Conveyancer who lost job in the pandemic successfully obtains redundancy payment

Catriona Pattullo had been employed by solicitor John Paterson Gray, who had traded as A&R Robertson & Black as well as operating an estate agency business, until March 2021.

The case was heard by employment judge Antoine Tinnion, with the claimant being represented by her partner and the respondent appearing in person.

Unanswered request

The claimant began working for the respondent as a conveyancer in February 2006. In June 2020, she adopted a baby girl with her partner and went on adoption leave. Prior to this, she had been on furlough after the initial outset of the Covid-19 pandemic. It was confirmed that the claimant continued to accrue contractual holiday leave entitlement during this period.

On 1 April 2021, the Law Society of Scotland withdrew the respondent’s practising certificate and he stopped working as a solicitor. However, the claimant did not learn of the closure until 19 April when she was sent an email stating that Robertson & Black ceased to exist as of 1 April. The estate agency business was unaffected by the removal of the respondent’s practice certificate and continued to trade.

The claimant subsequently attempted to obtain her unpaid holiday pay from the respondent, without success, and sent a formal resignation email on 24 May due to her uncertainty about whether she was still employed. In an email of 12 May 2021, she also requested a redundancy payment, a request which was also unanswered.

It was the claimant’s position that she had a statutory right to a redundancy payment under section 162 of the Employment Rights Act 1996. The respondent no longer needed to continue employing people to provide legal services following the withdrawal of his practice certificate and had not established any other reason she had been dismissed.

Genuine redundancy situation

Employment judge Tinnion, in his decision, observed: “The respondent has not proved the claimant was not dismissed by reason of redundancy. Indeed, the respondent made no attempt to suggest in either his questions to the claimant, his oral evidence, or his closing submissions to the Tribunal, that the Claimant was not dismissed by reason of redundancy.”

He continued: “The respondent did not canvass any reason for the claimant’s dismissal other than her redundancy. It is clear and obvious in this case that the claimant’s employment was terminated because of a genuine redundancy situation.”

Turning to the claimant’s entitlement to holiday pay, the judge began: “The Tribunal accepts the claimant had a contractual right to 6 weeks annual leave in addition to bank holidays. However, in order to found a breach of contract claim, the Tribunal must also be satisfied that there was a term in her employment contract giving her a contractual right, on termination of that contract, to be paid for any accrued untaken annual leave.”

However, he added: “As a matter of law, the claimant continued to accrue an entitlement to statutory annual leave during her adoption leave. In the period 17 June 2020 – 19 April 2021, the claimant accrued an entitlement to 103.7 hours paid annual leave. The claimant took no annual leave in the period 17 June 2020 – 19 April 2021. The value as of 19 April 2021 of the Claimant’s accrued untaken annual leave entitlement was £1,507.80. The 2nd Respondent has not paid this sum (or any part thereof) to the Claimant.”

The judge concluded: “The respondent did not put to the claimant in cross-examination, or suggest to the Tribunal in closing submissions, that he gave the claimant the opportunity to take annual leave during her period of adoption leave, or encouraged her to take paid annual leave during her period of adoption leave, or informed her that her right to annual leave which she was accruing during her period of adoption leave would be lost at the end of the 2020/2021 holiday year. On that basis, the Tribunal finds that the Claimant’s right to annual leave which she accrued in the period 17 June 2021 – 31 March 2021 during the 2020/2021 holiday year did not lapse.”

The Tribunal therefore directed the respondent to pay the claimant a total of £8,052.80, amounting to 17.5 weeks of statutory redundancy payment and 103.7 hours of holiday pay.