Mrs L SEAGER v European Kitchens Ltd — 2019

Mrs L Seager was employed by European Kitchens Ltd as a sales design consultant from 11 April 2016 until dismissal on 8 May 2018, with notice expiring on 7 June 2018. The tribunal accepted that the principal reason for dismissal was capability, with conduct also relevant to her response to the warning process, and rejected the claimant's case that the dismissal was a sham to replace her with Mr Preston. It found that the dismissal followed a rapid sequence of warning and termination, with the claimant given no meaningful opportunity to improve, no notice that dismissal was being considered, no appeal, and no disclosure of the sales record relied on by the respondent.

The tribunal held that those defects made the dismissal procedurally unfair under s.98(4) ERA 1996 and said the respondent had breached the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015. It found there was a 50% chance that, if a fair procedure had been followed, the claimant would still have been dismissed fairly within two months from June 2018, and that her response to the disciplinary process justified a further 10% reduction for contributory fault. The basic award was reduced by 10% to £914.50, but the tribunal did not have enough information to calculate the full compensatory award at that stage.

On the wage elements, the tribunal found that commission was due on two contracts: Appleby and Stonier. It held that holiday pay had to include commission because commission was a regular part of the claimant's normal remuneration, applying Lock v British Gas and Bear Scotland v Fulton, and upheld the holiday pay claim for 1 January 2018 to June 2018 while leaving open a possible time-bar issue for the holiday year ending 31 December 2017. The written reasons record a £750 award for unpaid commission, and the written reasons do not set out a separate quantified determination on the wrongful-dismissal/breach-of-contract label. The tribunal also recorded entitlement to £350 for loss of statutory rights and travel costs, but did not quantify those items in the judgment because further remedy evidence was needed.