Ms L Anderson v Fueltone Ltd (In Liquidation): 8001235/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001235/2025

Between

Ms L AndersonClaimant

Fueltone Ltd (In Liquidation)Respondent

Before

Employment Judge M Robison

Date 7 January 2026

JUDGMENT

The judgment of the Employment Tribunal is that the claim under the Employment Rights Act 1996 is not well-founded and is dismissed.

REASONS

[1]The claimant lodged a claim in the Employment Tribunal on 16 May 2025 claiming a redundancy payment.

[2]The claim was accepted although it appeared to have been submitted out of time.

[3]By letter dated 20 May 2025, the claimant was advised that because the respondent was in compulsory liquidation, she would require to obtain the consent of the court dealing with the liquidation proceedings. A letter of consent from the Sheriff at Aberdeen Sheriff Court was issued on 7 August 2025.

[4]An ET3 defence was lodged on behalf of the respondent in compulsory liquidation by the joint liquidator, Graham Smith. The joint liquidator advised that it was not their intention to attend any hearings, but that they relied on the defence lodged. They also submitted a written statement from the joint liquidator dated 25 October 2025.

[5]A final hearing was listed to take place on 24 November 2025 and a case management order was issued on 18 August 2025, ordering the claimant to lodge any documents upon which she intended to rely at the final hearing.

[6]On 28 October 2025, the claimant submitted a statement and advised that she would be calling Mrs Sandra Gray as a witness at the final hearing.

[7]At the outset of the final hearing, Mrs Gray was present and accordingly she was asked to leave the room prior to giving evidence.

[8]It quickly became evident that the claimant had not lodged any documents to support her claim, although she referred to documents during her evidence. I decided, in the interests of efficiency, that I should hear her evidence and I invited her to submit any relevant documents which supported her evidence at the conclusion of the hearing. Although the claimant did so immediately after the hearing, her e-mails were not forwarded to me by Tribunal administration until 5 December 2025.

[9]After I heard evidence from the claimant, I queried what evidence was to be led by Mrs Gray. It became apparent, largely because there was no dispute about the facts, that it would not be necessary to hear evidence from Mrs Gray. Findings in fact

[10]On the basis of the evidence heard and the documents subsequently lodged, the Tribunal finds the following facts admitted or proved.

[11]The respondent was a small company which sold fuel additives, employing three or four sales staff throughout the UK. Mr Robbie Gray and Ms Charlene Currie were directors.

[12]The claimant commenced employment as an administration manager with the respondent on 7 October 2019. Her date of birth is 29 December 1978.

[13]On 1 September 2024, Robbie Gray passed away suddenly and Charlene Currie came out of retirement to take over the running of the business.

[14]On 19 December 2024, in the early evening, the claimant received a telephone call from Charlene Currie. She advised that the company would be going into administration or liquidation and that trading would cease with immediate effect. The claimant was advised not to come into the office after the Christmas break, which was due to commence on 20 December 2024.

[15]The claimant received a number of telephone calls during January from Charlene Currie to advise that they were trying to find a buyer, and that the company would continue to trade unless they could find one. She advised the claimant to seek employment elsewhere, and that it was in the hands of the liquidators who would be in touch in due course.

[16]As a single parent with three teenage boys the claimant was aware that she could not afford to be without a job. Accordingly, although she was not sure of the exact circumstances of the respondent, she decided to seek part-time employment, with the intention that could be combined with employment with the respondent should a buyer be found. She was aware that another company which Robbie Gray had been involved with, Enerion, was looking for an administrative manager and accordingly she contacted them and was engaged to commence on 20 January 2025, working three days each week.

[17]The claimant advised Charlene Currie that she was due to commence with Enerion on a part-time basis on 20 January 2025, asking to keep her informed. She advised that she was waiting to hear back from the liquidator.

[18]The claimant did not advise that she had resigned either orally or in writing.

[19]The accountants for Enerion, who were the same accountants engaged by the respondent, asked the claimant for her P45 so that Enerion were aware of her tax records and could set up a salary. She accordingly e-mailed Charlene Currie to ask for her P45 (doc A).

[20]On 24 January 2025, the claimant e-mailed Charlene Currie asking for her P45 and stating, “I also want to find out how to apply for redundancy if you can help in any way or advise me any information you require please. I have been advised I need a letter from you advising of the redundancy situation as at 19 December” (doc A).

[21]The P45 produced stated that her leaving date was 17 January 2025 (doc D), but that the claimant believed was only because she started at Enerion on 20 January 2025.

[22]Charlene Currie replied by e-mail on 27 January 2025 to say, “regarding the redundancy it will be the liquidator that deals with the process. As far as I know you’ll be entitled to salary up to the Friday before you started at Enerion as FT hasn’t formally gone into liquidation yet. Confirmation of that and the rules concerning redundancy will come from the liquidator”.

