rate of 1 / 52nd for each complete week of service remaining in the current holiday year. … Holiday Pay Payment for holidays will be at your normal basic rate under your terms and conditions of employment for your normal hours of work. On termination of employment, holidays will be calculated in proportion to the full entitlement. If you have taken less than this entitlement the surplus holiday pay will be added to your final pay. If you have taken more than this entitlement the excess holiday pay will be deducted from your pay. … Disciplinary procedure and rules Should your conduct or performance fall below the standards required then disciplinary action may be taken. This procedure is designed to help and encourage employees to achieve and maintain the company's standards of conduct and performance and should be looked upon as a corrective process. A more detailed explanation of the procedure and rules is contained in the employee handbook. … Notice periods … Notice to be given by the employer to the employee The Company has the right to serve notice of termination of your employment at any time in accordance with the notice provisions below. ... One month’s service but less than five years - one month. … Pay in lieu It is agreed that the Company may terminate your employment with immediate effect on notification that payment in lieu of notice is to be made to you. You shall not be entitled to any benefit other than pay in respect of any period for which payment in lieu is to be made.

[9]R published a handbook which contained a disciplinary procedure. That procedure provided for the provision of disciplinary sanctions including verbal warnings, written warnings, final written warnings and dismissal. It envisaged a disciplinary hearing and a disciplinary appeal process.

[10]In late November 2022, C and Mr D had communications about an expense associated with C sitting a practical exam of the International Examination Board of Embalmers. C believed the cost was £550 which she was struggling to afford. Mr D agreed that R would cover the cost on the basis that, if C left her employment within one year, she would repay the fee. The arrangement was not documented in writing. The actual fee for the exam was £400 which R paid on 31 December 2022. C sat the exam on 18 February 2023. When C’s employment ended at the end of the First Spell, there was no discussion about this expenditure, nor any other communication on the subject. Although the employment had ended within a year, R did not raise the issue nor make any deductions from C’s final pay in May 2023 in respect of the exam fee. C did not raise the matter either and did not repay the fee.

[11]C had a clean disciplinary record at the end of the First Spell of employment. After she left, at some time between 7 May and 2 October 2022, R employed another Embalmer called Matt Boyle (MB) to undertake the embalming work C had formerly done. The Second Spell of Employment: 2 October 2023 to 9 February 2024

[12]C took up employment with R again on 2 October 2023 and remained employed until 9 February 2024 (the ‘Second Spell’). She resumed the role of Embalmer. MB continued in his employment. Mr D envisaged that, with C’s return, MB’s duties would change and he would become more involved in driving duties but would be a backup Embalmer and would undertake embalming duties in the mortuary whenever C was sick or on holiday. Mr D discussed this with C.

[13]No new written employment contract or statement of particulars of employment was issued in relation to the Second Spell. It was never expressly discussed, but it was the mutual understanding of the parties that C would be employed under the same terms as those documented in the Written Terms (save in relation to the amended start date). C continued with the Embalming role. Her hours of work remained the same. Her salary remained the same. The arrangements regarding holidays and holiday entitlement remained the same.

[14]In January 2024, C took 7 days’ authorised holiday. C was paid in full for the month of January 2024. In February 2024, C worked on 1 -2 February and on 5 - 9 February (7 days in total). C did not receive any payment for the work undertaken in February 2024. C’s daily gross rate of pay was £92.31 per day (£24,000/ 260 working days).

[15]In January / February 2024, C was pursuing a new employment opportunity with the University of Glasgow. By 9 February 2024, she had received an offer of employment as a Lab Assistant in the University’s Veterinary College. The proposed start date was on or about 10 March 2024. On 9 February C attended work, intending to give one month’s notice of her resignation that day. Unknown to C at the time, the University had made contact with Mr D that morning to request a reference in connection with C’s employment offer.

