Mr Harry Simmons v Mr Mark Brown t/a Strongman Moustache — 2022

Mr Harry Simmons was employed by Mr Mark Brown t/a Strongman Moustache as an apprentice barber from 30 May 2018. The tribunal found that he had regular reviews and one-to-one meetings which explained his contract, disciplinary procedure and restrictive covenants, and it rejected his allegation that those records had been fabricated. It also found that his pay had increased from £4.00 an hour to £10.20 an hour by the time of dismissal.

The tribunal found that Mr Simmons deliberately compiled client contact details, used social media and SMS messages to contact clients, and told them he would do home cuts and later work as Skeleton Barbers. It accepted that Mr Brown only learned of the conduct after a complaint from Mr Benger on 23 July, suspended Mr Simmons, and held a Zoom disciplinary hearing the next day. At that hearing Mr Simmons accepted sending the messages but disputed the contractual restrictions and was dismissive about the process and the contract.

The unfair dismissal, automatic unfair dismissal and whistleblowing claims failed. The tribunal held that the reason for dismissal was misconduct, not the March 2020 furlough complaint or the later HMRC report. It found the March conversation could amount to a protected disclosure because Mr Simmons had raised possible fraud in backdating furlough, but his complaint about being paid only 80% for 1 to 21 March was a private pay dispute and not in the public interest. The later HMRC report was not known when the dismissal decision was made. Applying s.98(4) ERA 1996 and the Burchell approach, the tribunal found Mr Brown had a genuine and reasonable belief in misconduct, carried out a reasonable investigation, and acted within the range of reasonable responses; it also held that any procedural defects would not have changed the outcome under Polkey.

The wrongful dismissal claim also failed because the tribunal found gross misconduct. By contrast, the unlawful deduction from wages claim succeeded: the respondent accepted that Mr Simmons had been paid only 80% for 1 to 21 March 2020 despite working his full contractual hours, and the tribunal held that deductions from final holiday pay for certain absences were unauthorised because they were not covered by the contract or supported by prior written notice. The tribunal also found that there had been a failure to provide a written statement of changes when pay increased, but it refused any s.38 EA 2002 award because of exceptional circumstances. No monetary totals were quantified in the reasons.