Mr Tomasz Janicki v Northcot Brick Limited (the "First Respondent") EH Smith (Builders Merchants) Limited (the "Second Respondent") Heard: By a Cloud Virtual Platform ("CVP") at Exeter — 2024

Mr Tomasz Janicki worked for Northcot Brick Limited from 13 January 2020 until his dismissal on 4 August 2023. The tribunal held that he was not employed by EH Smith (Builders Merchants) Limited and dismissed all claims against the Second Respondent. The claims before the tribunal were unfair dismissal, breach of contract for notice, unlawful deduction from wages, failure to provide written particulars, and holiday pay.

On unfair dismissal, the tribunal accepted that the Respondent genuinely believed the Claimant had engaged in time wasting and had deliberately damaged forklift fork tynes, and that those beliefs were based on reasonable grounds. It nevertheless found that the second disciplinary process was procedurally unfair: the investigation was inadequate, the Claimant was not properly interviewed, the witness material was unclear and unreliable, he was not given a proper opportunity to challenge the evidence, and the decision to dismiss had effectively been reached in advance. The tribunal therefore held that the dismissal was outside the range of reasonable responses and unfair under s98(4) ERA 1996.

On remedy for unfair dismissal, the tribunal found there was a 75% chance the Claimant would have been fairly dismissed in any event and said the compensatory award should be reduced by 75% on Polkey grounds. It also found an unreasonable failure to follow the ACAS Code and said the compensatory award should be increased by 20%. Although it found the Claimant's conduct was blameworthy, it decided not to reduce the basic award or further reduce the compensatory award, to avoid double counting. The merits judgment said the remedies would be dealt with further at a hearing listed for 26 February 2025.

The notice claim failed because the tribunal found the Claimant had committed gross misconduct, so the Respondent was entitled to dismiss him without notice. The unlawful deduction from wages claim also failed because the tribunal found the Claimant agreed to the reduction in hours from 45 to 40 per week. The written particulars claim succeeded because the Respondent admitted that it had not provided a section 1 ERA 1996 statement; the tribunal said it was just and equitable to award four weeks' gross pay under s38 of the Employment Act 2002. The holiday pay claim succeeded because the tribunal found the Claimant's leave year began on 13 January 2023, that he had not taken any annual leave in 2023, and that 16 days of untaken holiday pay were due under regulation 14(2) of the Working Time Regulations 1998.