Employment Judge J G d’InvernoDate 20 January 2026
JUDGMENT
The judgment of the Employment Tribunal is:- (First) That the claimant’s complaint of Unfair Dismissal succeeds. (Second) That the respondent shall pay to the claimant a basic award of £3,138.50 (THREE THOUSAND ONE HUNDRED AND THIRTY-EIGHT POUNDS AND FIFTY PENCE). (Third) That the respondent shall pay to the claimant a compensatory award, in respect of continuing net loss of wages in the period 25 April until 12 May 2025, in the net sum of £2,343.75 (TWO THOUSAND THREE HUNDRED AND FORTY THREE POUNDS AND SEVENTY-FIVE PENCE). (Fourth) That the respondent shall pay to the claimant the net sum of £2,826.10 (TWO THOUSAND EIGHT HUNDRED AND TWENTY-SIX POUNDS AND TEN ETZ4(WR) PENCE) in compensation for accrued but untaken paid annual leave entitlement as at the Effective Date of Termination of Employment 25 April 2025. (Fifth) That the respondent shall pay to the claimant the net sum of £2,467.10 (TWO THOUSAND FOUR HUNDRED AND SIXTY SEVEN POUNDS AND TEN PENCE) being in compensation for 5 weeks statutory notice entitlement.
REASONS
[1]The respondent “New Town Fox” is the trading name of a restaurant business carrying on business from 2 Dundas Street, Edinburgh and previously also from other restaurant premises in Dublin Street there. The claimant was employed by the business entity which trades under the name of “New Town Fox” from on or about 14 July 2019 up to and including 25 April 2025, on which latter date the respondent dismissed the claimant in terms of section 95(1)(a) of the Employment Rights Act 1996.[2]The Effective Date of Termination of the claimant’s employment was 25 April 2025.[3]On 25 April 2025 the respondent failed to pay the claimant his wages (being holiday pay) for the preceding week which payment he was due to receive by bank transfer on or about 23 April 2025.[4]On 7 March 2025 the respondent had lost use of the premises in Dublin Street from which the claimant previously also worked in his capacity as a chef.[5]In the period from 7 March 2025 prior to his going on holiday on 7 April, the claimant worked in the Dundas Street premises of the business.[6]In that same period the other members of staff who had been transferred from Dublin Street to Dundas Street had left voluntarily to find other employment.[7]The claimant, for his part, was content to continue to work from the Dundas Street premises. He had no intention of terminating his employment.[8]On 7 April the claimant took his planned two week period of leave.[9]When his pay was not paid into his bank account the claimant believed that he had been dismissed by the respondent. He sent a text message to the respondent’s Manager Collison Eaton asking to be paid the second week of holiday pay.[10]On 26 April 25 the respondent sent a message in reply to the claimant’s of 25 April. The respondent’s Manager Callison Eaton stated in the message “I’d actually muted our conversation as I didn’t think I would hear from you again. I don’t think you are owed any more holidays but I’ll get the accountant to double check. How many days do you still think you are due?”.[11]The claimant replied that same day stating “I’ve only used what I believe was two weeks of my holidays from last year. I also confirmed that it was okay to do so with you”.[12]The claimant had expected to return to work from annual leave on 25 April. He spoke with the Head Chef Connor McInnes on that day by telephone. Connor McInnes told him that whereas other chefs and staff were rostered to work going forward, the claimant’s name did not appear on any rosta.[13]The respondent’s non-payment to the claimant of his due wages and the respondent’s failure to rosta the claimant for any further duties constituted, in the circumstances, termination of the claimant’s Contract of Employment by the respondent without notice in terms of section 95(1)(a) of the Employment Rights Act 1996 (“ERA”).[14]The effective date of termination of the Claimant’s employment was 25 April 2025[15]The respondent, who has not entered appearance, has failed to show that the reason, or if more than one the principal reason, for the respondent’s dismissal of the claimant was one of the potentially fair reasons set out in sections 98(1)(e) or 98(2) of the Employment Rights Act 1996.