The claimant was employed as an upholsterer with the respondent from May 1999 until May 2020.  He was the only full-time upholsterer with the respondent for much of his 20 years’ service. The issue arose in early 2020, when the claimant approached the respondent asking for a reduction in his working hours to allow him to care for his child and father-in-law. The central issue in this claim is a factual dispute between the parties as to what occurred during this conversation and a subsequent conversation on 20 February 2020.

The claimant’s contention was that he asked for a reduction from 37.5 hours per week to 3 mornings per week. This was not agreed to by the Respondent, but the parties agreed that the Claimant would continue to work full time for a further three-month period. The claimant suggested that he never resigned and that it was unknown what was going to happen after those three months. The claimant made suggestions that he would continue to work full-time until a replacement was found but the respondent stated that this was never conveyed to them. The Tribunal found that the claimant would never have been willing to continue working full-time for a long period of time, although again this was not conveyed to the Respondent. The Tribunal made a finding that the conversations between the Claimant and the Respondent were in the context of the claimant leaving his employment.

In terms of the reduction in hours requested, the Tribunal agreed that for such a small business it would not have been possible for the respondent to accommodate or sustain such a reduction. In the interim, the coronavirus pandemic struck, and the respondent closed its business on 24th March 2020. The claimant was then placed on the furlough scheme. In May 2020, the Claimant instructed his accountant to register a limited company. The Claimant stated it was merely to change the name of the small-scale business that he was already running. The Tribunal did not accept this and saw it as a preparation of upscaling his business in light of the knowledge that his employment was coming to an end.

The respondent contacted the Claimant stating that the business was reopening on 25th May and that furlough was stopping on 22nd May. The claimant stated that his kids were still not at school so he could not go into work. The respondent suggested that as they had agreed the claimant was leaving at the end of May perhaps it was better to bring that forward. The claimant then stated that he had never agreed that he was leaving.

The claimant did not report for work on 25th May but attended on the 26th May with his children and a conversation took place with the Respondent. There was some dispute over the length and content of the conversation; however, the Tribunal accepted the Respondent’s version that the conversation was in relation to the fact the respondent could not accept the 29 hour reduction and that the claimant had been working his three months’ notice.  The Tribunal further found that the claimant had no intention of returning to work following furlough.  He was not prepared to avail of childcare relating to key workers.

In terms of the unfair dismissal claim, it was for the claimant to prove that he was dismissed.  It was found by the Tribunal that this burden was not discharged.  This was on the basis that the claimant had stated to his wife that he would work part-time, that the fact he was not accommodated for part-time working led to a resignation and that the resignation notice period was for a three-month period.  The Tribunal did note that it was regrettable that the respondent did not communicate in writing in February 2020 to outline the agreed termination date.  Indeed, it was part of wider problems also involving the failure to provide a written statement of employment particulars.

As a result, the claimant’s unfair dismissal claim was refused. The only claim that was successful related to the failure to provide written statement of employment particulars.  He was awarded £900.00 for that failure and holiday pay to the sum of £84.38.

Practical Lessons

This case demonstrates the difficulty that can arise when agreements are not put in writing and made with clarity.  There seemed to be some element of miscommunication as to whether there had been a resignation and notice given.  Whilst the respondent avoided liability vis-à-vis unfair dismissal it still led to having litigation against them. A simpler solution would have been for the outcome of the conversation recoded in writing. The effects of the pandemic would have been unforeseen at that time and it may have altered the views of the parties, but notwithstanding that, having written clarity between employer and employee is one of the fundamental rules when it comes to change in the workplace.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/