[16]During the Second Spell, no disciplinary procedure had been initiated in relation to C and she had a clean disciplinary record. R had not given C any warning (formal or otherwise) that it was believed she was neglecting her duties or that her colleague, MB was undertaking duties which ought to have been undertaken by C. R had not given C any warning regarding her timekeeping. C had not neglected her embalming duties nor failed to fulfil her contractual hours during the Second Spell. Events on 9 February 2024

[17]On 9 February 2024, C arrived early at 7:20 am and set to work embalming a body. After she had completed this work, she went to the staff canteen where she was sitting at around 9.45 am when Mr D arrived. If MB had arrived and was working on embalming in the mortuary while she was in the canteen, C was unaware this was the case.

[18]Mr D entered the canteen and closed the door. Only C and Mr D were present. They had a conversation which lasted around 5 minutes. Mr D was angry because he had received the reference request for C that morning which had prompted his visit to speak to C. He began the conversation by saying to C: ‘We have a problem’ to which she replied, ‘Do we?’ He continued: ‘Yes. There’s two ways we can do this.’

[19]Mr D then explained that C could leave now or that he would dismiss her. He threatened that if she left, he would provide a reference but that otherwise he would dismiss her immediately. C said to Mr D that he was basically accusing her of gross misconduct and asked what it was she had done. Mr D didn’t explain why he proposed to dismiss C. He told her she wasn’t welcome in the building. He expressed his dissatisfaction at having received a reference request. He said to C words along the lines: ‘Do you think that’s fair? I think I’ve been fair with you, I asked to your face what your plans were.’ Mr D then told C to leave the building and refused her request to collect her belongings from the mortuary. He later sent these by post.

[20]C was upset when she left R’s premises. She spoke to her mother on the phone who recommended that she write down what had been said in the conversation. C did so shortly after the conversation took place.

[21]At 12: 51 that day, C sent the following email to Mr D: John, Undaunted by your unnecessary performance earlier today of you informing me that you would be dismissing me with immediate effect and you then escorting me off the premises without allowing me to collect my own possessions, I seek clarification on the following: You said you were dismissing me for “gross misconduct”, although you were unable to say what gross misconduct was, despite my repeated requests. My disciplinary record is spotless and you have never previously accused me of misconduct of any type at all. You had not commenced any sort of formal disciplinary process and I have not been given any opportunity to understand the allegations against me, to refute the allegation of gross misconduct, or to explain myself in any way at all. I am sure that if there had been any fair disciplinary process you would quickly have realised that this serious (but unexplained) allegation of gross misconduct is without any foundation whatsoever. It may be no coincidence that you have just received a reference request from Glasgow University, who have offered me an alternative post. That clearly made you inexplicably angry. It had been my intention to give you notice of my resignation today. I was fully prepared to work my notice period so that you had time to acquire a replacement embalmer and to ensure an orderly handover. My summary dismissal has pre-empted that possibility. I would be grateful if you could provide a clear and prompt answer to two important questions:(1) What is the alleged gross misconduct which supposedly justifies my immediate dismissal?

(2) Do you intend to pay me a lump sum in lieu of my contractual entitlement to notice? I categorically refute your allegation of gross misconduct. In the absence of gross misconduct, I am entitled to notice of dismissal, or a payment in lieu of notice. If you are unwilling to pay that sum, then I am prepared to enforce my rights …

[22]Mr D received the email but didn’t respond. C was paid no further monies by R whether by way of a payment in lieu of notice or otherwise.

[23]In the period after 9 February, C did not seek to have her start date with Glasgow University brought forward in light of her unexpectedly early availability. Around a week after 9 February, C contracted a bronchial infection. She had the illness for around 3 weeks. The symptoms were a cough. C liaised with the University regarding her fitness to attend work with them having regard to this infection. Because C was going to be working in the Virology department, a sterile environment, the University’s policy was that staff could not attend there while ill. This resulted in a brief postponement to C’s start date being agreed with the University which began around 13 March 2024. C did not look for other work in the intervening period.

