Employment Tribunal Rules in Favour of Unfair Dismissal and Notice Pay Claims

OUTCOME: Allowed in Part

[NAME_1]: 6008145/2025

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EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted] Watford On: 18-19 March 2026 Before: Employment Judge MJ Smith

REPRESENTATION:

Claimant: [redacted] Respondent: [redacted]

RESERVED JUDGMENT 1. The claimant was an employee and worker of the respondent at the relevant time. The claim of unfair dismissal will therefore proceed.

2. The claimant’s claim for unfair dismissal is well founded.

3. The complaint in respect of holiday pay is not well-founded and is dismissed. The respondent did not make an unauthorised deduction from the claimant's wages by failing to pay the claimant for holidays accrued but not taken on the date the claimant’s employment ended.

4. The claimant’s claim for breach of contract in relation to notice pay is well-founded.

5. The claimant’s claim for loss of statutory rights is not well-founded and is dismissed.

[NAME_1]: 6008145/2025

2 6. When the proceedings were begun the respondent was in breach of its duty to provide the claimant with a written statement of employment particulars.

REASONS

Introduction

1. This is a claim for unfair dismissal within the meaning of section 98 of the Employment Rights Act 1996 arising from the claimant being dismissed on the basis of redundancy. The claimant alleged that the respondent’s real reason for his dismissal was due to wanting to terminate the claimant’s employment and avoid liability for any sums owing. The claimant also brings claims for unauthorised deduction of wages relating to holiday pay, notice pay, loss of statutory rights and failure to provide written particulars of employment. These arise out of the termination of the claimant’s employment.

2. The respondent is a contractor which provides abseiling and high-altitude trained workers to clients.

3. The claimant worked for the respondent, as a level 3 IRATA trained rope access technician, from 20 October 2020 until 9 November 2024.

4. The claimant contacted early conciliation via ACAS on 26 January 2025 and the ACAS Certificate was issued on 13 February 2025. On 10 March 2025 the claimant presented a claim for unfair dismissal, holiday pay and notice pay to the Tribunal.

Law

5. Section 98 of the Employment Rights Act 1996 provides:

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or

[NAME_1]: 6008145/2025

3 (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3) In subsection (2)(a)— (a) “capability” , in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and (b) “qualifications” , in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the [NAME_1]

6. Section 230 of the Employment Rights Act 1996 provides: (1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker's contract shall be construed accordingly.

[NAME_1]: 6008145/2025

4 (4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed. (5) In this Act “employment” — (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b) in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly. (6) This section has effect subject to [sections 43K, 47B(3) and 49B(10)]2; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker” , “worker's contract” and, in relation to a worker, “employer” , “employment” and “employed” have the extended meaning given by section 43K. (7) This section has effect subject to section 75K(3) and (5).

7. The [NAME_1] of [COMPANY_6] v [NAME_6] and anor and another [NAME_1] 2023 EAT 93 held that there should be detailed factual enquiry to determine the employee status of a claimant.

8. The [NAME_1] of Richards v Waterfield Homes Ltd & Anr [2022] EAT 148 is factually similar to this [NAME_1] in that it involved a claimant who had paid tax via the Construction Industry Scheme (CIS) in which he was registered as self-employed for tax purposes. It was held that tax status is not enough to determine employment and all the factual circumstances should be examined to determine the true nature of the relationship.

9. Section 139(1) of the Employment Rights Act 1996 provides:

(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to— (a) the fact that his employer has ceased or intends to cease— (i) to carry on the business for the purposes of which the employee was employed by him, or (ii) to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business— (i) for employees to carry out work of a particular kind, or (ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.

[NAME_1]: 6008145/2025

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10. Section 135 of the Employment Rights Act 1996 provides:

(1) An employer shall pay a redundancy payment to any employee of his if the employee— (a) is dismissed by the employer by reason of redundancy, or (b) is eligible for a redundancy payment by reason of being laid off or kept on short- time. (2) Subsection (1) has effect subject to the following provisions of this Part (including, in particular, sections 140 to 144, 149 to 152, 155 to 161 and 164).

11. The [NAME_1] of Williams v Compair Maxam Limited [1982] IRLR 83 held that clear procedures need to be followed in order for the redundancy process to be fair. This included keeping employees informed, having consultations and creating selection criteria.

12. The [NAME_1] of Polkey v AE Dayton Services Ltd [1988] AC 344 held that in considering fairness the tribunal should have regard to the process and what would happen if a fair process had been undertaken. The [NAME_1] also held that the tribunal should assess the chance of the employee being dismissed had a fair procedure taken place.

