What was the claim?
The employee claimed that he had not received some of his wages on time, and that some were outstanding, as a result he felt he had no alternative to resign, which he claimed amounts to constructive dismissal.
The employee successfully made a civil claim and was awarded in excess of £7000 in the Petty Debts court for the outstanding wages and holiday pay and therefore it was left to the Tribunal to rule only on the question of constructive unfair dismissal.
What was the employer’s position?
Bento failed to respond to the claim form, or the subsequent reminder, from the Tribunal and therefore a Hearing was arranged for 31 October 2024.
They failed to attend the Hearing which went ahead in their absence.
What does the law say?
Whether the employer intended to break the contract is irrelevant, payment of wages, on the due date, in return for work is a fundamental part of the contract of employment so failing to pay is a repudiatory breach.
What did the judge say?
The judge decided in favour of the claimant in regard to the claim for constructive unfair dismissal on the basis of the single repudiatory breach as there was no necessity to consider any other factors. The judge also declined to make any reduction in the award which he set at the maximum of 26 weeks.
The judge noted that the Claimant had NOT made a claim for wrongful dismissal but decided that the facts of the case and the evidence available warranted a finding that he had additionally been wrongfully dismissed and was therefore entitled to receive a payment in respect of his contractual notice. The judge found that this amounted to 5 weeks pay and again declined to make any reduction.
What was the award?
The judge awarded the employee £16,900 for Constructive Unfair Dismissal and £3,250 Damages for Unpaid Notice Pay.
What are the key take aways and learnings?
- Employers must ALWAYS make wage payments on time, and directly to the employee. Failure to do so will inevitably result in a finding of constructive unfair dismissal.
- Employers must identify the correct notice period (contractual or statutory) need to calculate notice pay and make the correct payment when employment is terminated.
- Employers should not ignore Tribunal claims or fail to attend hearings. Failure to submit a response to the claim can result in a monetary judgement being made against the business. Failure to attend the hearing means the case will be decided on the evidence and testimony of the claimant alone, and, as with this case can result in the maximum awards being made without an reductions. This rarely happens in cases which are defended by the employer.
How can HR Now help?
The HR Now team regularly advise and support business and clients of all sizes from all sectors on managing complex casework. We provide the highest quality handbooks, contracts and policies. We also provide effective training to enable mangers to carry out their roles in handling complex employee casework. We also assist businesses in procuring HR software/HR Information Systems that enable the production of reports, date and evidence.
When it comes to Tribunal claims we offer a bespoke, tailored project approach to managing every stage of the Tribunal process from response to the claim form to representing at the final hearing. Our approach is (1) expert and professional, (2) offers value for money and (3) is underpinned by a successful track record of delivering results.