Background:

The claimant was employed as a pizza chef from 1st August 2021 until 22nd April 2022.   The claimant was noted as a ‘hard-working and reliable’ employee and that he worked with the respondent to perfect and improve the pizza product marketed by the respondent.

It was agreed by the parties that there was no main statement of terms and conditions and that the claimant was entitled to 163 holiday hours at the time he left his employment.

The primary issue arose when the claimant was granted paternity leave.  He started the paternity leave on 7th April and was due to return on 22nd April.  He was paid at full pay rather than the statutory rate.   The claimant did not wish to return on 22nd April but rather wanted a slightly longer period.  He was persuaded to come in to work for a few hours on 22nd April 2022. At this time, a discussion took place regarding the claimant’s wage slips.  The claimant had reached the relevant earnings threshold and deductions were being made for tax and national insurance contributions.   It was stated by the respondent, and agreed by the Tribunal, that the claimant sought additional money including cash in hand which the respondent was unwilling to facilitate.  The issue arose as to whether the claimant left or resigned.   The Tribunal cited that it was unable to determine whether the claimant walked out and resigned regarding the tax matter or if it related to a request relating to holiday pay and that he had been dismissed.

Outcome:

It was for the Tribunal to determine whether the claimant resigned or was dismissed following the discussion in April 2022.   The claimant did not have one years’ continuous service therefore did not have the right not to be unfairly dismissed.  The argument was made that he had been dismissed on the basis of the assertion of a statutory right, namely holiday pay.    However, the issue was actually the request for holiday money as a cash advance rather than the right to holiday leave/pay.  Therefore, the Tribunal found that even if such exchange had taken place it would not have been a statutory right upon which a claim for automatically unfair dismissal could have been founded upon.    Furthermore, it was for the claimant to prove that he had been dismissed and the threshold had not been achieved in this regard.  Therefore, there was no unfair dismissal taking place in this scenario.  That being said, it was agreed that there had been a failure to pay holiday pay and provide main statement of terms and conditions.  Accordingly, compensation was given for those matters.

Practical Guidance for Employers:

This case relates to issues of automatically unfair dismissals largely on the basis of the continuous service requirement not being met.  The Tribunal made it clear that the request to a cash advance for holiday pay is not covered by a statutory right and could not be the basis of the automatically unfair dismissal claim.   It is important for employers to be mindful of the statutory rights and their particular remits as such nuanced issues can arise in practice.

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