13. Section 86 of the Employment Rights Act 1996 provides:

(1) The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more— (a) is not less than one week's notice if his period of continuous employment is less than two years, (b) is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years, and (c) is not less than twelve weeks' notice if his period of continuous employment is twelve years or more.

(2) The notice required to be given by an employee who has been continuously employed for one month or more to terminate his contract of employment is not less than one week.

(3) Any provision for shorter notice in any contract of employment with a person who has been continuously employed for one month or more has effect subject to subsections (1) and (2); but this section does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.

(4) Any contract of employment of a person who has been continuously employed for three months or more which is a contract for a term certain of one month or less

[NAME_1]: 6008145/2025

6 shall have effect as if it were for an indefinite period; and, accordingly, subsections (1) and (2) apply to the contract. [...]1

(6) This section does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.

14. Section 104 of the Employment Rights Act 1996 provides:

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.

(4) The following are relevant statutory rights for the purposes of this section— (a) any right conferred by this Act for which the remedy for its infringement is by way of a complaint or reference to an employment tribunal, (b) the right conferred by section 86 of this Act, (c) the rights conferred by [sections 68, 86, 145A, 145B, 146, 168, 168A, 168B, 169, 170 and 236A of the Trade Union and Labour Relations (Consolidation) Act 1992]2 (deductions from pay, union activities and time off), (d) the rights conferred by the Working Time Regulations 1998 , [[the Merchant Shipping (Maritime Labour Convention) (Hours of Work) Regulations 2018 (S.I. 2018/58)]4,]3 the Merchant Shipping (Working Time: Inland Waterway) Regulations 2003[, the Fishing Vessels (Working Time: Sea-fisherman) Regulations 2004 or the Cross-border Railway Services (Working Time) Regulations 2008]5, and (e) the rights conferred by the Transfer of Undertakings (Protection of Employment) Regulations 2006.

(5) In this section any reference to an employer includes, where the right in question is conferred by section 63A, the principal (within the meaning of section 63A(3)).

[NAME_1]: 6008145/2025

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The evidence before me

15. I was provided by the respondent with a bundle of 954 pages for the final hearing. There were witness statements from the claimant, [NAME_7] and [NAME_9]. I heard evidence from the claimant, [NAME_7] and [NAME_9].

16. Having heard the evidence and read such documents as were referred to in the hearing bundle I made the following findings of fact

Preliminary matters

17. There was an issue regarding the witness statement of [NAME_9]. The statement was not in the bundle and the claimant’s representative wanted it included and for the tribunal to accept it at face value. The respondent objected on the basis that [NAME_8] had informed them that the statement had been written by the claimant and [NAME_8] had no wish to be connected with the statement dated 28 September 2025.

18. I determined that I needed to hear evidence from [NAME_8] on the issue and required his attendance on the second day of the hearing.

19. I heard evidence from [NAME_8] in which he stated that he had not written the statement dated 28 September 2025 and that it was the claimant who had written the statement and sent it to [NAME_8] via WhatsApp. I noted that there was no declaration of truth on the statement, it was not signed and it was contained in the body of an email from [NAME_8] to the claimant. [NAME_8] asserted that he had not read the statement before emailing it to the claimant at the claimant’s request. He was cross-examined by the claimant’s representative and accepted that he had spoken to [NAME_7] who had contacted him once he had become aware that [NAME_8] was a witness for the claimant. The claimant’s representative asserted that [NAME_8] had been asked by [NAME_7] to change his statement. [NAME_8] disagreed with this assertion and stated that he was surprised his statement was being used in the tribunal proceedings and this was why he wanted to change it.

20. The two versions of events are opposite to each other and I am unable to determine whether [NAME_8] truly wished to change his evidence because the statement had been written by the claimant or because [NAME_7] had asked him to change it. I give his evidence very little weight and have taken it into consideration only where the facts have been agreed by both parties.

My findings of fact

Employment status

[NAME_1]: 6008145/2025

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21. It was agreed that the claimant had started to work for the respondent as a rope access technician on 20 October 2020. There was no written contract between the claimant and the respondent. All parties accepted that the WhatsApp messaging application was used as the primary means of communication. There were numerous messages between [NAME_10] on behalf of the respondent and the claimant such that I found that this was the primary means of communication. The parties accepted that the respondent would inform the claimant of what site to attend on a given day, what work was to be done and the claimant would send photographs of ongoing and completed work to the respondent throughout the day.