[24]If C had remained in R’s employment, she would have given one month’s notice on 9 February which would have expired on 8 March 2024. She would have continued to attend work with R despite her infection and cough. R did not operate the same strict policy regarding ill employees staying away from work and C felt well enough to attend and perform her duties. Observations on the Evidence

[25]Many of the relevant facts were agreed between the parties or undisputed.

[26]There was a dispute in relation to the terms on which it was agreed that R would pay C’s embalming exam fee. Although this conflict was resolved in C’s favour, it is not one which ultimately affects the outcome for reasons explained in the ‘Discussion and decision’ section. C said it was agreed she would have to repay the fee if she left within a year. Mr D said he couldn’t remember much about what was said other than that the sum was to be repaid. He talked about a belief that normally in the profession, if someone leaves within three years, there was an ‘expectation’ that the sum would be paid back. I preferred C’s evidence regarding the parties’ conversation. Mr D’s account was vague and lacked detail. C’s recollection, on the other hand, was more specific. Given the financial implications for C as an individual, the discussion may have been more consequential and perhaps, therefore, more memorable to her.

[27]The principal factual conflict in the case concerned the conversation on 9 February 2024 and C’s conduct during the Second Spell in advance of that discussion. Again, I resolved this conflict in C’s favour. There were inconsistencies between Mr D’s account of the meeting and what was set out in R’s ET3, which he had prepared. In the ET3 he said he reminded C on the 9th February that she had taken more holidays than she was due and that she still had an amount of money owing in relation to an advance for the embalming exam. I asked Mr D during his evidence what discussion was had about monetary matters in relation to C’s outstanding pay, and he answered he didn’t have any conversation about that at all. In his evidence Mr D said that if C didn’t agree to go, the other option was gross misconduct because C had refused a direct instruction not to let MB embalm. When asked specifically if the words ‘gross misconduct’ were used, he said they probably were. However, in the ET3, R denied mentioning gross misconduct.

[28]As to C’s conduct during the Second Spell, there was a lack of any disciplinary records or any other formal documentation to support the seriousness with which Mr D says he regarded C’s conduct. He hadn’t initiated any formal process in accordance with R’s Handbook. There was no evidential support for Mr D’s account of C’s alleged insubordination which was curious, given the seriousness with which he said he viewed it.

[29]On the other hand, C’s account in her ET1 was consistent with her evidence to the Tribunal and also accorded with the detailed contemporaneous note she had made of the conversation on her mother’s advice, as well as the email she had sent to R a few hours later. On the balance of probabilities, I conclude it was not C’s conduct which prompted Mr D’s visit on 9 of February 2024, but his receipt of a reference request which had angered him. I preferred C’s account, both of the discussion at the meeting, and regarding the absence of any background warnings, instructions or criticisms of her work and conduct during the Second Spell. Relevant Law Unauthorised deductions from wages

Relevant Law

[30]Under the section 13 of ERA, a worker has the right not to suffer unauthorised deductions from her wages. “13(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer.”

[31]Section 14 sets out various deductions which are excepted where the right not to suffer unauthorised deductions does not apply. None of the circumstances are relevant to the present case. Sections 17 to 21 set out additional protection to retail workers and have no application to the present case.

[32]Under section 23 of ERA, a worker may complain to an employment tribunal that an employer has made a deduction from her wages in contravention of section 13. Where a tribunal finds such a complaint well founded, it shall make a declaration to that effect and order the employer to pay the amount of the deduction (section 24 ERA). Wrongful Dismissal

[33]In Riley v Direct Line Insurance Group Ltd

[2023] EAT 118

, HHJ Shanks summarised the issues and principles applicable in cases concerning asserted consensual termination at 23: “The authorities establish the following relevant propositions of law:(1) Whatever the respective actions of the employer and employee at the time when the contract is terminated, at the end of the day the question always remains the same: “Who really terminated the contract?” … The issue is one of causation.

