Ms F McMillan v McMillans Accountants Ltd: 4101264/2020
| Judgment Date | 25 November 2020 |
| Citation | 4101264/2020 |
| Published date | 23 March 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4101264/2020
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Held in Glasgow on 26, 27, 28, 29, 30 October 2020 and 2 November 2020
Employment Judge: L Doherty
Ms F McMillan Claimant
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Represented by:
Ms Davis –
Solicitor
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McMillans Accountants Ltd Respondent
Represented by:
Mr Chapman –
Owner
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
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The judgment of the Employment Tribunal is that;
(1) the claim of breach of contract succeeds;
(2) the claim of unfair dismissal succeeds,
(3) the respondent shall pay the claimant damages in respect of breach of
contract and unfair dismissal of £39,749.50
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REASONS
1. The claimant presented a claim of unfair dismissal and breach of contract on
the 28 February 2020. The claim was resisted on all grounds. A Preliminary
Hearing (PH) for case management purposes took place more before
Employment Judge Meiklejohn on 24 June 2020 and a final hearing was fixed
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over a period of six days.
2. The claimant was represented by her solicitor, Ms Davies and the
respondents were represented by Mr Chapman, the owner of the respondent
business.
4101264/2020 Page 2
3. In the unfair dismissal claim the issue for the Tribunal is whether the claimant
had been dismissed for a potentially fair reason and whether that dismissal
was fair in terms of Section 98 of the Employment Rights Act 1996 (the ERA).
4. In the event the Tribunal is satisfied that dismissal was unfair, it requires to
consider remedy, which involves the assessment of compensation and
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whether there should be an adjustment to this on the basis of contributory
conduct, the principles to be derived from the case of Polkey, mitigation of
loss, and failure to comply with the ACAS Code of Practice.
5. In the claim for damages of breach of contract, the issue the Tribunal is
whether there had been a breach of contract on the part of the claimant
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entitling the respondent to dismiss her without notice. In the event that claims
succeeded the Tribunal has to consider remedy.
6. For the respondents the Tribunal heard evidence from;
▪ Mr Chapman;
▪ Mr Chris Lowe- Accountant in the respondent business;
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▪ Mr James Cassidy- Accountant in the respondent business;
▪ Mr Kieran McCafferty- Accountant in the respondent business;
▪ Mr John MacArthur-Accountant in the respondent business and
Trainee Manager;
▪ For the claimant, evidence was given by;
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▪ The claimant;
▪ Mr Gordon McMillan- the claimant’s father;
▪ Ms Anne Marie Cassidy- Owner of Christina’s Home Care, a
former client of the respondent business;
▪ Mr Gordon Thompson - a former client of the respondent’s
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business.
4101264/2020 Page 3
7. Both sides lodged documentary productions.
Findings in Fact
8. From the evidence before it the Tribunal made the following findings in the
fact.
9. The respondents are a small accountancy firm. Prior to the claimant’s
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dismissal they had six employees in total. The respondents operate out of
small office premises which the public have access to.
10. Gordon McMillan set up McMillan’s Accountants as a sole trader in
September 2010. He employed the claimant from the inception of the
business, her employment commencing on 1 September 2010. That business
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was incorporated into the respondent company on 1 May 2014 at which point
the claimant’s employment transferred to the respondents. Mr Chapman
acquired the respondent business on 2 August 2018 by purchasing the share
capital of the business.
11. When Mr Chapman acquiring the respondent business both he and Mr
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McMillan were legally represented.
12. Negotiations took place between them around the terms under which the
claimant was employed by the respondents relative to her notice period.
13. The claimant entered into an employment contract with the respondent’s
which she signed on 1 August 2018 which contained the following clause;
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’12.1 In the relation to the period from the date of the signing of this
contract to the date following five years later, we may end your
employment at any time by giving you not less than 12 months prior
written notice. After this date, we may end your employment at any time
by giving you no less than three months prior written notice.
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12.2 You may end your employment at any time by giving us not less than
three months prior written notice.
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