Claimant v DAVP Limited T/A Boulevard

The tribunal found the respondent committed a fundamental breach of contract by failing to pay wages for January, February and March 2024 and failing to make pension payments into the NEST scheme for November and December 2023. Following Cantor Fitzgerald, deliberate non-payment of any element of remuneration constitutes a repudiatory breach. The claimant resigned within 72 hours of the respondent's refusal to pay even part of the arrears, and did not affirm the breach.

The respondent had a potentially fair reason (SOSR) for non-payment of January-March wages due to Amazon's freezing of trading funds causing a cash flow crisis. However, the dismissal was procedurally and substantively unfair under s98(4). When the claimant requested payment of January's wages to enable her to continue working, the respondent had received some funds and improved its projections from 92% to 50% below target. It fell outside the band of reasonable responses to pay nothing at all with no definite timeline for even a token payment after the claimant had worked three months unpaid. There was also no potentially fair reason for non-payment of November/December 2023 pension contributions, which was admitted to be an administrative error.

The claimant performed work during January, February and March 2024 and was not paid for that work. The respondent admitted the wages were not paid. The deduction was in breach of the contract of employment and therefore unlawful. There were no excepted reasons within the meaning of the Employment Rights Act 1996 for the deductions.

The respondent failed to pay the claimant notice pay (one calendar month) following termination. The tribunal found the claimant was constructively dismissed and entitled to notice. The respondent's counterclaim alleging gross misconduct that would justify summary dismissal failed because there was insufficient evidence the claimant committed any misconduct. The timing of the allegations immediately following the statutory demand was suspicious, and the investigation was vague with no audit trail documents linking alleged problematic transactions to the claimant.