(2) Termination of the contract of employment by the freely given mutual consent of both the employer and the employee is not a dismissal under section 95(1)(a) …

(3) The question how the contract was terminated is ultimately one of fact and degree and the tribunal must look at the realities rather than the form of the relevant transactions.

(4) Because of the consequences for the employee that flow from a finding of consensual termination the tribunal must be astute to find clear evidence that a termination was indeed free and consensual. Such a conclusion cannot apply if there is deceit, coercion or undue pressure, in particular if the employee is under direct threat of dismissal by the employer. Conversely, where there has been negotiation and discussion and an opportunity for the employee to seek legal advice, a consensual termination may properly be inferred.

(5) There is a distinction between an employee consenting to the termination of his employment and consenting to being dismissed by his employer. The latter analysis has often been considered appropriate in cases where employees volunteer for redundancy … but the existence or non-existence of a redundancy situation is not determinative.”

[34]If an employee is told 'resign or be dismissed' then this will be construed as a dismissal. The operative cause of the agreement must be the threat of dismissal, though the threat of dismissal need not be the only operative cause.

[35]Where an employee has committed a repudiatory breach of contract which the employer has not affirmed, the employer may dismiss without giving notice. Such a breach may be gross misconduct or gross negligence, and the level of conduct or negligence required is a question of fact for the Tribunal. An employer has a choice whether to accept the repudiatory breach and terminate the employment contract or whether to affirm the contract. If the employee has not committed a repudiatory breach of contract, then an employer may still terminate the contract but must do so in accordance with its terms as to notice if the employer is to avoid being liable for breach of contract.

[36]The Employment Tribunal has jurisdiction to consider claims for recovery of damages for breach of contract pursuant to the Employment Tribunal Extension of Jurisdiction (Scotland) Order 1994, SI 1994/1623. The claim must arise or be outstanding on termination of the employment.

[37]The only remedy available for a breach of contract claim in the Tribunal is damages. The principle, broadly, in assessing damages is to put the employee in the position they would have been in if they had not suffered the breach. The employee is under a general duty to reduce her losses by taking reasonable steps to find another job. Any income during the period of loss must be deducted from the damages payable by the employer. If the employee unreasonably fails to mitigate, then damages may be reduced by the amount that the employee would have received had they taken reasonable steps to mitigate. In an assessment of damages, the contract breaker is to be taken as having performed his obligations in the least onerous way possible. The calculation of damages in a wrongful dismissal is usually limited to the amount of money the employee would have earned during his or her notice period or until the expiry of a fixed term.

[38]Certain provisions in ERA incorporate into all employment contracts certain minimum notice periods and, in certain circumstances, prescribe certain rights and liabilities during those minimum periods. Sections 86 - 88 include the following provisions, so far as relevant: 86 Rights of employer and employee to minimum notice (1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more – (a) is not less than one week’s notice if his period of continuous employment is less than two years … (6) This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party. 87 Rights of employee in period of notice (1) If an employer gives notice to terminate the contract of employment of a person who has been continuously employed for one month or more, the provisions of section 88 to 91 have effect as respects the liability of the employer for the period of notice required by section 86(1). … (4) This section does not apply in relation to a notice given by the employer... if the notice to be given by the employer to terminate the contract must be at least one week more than the notice required by section 86 (1). 88 Employments with normal working hours (1) If an employee has normal working hours under the contract of employment in force during the period of notice and during any part of those normal working hours - (a) the employee is ready and willing to go to work but no work is provided for him by his employer, (b) the employee is incapable of work because of sickness or injury, … the employer is liable to pay the employee for the part of normal working hours covered by any of paragraphs (a), (b), (c) and (d) a sum not less than the amount of the remuneration for that part of normal working hours calculated at the average hourly rate of remuneration produced by dividing a week's pay by the number of normal working hours. Submissions

[39]Both C and Mr D gave brief oral submissions. They are not reproduced verbatim but summarised. Both submissions have been carefully considered in their entirety. Failure to mention any part of any submission does not reflect a lack of consideration of it by the Tribunal.

