Davies v Droylsden Academy

An unlawful-deduction or contractual-pay claim requires findings on the employee’s contractual entitlement and on the sums properly payable by reference to the employment. The tribunal must then determine whether payment fell short. It cannot determine that issue by applying provisions governing the calculation or just apportionment of a week’s pay where those provisions are irrelevant.

A dismissal connected with a relevant transfer may be potentially fair where the employer establishes an economic, technical or organisational reason entailing changes in the workforce. The reason for dismissal is ordinarily identified from the decision-maker’s operative state of mind and the tribunal’s factual findings.

The Claimant’s employment transferred to the Respondent under Transfer of Undertakings (Protection of Employment) Regulations 2006 when the Respondent brought its lettings operation in-house. She was later dismissed for redundancy. The Employment Tribunal held that the dismissal was for an organisational reason entailing changes in the workforce, was fair, and that all sums due after termination had been paid.

The Claimant appealed. She challenged the reason for, and fairness of, her dismissal, the conclusion that no suitable alternative vacancy existed, and the rejection of her claim for breach of contract and unlawful deductions from wages.

1. Appeal allowed in part. The appeal against the findings on dismissal and fairness was dismissed. The appeal on the unlawful-deduction and breach-of-contract claim was allowed and remitted to a fresh tribunal.

2. The Employment Judge was entitled to find that the Claimant’s employment had transferred and that the ultimate decision-maker, Ms Brady, had made a fresh and genuine assessment. Her conclusion that the dedicated managerial role was no longer required because its duties were performed by existing staff supported the finding of an organisational reason entailing changes in the workforce. The Tribunal’s findings on a pool of one, consultation and the absence of suitable alternative employment were permissible on the evidence.

3. The Claimant’s treatment after transfer might have amounted to a repudiatory breach, but she did not rely upon it as a constructive-dismissal claim. The Tribunal was therefore entitled to analyse the reason and fairness of the subsequent dismissal by reference to the decision actually made.

4. The Employment Judge erred by using the approach to a week’s pay and just apportionment under section 229 of the Employment Rights Act 1996. Those provisions were irrelevant to the claim. The relevant inquiry under sections 13(3) and 27 was what pay, including any bonus or commission, was contractually or otherwise properly payable by reference to the employment, what was actually paid, and whether there was a shortfall.

5. Evidence indicated a possible shortfall. The contractual reference to a discretionary bonus did not make the outcome inevitable, because the evidence might show a variation of the contract or a different entitlement. Further findings and evidence were necessary. The pay claim was remitted to a fresh tribunal for rehearing.

• Employment Appeal Tribunal: Allowed the appeal only on the pay claim and remitted that issue to a fresh tribunal.
• Manchester Employment Tribunal: By a judgment promulgated on 27 August 2015, held that the Claimant was fairly dismissed for redundancy and that she had received all sums due.