Mr M Charlesworth v Buttershaw Lane Working Men’s Club — 2022

Mr Charlesworth worked as steward at Buttershaw Lane Working Men’s Club until he was dismissed with immediate effect on 2 December 2020 after his wife tested positive for COVID-19. The tribunal accepted that the Club’s reason for dismissal was conduct: it found that the dismissal decision-makers genuinely believed he had attended the Club on 28 to 30 October 2020 when he should have been self-isolating, and that they had reasonable grounds for that belief after the investigation and appeal. It also accepted that they believed he knew he was required to stay at home, and that serious misconduct was therefore in issue.

Applying the Burchell approach and s.98(4) ERA 1996, the tribunal nevertheless held that dismissal was outside the range of reasonable responses. Its decisive reason was that members of the Club’s management committee were themselves present while Mr Charlesworth was working and did not stop him, including Mr Womersley, who had specific responsibility for giving him instructions. The tribunal concluded that the decision-makers did not properly take account of that committee involvement when deciding that dismissal was warranted, and for that reason alone the unfair dismissal claim succeeded.

The notice pay claim failed. The tribunal found that Mr Charlesworth was in close contact with his wife for the purposes of the COVID Regulations, knew he should have remained at home, and came into the Club on 28, 29 and 30 October 2020 while under that obligation. It further found that he was in breach of his contractual duty to take reasonable care for the health and safety of others and of the implied duty not to act so as to destroy or seriously damage trust and confidence. On that basis, the Club was entitled to dismiss him without notice.

At remedy, the parties agreed the basic calculation of the basic award at £5,093.64 and the compensatory components at £7,114.12 loss of earnings plus £350 for loss of statutory rights. The tribunal rejected the Club’s mitigation argument but reduced both the basic and compensatory awards by 80% because of Mr Charlesworth’s culpable and blameworthy conduct in coming in when he should have been isolating and later going on holiday after testing positive. The resulting award was £1,018.73 basic award and £1,492.82 compensatory award, making a total of £2,511.55. The recoupment section stated that the prescribed element was £1,422.82 for the period 3 December 2020 to 27 May 2021, with the balance above the prescribed element being £1,088.73.