[40]C said she conceded the calculations made during the hearing of the number of unpaid days worked and the holidays taken in excess of the accrued entitlement. With respect to the exam fee, she said there were two periods of employment but no new contract and the same contract covered both periods. She said that nothing was put in writing regarding the exam fee and she received no correspondence after 9 February regarding the money owed. With regard to notice, C said she was entitled one month. She submitted that, if she was not guilty of gross misconduct, then under s.86 of ERA, she was entitled to notice pay. She said that if she were guilty of gross misconduct, then supporting statements and documents would be expected. She said she vehemently refuted the allegations of gross misconduct.

[41]Mr D also accepted the calculations regarding the days worked and the holiday taken in the applicable holiday year. With regard to the exam fee, he observed that C had admitted that it was to be paid back if she left in a year and pointed out that she had done so. With regard to the termination of the employment, he said the question was whether C’s departure was amicable. He submitted that C’s story about how the employment ended was fictitious. If she hadn’t come to the amicable decision to leave, he said C would have lost her job because of gross misconduct. He submitted no notice would have been needed. Discussion and Decision Unauthorised deductions from wages

[42]It is a matter of agreement that the Written Terms were the contractual terms and conditions which governed C’s employment during the Second Spell as well as the First Spell. It was further agreed that:a. in the holiday year commencing 1 January 2024 to the termination date, C accrued 3 days’ holiday;

b. in that period, C took 8 days’ holiday;

c. C, therefore, took 5 days’ holiday in excess of her accrued entitlement at the time of termination;

d. R was entitled to deduct 5 days’ pay from C’s final wage pursuant to the relevant clause of the Written Terms;

e. C was paid in full for her employment during the month of January 2024;

f. C worked 7 days in February for which she received no wages;

g. The relevant daily gross rate of pay was £92.31.

[43]R, therefore, made a deduction of two days’ pay in respect of C’s work between 1 and 9 February. The deduction totalled £184.62 gross (i.e. £92.31 x 2 days).

[44]The only remaining question for the Tribunal regarding the wages complaint is whether R was entitled to make this deduction on the basis of the verbal agreement made in around November 2022 that C would repay the exam fee of £400 because C left within a year. When C left employment on 7 May 2023, R didn’t seek to deduct or recover the monies. The parties did not make any express variation to their oral agreement about the circumstances under which the money was to be repaid. There was silence on the matter at that time and throughout the Second Spell until R relied upon the expense to defend the deduction made in February 2024 from C’s final pay.

[45]I am not persuaded that I could infer from R’s lack of enforcement of the agreement at the end of the First Spell that R had waived its rights under the verbal agreement or that there was some implied variation to the original agreement. However, it is ultimately immaterial, at least in the present context, because of the restrictions placed on the deductions an employer may make by Part II of ERA. The deduction of two days’ pay was not authorised by a statutory provision nor by a relevant provision of C’s contract (as defined by section 13(2) of ERA). Nor had C previously signified in writing her agreement or consent to the making of the deduction. The deduction did not fall into any permitted category of authorised or excepted deduction permitted by the legislative regime.

[46]R was not entitled, based on the verbal agreement in November 2022, to make a deduction from C’s final wage in February 2024 to claw back the £400 exam fee. The claimant has, therefore, suffered an unauthorised deduction from her ages in the sum of £184.62 (gross). Wrongful dismissal (breach of contract)

[47]C attended work on 9 February 2024 with no intention of resigning with immediate effect. Her intention was to give her contractual notice. If she agreed to leave employment on the 9th, which is far from clear, she did so under the clear and admitted threat of immediate dismissal. This was not a negotiated agreed position following a background of discussions, amicable or otherwise. Mr D made the threat of dismissal for the first time on 9 February 2024 in a state of anger, following receipt of a reference request. C’s departure on that date was not truly consensual; the operative cause of her departure was that she was advised she would otherwise be dismissed; she was told was not welcome in the building; and she was ushered out. Having regard to all of the facts and circumstances, I am satisfied that it was R who “really terminated the contract”. I find that R dismissed C on 9 February.