[23]On 28 January 2025 the claimant received a payslip for £1,133.16 from the respondent’s accountants, but no payment (doc B).

[24]On 27 February 2025, joint interim liquidators were appointed by the Sheriff at Aberdeen Sheriff Court (see doc C).

[25]On 13 March 2025, the claimant received a letter from the joint liquidator to say that they had taken over as liquidators of the respondent (doc E). The claimant contacted the liquidator and spoke to Susan Davidson. She asked about a redundancy payment and completed a form on-line as requested seeking outstanding arrears of pay, holiday pay and redundancy payment.

[26]On 28 March 2025, the claimant received a reply from the insolvency service advising that she was not entitled to redundancy pay or notice pay (doc K). The claimant received a further letter from the insolvency service on 1 April 2025 advising that she was not entitled to a redundancy payment (doc G).

[27]She contacted the liquidator again and spoke to Susan Davidson who advised that there was a box ticked on the P45 that she had left the company and that they had been told by Charlene Currie that she had resigned.

[28]The claimant undertook an on-line search to find out what she should do in relation to the redundancy payment. She ascertained that she required to contact ACAS, although she had never heard of that organisation before. She accordingly contacted ACAS by telephone as soon as she was told that she was not entitled to redundancy pay. She was advised that because the respondent was insolvent she would require to go through the liquidator or the insolvency service. The claimant was also advised that she would have to “get the ball rolling” within three months, although she was not sure when the three months started and assumed that it was after she had been told by the liquidator that she was not entitled to a redundancy payment.

[29]The claimant contacted the liquidator again to ask what to do and spoke to Susan Davidson. She also contacted the insolvency service helpline and they told her on the telephone that she should register a dispute with the employment tribunal.

[30]By e-mail dated 8 April 2025 to the joint liquidators (doc I), the claimant stated as follows: “I was advised on 19 December 2024 by Charlene Currie that Fueltone was going into Liquidation with immediate effect and not to return to the office as it has stopped trading with immediate effect. As you can imagine this came as a shock as I have been with Fueltone since 1 October 2019. I was under the understanding that I no longer had a job to come to and that I should find employment elsewhere. As a single mother of 3 young boys, it is not possible for me to wait for weeks/months on end without an income and had not been advised on the situation regarding redundancy or wages. I was fortunate enough to be offered a job with Enerion on a part-time basis from 20 January which would have me the opportunity to continue working for Fueltone on a part-time basis if required. I did not resign from Fueltone. I did however ask for a P45 as the accounts team with Enerion asked me for this to set me up in payroll. I was not advised that this might impact my redundancy pay….I would appreciate your assistance and advice to resolve this matter”.

[31]The claimant contacted ACAS on 9 April 2024, when she was told to contact RPS and that she had three months to lodge a claim (doc J).

[32]On 15 April 2025, the claimant received a letter from the Insolvency Service advising that she had been paid the sum of £919.72 which she understood related to arrears of pay and holiday pay to 17 January 2025.

[33]Susan Davidson replied to her enquiry on 22 April 2022 on behalf of the joint liquidator, stating, “based on the company records provided along with information from the director, the position remains unchanged. Whilst I sympathise with the situation you were faced with prior to the company going into liquidation, we were required to provide the Redundancy Payments Service with the information contained in the company records provided by the director and the accountants”.

[34]The claimant responded by e-mail stating, “I would like to appeal this decision, please advise on this process. As I said in my previous e-mail I did not resign from Fueltone. With no wages coming in and 3 children to provide for, I had to find something quickly whereby if Fueltone reopened, I could continue my work there also. I was also advised to obtain my P45 for Enerion, this does not mean I terminated my previous employment. There was no letter of resignation of email, no proof other than I’m guessing incorrect hearsay”.

[35]The claimant then contacted ACAS to intimate a claim. An ACAS certificate was issued on 22 April 2025.

[36]The claimant then completed the on line form and submitted it to the employment tribunal on 16 May 2025.

Relevant law

[37]Section 135 of the 1996 Act states that an employer shall pay a redundancy payment to an employee if his employee is dismissed by reason of redundancy.

[38]Claims in respect of redundancy payments require to be determined by an employment tribunal under s. 163 of the 1996 Act. Section 164 states that an employee does not have any right to a redundancy payment, unless, before the end of the period of six months from the date of dismissal, an employee has made a claim for the payment by notice in writing given to the employer (s164(1)(b); or the question as to the employee’s right to, or the amount of, the payment (s164(1)(c), or a claim for unfair dismissal, has been referred to an employment tribunal (s164(1)(d).