22. The claimant was registered with CIS for tax purposes for the entirety of his time with the respondent. He accepted that he had not questioned this and had sent invoices to the respondent. The claimant asserted that he had sent invoices because this was how the respondent operated as a business.

23. There was mutuality of obligation in that the claimant was expected to attend for work on a given day, to complete that work within set hours of the day and to report on his work throughout his time on site. There was no evidence of the claimant ever having substituted himself with another person indeed the respondent accepted that this had never happened. The respondent provided client details, materials and allowed the claimant and other members of staff to be added to the respondent’s trade account in order to obtain materials for the allocated jobs.

24. Having heard the evidence from the witnesses I found that the claimant was expected to attend work on the days required. This was seen in the documentary evidence which showed the claimant working five days per week for the respondent most weeks of the year. There were breaks for holidays but there was evidence in the WhatsApp messages that the claimant was given specific dates to take holiday which would be helpful to the respondent. There was also evidence in the messages of the claimant providing his reasons for being unavailable due to holiday. This is more like an employer and employee relationship than that of an independent contractor and a client or customer.

25. I found that there was a degree of control being exercised by the respondent on the claimant such that I found that the claimant was an employee of the respondent from 20 October 2020 to his effective date of termination.

Dismissal

26. There was no issue between the parties that the claimant’s employment had been terminated on 9 November 2024. This was accepted by both [NAME_7] and the claimant in evidence where they both viewed 24 October 2024 as being the date that notice was given and 9 November 2024 as being the effective date of termination. I found that the claimant was dismissed on 9 November 2024 as set out in the facts above.

[NAME_1]: 6008145/2025

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Time Limits 27. In oral evidence it was agreed that the claimant worked for a further two weeks for the respondent after the meeting on 24 October 2024. This resulted in the claimant’s employment ending on 9 November 2024.The presumed date when the claim should have been presented was 9 February 2025 which is three months from the effective date of termination. ACAS was engaged on 26 January 2025 within the three-month time limit. The ACAS period ended on 13 February 2025 with the claimant having one month from the date the certificate was issued within which to present his claim. The claim was presented on 10 March 2025 meaning the claim was presented in time.

What was the reason for the dismissal?

28. The respondent bears the burden of showing the reason for the dismissal and that it was a fair reason. The respondent alleged that the reason for the dismissal was due to redundancy in that the business was downsizing due to the ill health of [NAME_7] who was the wife of [NAME_7].

Redundancy

29. [NAME_7]’s evidence was that by 24 October 2024 [NAME_7] had been diagnosed with cancer and had received a terminal prognosis of a matter of months. The decision was taken to communicate this to all the staff at a meeting on 24 October 2024 and to explain that there would be a reduction in business which would require a downsizing of the staff. [NAME_7] asserted that he is currently the only level 3 rope access technician at the respondent with two other junior members of staff who are not level 3 accredited.

30. The claimant accepted in evidence that [NAME_7]’s condition had been mentioned at the meeting on 24 October 2024 but asserted that his dismissal was not due to her condition and its effect on the business but due to the respondent wishing to dismiss the claimant to avoid any liability for sums owed to him.

31. The claimant was not the only member of staff who was dismissed by the respondent on 24 October 2024. [NAME_8] was also dismissed at the same time and he stated in evidence that it was due to [NAME_7]’s condition. [NAME_8] was present at the meeting on 24 October 2024. I found that [NAME_7]’s condition was mentioned at the meeting on 24 October 2024 and was said to be the reason that the business could only continue for another two weeks.

32. It was evident from [NAME_7]’s evidence that by the end of October 2024 [NAME_7] was struggling in her role at the business and was no longer able to

[NAME_1]: 6008145/2025

10 continue. [NAME_7] was caring for her at the time and for their children and he was no longer able to run a large business as well as be a primary carer.

33. I found that the reason for the dismissal was redundancy as the business was expected to diminish. [NAME_7]’s evidence was that the business is now significantly smaller than it was when the claimant was employed. This is because the amount of work had declined and the number of employees required was fewer than before.

Was the redundancy procedure fair?

34. The respondent accepted that there was no formal procedure carried out because it thought that the claimant was an independent contractor and not an employee. The respondent did not have a redundancy procedure in place and while it informed the staff that the business was going to diminish it did not hold any consultations, there was no selection process, there was no offer of alternative employment and there was no appeals process. I found that the redundancy process was not fair.

Likelihood of dismissal had the procedure been fair

35. I considered whether had there been a fair process in place what the likelihood of the claimant being dismissed would be and applied the guidance in the [NAME_1] of Polkey in coming to my decision.