[48]It is not disputed that R did not serve any notice on C or pay her in lieu. The relevant terms as to notice were those contained in the Written Terms. Notwithstanding that they had been prepared in relation to the First Spell of employment, neither party advanced any argument that those terms did not apply. On the contrary, the implied assumption of both was that the Written Terms governed the relationship at the material time (on 9 February 2024). That is also consistent with their actings throughout the Second Spell in the way they operated the contract.

[49]Unless C had committed a repudiatory breach of the contract which R had not already affirmed, R was obliged under the Written Terms to give C one month’s notice to terminate the contract (or terminate immediately on paying in lieu). It was not established on the evidence before me C was guilty of any conduct or negligent that might amount to a repudiatory breach, entitling R to terminate the contract without notice or payment in lieu.

[50]Had C remained in employment until 8 March 2024, she would have been entitled to the month’s pay from 9 February to 8 March. Alternatively, had she been paid in lieu of her one-month notice period, she would have received her monthly pay of £2,000 less deductions for tax and NI.

[51]I considered whether, if C had remained in employment, her pay for the period from 9 February to 8 March 2024 might have been reduced because of potential sickness absence, given her bronchial infection. I concluded on the balance of probabilities that this would not have been the case. I was satisfied that C would not have called in sick during her notice period as a result of her infection because she felt she would have been able to perform her duties for the respondent with the coughing symptoms she was experiencing. Though her infection prevented her from taking up her new employment early or even on the originally envisaged start date, that was due to the highly specialised nature of the role where a sterilised environment required to be preserved. Such constraints didn’t apply in her employment with R.

[52]I observe for completeness that sections 86 to 88 of ERA to which C referred in her submissions have no materiality in the particular circumstances of this case. Had there not been a more generous notice period in the Written Terms, section 86 would have conferred on C a right to one week’s notice from R. The Written Terms ‘trump’ this entitlement. The provisions of s.87(1) and 88(1)(b) which confer, in effect, liability during minimum notice on an employer for full pay in the event of the employee’s incapacity are similarly not relevant here. If I had found that C would have gone off sick at some point between 9 February and 8 March if proper notice had been served, those sections would not have assisted the claimant, not even in respect of a minimum one week notice period. That is because those provisions are disapplied on the facts of this case by operation of section 87(4). C’s contractual notice period (of one month) is more than a week longer than her statutory minimum notice under section 86 (of one week).

[53]I considered whether C complied with her duty to mitigate her losses. She did not seek to bring forward her start date with the University but that is because it was clear from their communications that this was not an option until her infection resolved. I considered whether C’s omission to look for other employment in the period from 9 February to 8 March 2024 might be a relevant mitigation failure. There was no evidence by C that she had done so. R led no evidence about any work opportunities C could have undertaken for remuneration during that short window. I concluded that, in all of the circumstances, it was not unreasonable for C to omit to seek to secure replacement income in the period to 8 March. She knew she had secured a permanent role to commence shortly thereafter and she would only be free to work elsewhere for a very limited time. The time it would take to apply for roles and engage with recruitment processes made it highly unlikely that such endeavours would result in actual remunerative work in the short window available. In the circumstances, C did not fail in the duty to mitigate her losses. The approach she took was not unreasonable.

[54]Therefore, the measure of C’s damages is one month’s pay net of deductions for income tax and employees’ National Insurance Contributions. That is calculated as £2,000 less tax of c.£74.10 and NI of c.£95.20, i.e. £1,830.70. L Murphy