[39]An employee is not however deprived of his right to a redundancy payment, if, during the period of six months immediately following the six months after the date of dismissal, the employee makes a claim for the payment by notice in writing given to the employer; or refers the question as to his right to, or the amount of, the payment, or makes a claim for unfair dismissal to the employment tribunal, and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment (s.164(2)). These time limits are extended for early conciliation in terms of s.164(5).

[40]In determining whether or not it is just and equitable that an employee in these circumstances should receive a redundancy payment, the employment tribunal shall have regard to the reason shown by the employee for his failure to make a claim in writing for a redundancy payment or to lodge a claim in the employment tribunal; and all the other relevant circumstances (s. 164(3)).

[41]Section 162(1) states that the amount of a redundancy payment shall be calculated by(a) determining the period, ending with the relevant date, during which the employee has been continuously employed,

(b) reckoning backwards from the end of that period the number of years of employment falling within that period, and

[42]Section 162(2) states that the appropriate amount means(a) one and a half week’s pay for a year of employment in which the employee was not below the age of forty-one,

(b) one week’s pay for a year of employment in which he was not below the age of twentytwo, and

[43]The relevant date for the purposes of calculating the redundancy payment is the effective date of termination, that is, in terms of s.145(a) where the contract is terminated by notice, the date on which that notice expires; where the dismissal is without notice, the date of which the termination takes effect (s.145(b)).

[44]In Bates v Brit European Transport Ltd 309/94 the EAT held that a request for a P45 is ambiguous and cannot in itself be construed as a resignation (although in that case the question was whether the claimant had been dismissed or resigned).

[45]A contract of employment will not come to an end until an employee has communicated their resignation to the employer. Such communication need not be orally or in writing, but may be inferred from the employee’s conduct (Edwards v Surrey Police

1999 IRLR 456

EAT). A resignation need not be expressed in a formal way and may be inferred from the employee’s conduct and the surrounding circumstances (Johnston v Monty Smith Garages Ltd

EAT/657/79

)

[46]A warning of future redundancies is not a dismissal with notice (or at all) under s136(1)(a) ERA. If an employee leaves following such a warning they will be treated as having resigned and will not be entitled to a redundancy payment. Dismissal will not only inform the employee that employment will end but will also inform them of the date employment will end. Tribunal deliberations and decision

[47]I accepted that the claimant was totally credible and reliable, and her oral evidence was subsequently confirmed by the documentary evidence which she lodged.

[48]This claim was accepted although it appeared to have been submitted out of time. However, since this is a claim for a redundancy payment, where the claimant has up to a year to claim so long as she has intimated a claim in accordance with the relevant provisions set out above.

[49]Accordingly I find that this claim has been lodged in time.

[50]The only substantive issue in this case was whether the claimant was entitled to a redundancy payment, and the question for determination centred around whether there had been a termination of the claimant’s employment and in particular whether the claimant had resigned or not.

[51]In this case, the claimant was advised on 19 December 2024 that the company would be going into administration or liquidation and that trading would cease with immediate effect, and the claimant was advised not to come back into work. No specific date was communicated. The claimant was subsequently advised that they were looking for a buyer, but she was encouraged to seek employment elsewhere. The claimant was not given a date when the company would actually cease trading.

[52]The claimant, understandably and perhaps admirably, was aware that she could be without employment for any time given her financial circumstances, so then got another job. In her view because this was a part-time job, that meant that she could continue working for the respondent should a buyer be found. It should be noted that the claimant could not apparently continue in the same job and role since she had been working there full-time.

[53]Crucially, the claimant then asked for her P45. She said that she was asked to obtain this by her new employer (which would be standard procedure). However that may have been an unwise thing to do given her particular circumstances. There was in fact no absolute requirement for her to provide a P45, since if there was any ambiguity about her circumstances she could have been put on an emergency tax coding. Further, in this case, the claimant advised that the same accountants dealt with payroll in both companies.

[54]The claimant stressed at the time and in evidence that she did not advise that she did not intend to resign and that she had not resigned either orally or in writing. I accepted her evidence about that.

[55]However the P45 gave a leaving date of 17 January 2025. That stated that her leaving date was 17 January 2025 (doc D), but that she believed was only because she started at Enerion on 20 January 2025.

[56]That was the information which was understood to have been communicated to the respondent.

[57]A request for a P45 is not unambiguous proof that a claimant has resigned. It may also mean that the claimant has been dismissed. What does however seem clear is that the creation and furnishing of a P45 is definitive evidence of the termination of an employment contract. Accordingly, although the claimant did not resign by words, in requesting her P45 her conduct must be taken to be a resignation from her employment.

[58]Although the circumstances of this case are unfortunate for the claimant, I conclude that the claimant resigned from her employment with the respondent on 17 January 2025, and is therefore not entitled to a redundancy payment. This claim must therefore be dismissed. Date of Judgment: 7 January 2026