36. The respondent had followed an informal procedure by holding a meeting on 24 October 2024 and giving the claimant and the rest of the staff two weeks’ notice. Had the respondent held consultations, this would not have changed the outcome in that the business was going to downsize due to [NAME_7]’s ill health.

37. Had the respondent created selection criteria this would still have resulted in the claimant being part of the pool of staff selected for redundancy. The claimant and other members of staff were made redundant at the same time for the same reasons. The same notice period was given to those members of staff and the respondent continued to find work for staff during that two week notice period.

38. The claimant was dismissed because he was a level 3 rope access technician, the same level as [NAME_7], and only one was needed for a smaller business. I have considered that the respondent was a family run business and that it was highly regulated and specialised. I have considered that a level 3 rope access technician is a more advanced role which includes the ability to supervise less experienced colleagues.

39. I have considered whether the claimant could have been offered an alternative job. Given the significant reduction in work and the need for employees and that Mr

[NAME_1]: 6008145/2025

11 [NAME_7] was the only level 3 left in the respondent business there was no alternative job that would have been suitable for the claimant. The only other two employees were junior colleagues who were not level 3 qualified. The claimant asserted that he was let go while colleagues with less experience remained. This was a business decision made by the respondent based on the fact that work would be significantly reduced and [NAME_7] was unable to run a larger business on his own. It is likely that there would only have been a need for one such qualified member of staff even if selection criteria had been applied.

40. I found that even if the respondent had considered whether there was another role to offer to the claimant there would have been no other role because there were only three members of staff retained. They were [NAME_7] as the level 3 qualified member of staff and two junior members of staff. There was no other role that would have been appropriate for the claimant in those circumstances.

41. I found that, although the dismissal was unfair on the basis that there was no redundancy procedure followed, the likelihood of the claimant being dismissed was one hundred percent. This is because of the issues with [NAME_7]’s health at the time and the fact that [NAME_7] needed to care for her and their family. This resulted in the respondent being unable to continue business as before and a downsizing of the business to make it more manageable for [NAME_7] to run on his own.

42. Had the correct redundancy procedure been followed, taking into account the size and resources of the respondent, this would have likely lasted about two weeks. The claimant is entitled to a payment to reflect the two additional weeks.

Unlawful deduction of wages

43. The claimant’s representative asserted that the wages in question related to holiday pay although this was not pleaded in the claim form. There was no evidence of when or if the claimant had taken holiday in the relevant period. This was not sufficiently dealt with in questioning. No other arrears of pay were referenced during the hearing.

44. I do not find that the claimant is owed holiday pay or any other arrears of pay.

Notice pay

45. The claimant was an employee who was employed by the respondent for 4 years and is entitled to a notice period. There is no written contract but the respondent had given two weeks’ notice to the claimant. This does not appear to have been disputed by the claimant at the time and was not raised in submissions by the claimant’s

[NAME_1]: 6008145/2025

12 representative. Although the box for notice pay was ticked in the claim form, the particulars of claim did not specifically reference notice pay.

46. The respondent’s response form also stated that two weeks’ notice was given. The claimant accepted in evidence that he had been given oral notice but that his view was that notice had to be in writing. I found that two weeks’ notice was given to the claimant. The claimant was continuously employed by the respondent for four years and was entitled to a statutory notice period of four weeks. The claimant is owed a further two weeks’ notice by the respondent.

Loss of statutory rights

47. For the reasons above I found that the claim for loss of statutory rights is not well founded and is dismissed.

Failure to provide employment particulars

48. All parties agreed that there was no written employment contract between the claimant and the respondent. I found that the respondent had failed to provide employment particulars for the reasons set out above.

Remedy 49. A hearing is to be listed for half a day for remedy.

Conclusion

50. The reason for dismissal was redundancy.

51. For the reasons set out above the claimant’s claim for unfair dismissal is well founded. There was a one hundred per cent chance that the claimant would have been dismissed had a fair redundancy procedure been carried out by the respondent.

52. For the reasons set out above the claimant’s claim for unlawful deduction of wages is not well founded and is dismissed.

53. For the reasons set out above the claimant’s claim for notice pay is well founded.

[NAME_1]: 6008145/2025

13 54. For the reasons set out above the claimant’s claim for loss of statutory rights is not well founded and is dismissed.

55. For the reasons set out above the claimant’s claim for failure to provide employment particulars is well founded.

Approved by Employment Judge MJ Smith 13 April 2026

Judgment sent to the parties on: 14 May 2026 …………………………………… For the Tribunal:

……………………………………

Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal- decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/