[16]The dismissal accordingly falls to be regarded as unfair in terms of section 98 of the ERA.[17]The claimant, whose date of birth is 08 04 1997 was 28 years of age and had accrued 5 complete years of service as at the Effective Date of Termination of his employment.[18]As at the Effective Date of Termination the claimant’s relevant gross weekly wage was £627.70 and his net weekly wage was £493.42.[19]As at the Effective Date of Termination the claimant’s gross hourly rate of pay was £15 and his net hourly rate of pay was £11.80.[20]The Claimant is entitled to a basic award of £3,138.50 (THREE THOUSAND ONE HUNDRED AND THIRTY-EIGHT POUNDS AND FIFTY PENCE).[21]Following his dismissal, on 25 April 2025, the Claimant took steps to look for alternative employment which he secured and commenced on 12th May.[22]The Claimant’s salary in his new Employment is greater than that in his previous Employment with the Respondent. In the period 25 April to 12th May 2025 the Claimant suffered continuing wage loss 23. being a loss for which the Respondent is responsible. The claimant’s continuing wage loss ceased on 12th May 2025. 24.[25]The claimant is entitled to compensatory award, in respect of continuing net loss of wages in the period 25 April until 12 May 2025, in the net sum of £2,343.75 (TWO THOUSAND THREE HUNDRED AND FORTY-THREE POUNDS AND SEVENTY FIVE PENCE).[26]As at the Effective Date of Termination the claimant had accrued a statutory entitlement to 5 years notice of termination of employment in terms of section 86(1)(b) of the ERA.[27]On 25 April 2025 the respondent by its actings dismissed the claimant without notice.[28]The claimant is entitled, his dismissal being unfair, to be compensated for the respondent’s failure to either allow him to work his statutory notice period or alternatively, to pay him in lieu of notice.[29]The claimant is entitled to receive in compensation for the respondent’s failure to provide him with his statutory notice, the net sum of £2,467.10 (TWO THOUSAND FOUR HUNDRED AND SIXTY SEVEN POUNDS AND TEN PENCE) being the sum equivalent to 5 weeks pay at £493.42 net per week.[30]The claimant’s holiday year ran from 6 April to 5 April in each succeeding 12 month period.[31]The claimant worked irregular hours across 4 days per week.[32]In the 52 week reference period immediately preceding the Effective Date of Employment, the claimant worked a total of 2,171 hours.[33]The claimant’s proportionate entitlement to paid annual leave for a full 12 month holiday year worked across 4 days per week is (2,171.00 hours) x (12.07%) = 262 hours per year.[34]The respondent and the claimant had agreed, post return to work after COVID, that the claimant would be entitled to carry forward into the succeeding holiday year any balance of accrued but untaken paid annual leave entitlement arising from the preceding year.[35]At the end of holiday year 6 April 2024 to 5 April 2025 the claimant had a balance of accrued but untaken paid annual leave entitlement of 78.60 hours which, in terms of his agreement with the respondent, was carried forward into holiday year 6 April 25 to 5 April 2026.[36]In holiday year 25/26 the claimant worked for a total of 19 days and accordingly accrued a proportionate entitlement to annual leave of 262 ÷ 365 x 19 (days) being 13.63 (14 days).[37]As at the Effective Date of Termination, 25 April 2025, the claimant had carried forward and accrued but as yet untaken entitlement to paid annual leave of 276 hours for which he was entitled to be remunerated/compensated for, at a net rate of £11.06 per hour in the total net amount of £3,256.80.[38]In April of 2025 the claimant received payment from the respondents in respect of 36.5 hours of holiday pay in the net amount of £430.70 which sum falls to be deducted to the sums owed by the respondent to the claimant in respect of accrued but untaken paid annual leave entitlement outstanding as at the Effective Date of Termination of the claimant’s employment.[39]Accordingly, the respondent shall pay to the claimant the net sum of £2,826.10 in compensation for accrued but untaken paid annual leave entitlement arising on termination of employment and being (£3,256.80 – the sum of £430.70 already received).