Case 1304356/2021 · Employment Tribunal
Mr M Murphy v Felix Inns Limited t/a The Malt Shovel at Barston — 2022
- Case reference
- 1304356/2021
- Decision date
- 2 September 2022
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Hindmarch Appearances
- Venue
- Birmingham
Parties
2 namedClaimant
Mr M Murphy
Key findings
Tribunal's reasoningMr Murphy had worked at The Malt Shovel since 2000 and transferred to the respondent in July 2018 under TUPE. After the pub reopened following lockdown, the tribunal found he had been reluctant about returning to work, had expressed uncertainty about whether he would still be there, and had struggled with communication and motivation as the kitchen became busier.
The respondent investigated 14 allegations concerning food hygiene, food storage, and staff management. The tribunal accepted that 10 allegations were proved, including leaving the food store unlocked for supplier deliveries, cross-contamination, unsafe storage of fish and mussels, leaving food uncovered and unlabelled, poor hand hygiene, double-dipping, re-using gravy or jus, allowing the fish supplier to eat in the galley, allowing that practice to continue after being told to stop, and poor communication with chefs. It found the investigation reasonable, the evidence supportive of the respondent's concerns, and the claimant's explanations not accepted.
Applying section 98(4) ERA 1996, the Burchell test, and the band of reasonable responses approach, the tribunal held that dismissal for gross misconduct was within the range of reasonable responses. It rejected the claimant's procedural fairness arguments, including the criticisms of suspension, witness statements, and the appeal process, and concluded that the unfair dismissal claim failed.
The wrongful dismissal claim also failed because the tribunal found the conduct amounted to gross misconduct and therefore a repudiatory breach of contract justifying summary dismissal. On the money claims, the tribunal treated the unpaid pension, furlough-period payments, June 2021 salary and profit-related bonus as claims for unlawful deductions from wages and/or breach of contract. It held that the pension, furlough and bonus claims were out of time, and that the June salary promise was not contractually enforceable, so no compensation was awarded.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal found the respondent had a fair reason for dismissal based on conduct, that its investigation was reasonable, and that summary dismissal for gross misconduct fell within the band of reasonable responses. The procedural fairness objections were rejected. | Dismissed | — | — |
| Wrongful dismissal | The tribunal held that the 10 proven misconduct allegations amounted to gross misconduct and therefore a repudiatory breach of contract, so the respondent was entitled to dismiss without notice. | Dismissed | — | — |
| Breach of contract | The money claims for unpaid pension contributions, furlough-period payments, June 2021 salary and profit-related bonus were treated as claims for unlawful deductions from wages and/or breach of contract. The tribunal held the pension, furlough and bonus claims were out of time, and that the June salary promise was not contractually binding, so no award was made. | Dismissed | — | — |
Legal tests applied
5 references- s.13 ERA 1996
- s.98(4) ERA 1996
- Burchell test
- band of reasonable responses
- repudiatory breach of contract
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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