Case 1804636/2020 · Employment Tribunal
Mr M Leader v ES Cleaning Ltd Heard: Remotely (by video link) — 2021
- Case reference
- 1804636/2020
- Decision date
- 16 March 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge S Shore NLM
- Panel members
- Mr N Pearse, Mr J Howarth
Parties
2 namedClaimant
Mr M Leader
Key findings
Tribunal's reasoningThe tribunal found that Mr Leader's continuous employment with ES Cleaning Ltd began on 1 February 2020, when he started with the respondent, and rejected his case that his service dated back to 2011. On that basis, the ordinary unfair dismissal claim failed because he did not have two years' continuous service, and the TUPE-based dismissal claim also failed because the tribunal did not accept the asserted transfer basis and, in any event, he lacked two years' service.
Mr Leader's email grievance of 21 May 2020 was held to be a protected disclosure because it raised concern that the company was recouping money from HMRC under the furlough scheme. The tribunal nevertheless found that the disclosure was not the sole or principal reason for dismissal. It found the principal reason was misconduct relating to the Renault van, and that the respondent had carried out as much investigation as was reasonable, genuinely believed the allegations, and acted within the band of reasonable responses in dismissing him without notice for gross misconduct on 1 June 2020.
The misconduct findings turned on the tribunal's acceptance that the claimant had sold the van to Mr Cocker for £900 and that the account given by the claimant and Mr Cocker was contradictory; the tribunal described it as disingenuous at best and dishonest at worst. The tribunal also found the appeal and grievance process, handled by Mr Gardiner, was fair and reasonable and that the appeal was rejected on 23 June 2020.
The holiday pay claim failed because Mr Leader did not prove his entitlement or how the 16 days said to be outstanding were calculated. The unauthorised deduction of wages claim failed because he did not establish an unlawful deduction for the vehicle issue and because the respondent's payment of £4,559.48 net on 18 November 2020 exceeded the balance claimed. The breach of contract claim for notice pay failed because the dismissal was for gross misconduct and no notice was due.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal found the claimant's continuous employment began on 1 February 2020, so he did not have two years' continuous service and the ordinary unfair dismissal claim was outside jurisdiction. | Dismissed | — | — |
| Whistleblowing | The tribunal accepted that the 21 May 2020 grievance was a protected disclosure, but found it was not the sole or principal reason for dismissal; the principal reason was misconduct relating to the van. | Dismissed | — | — |
| Transfer of undertakings (TUPE) | The tribunal did not accept the claimed TUPE transfer basis for dismissal and also found the claimant lacked two years' continuous service. | Dismissed | — | — |
| Holiday pay | The tribunal held the claimant did not prove his holiday entitlement, how many days he had taken, or how the alleged 16 days outstanding had been calculated. | Dismissed | — | — |
| Unlawful deduction from wages | The tribunal did not find an unauthorised deduction in respect of the vehicle issue and noted that the respondent's payment of £4,559.48 net on 18 November 2020 exceeded the remainder of the claim. | Dismissed | — | — |
| Breach of contract | The breach of contract claim for notice pay failed because the tribunal found the claimant was dismissed for gross misconduct and was not entitled to notice. |
Legal tests applied
5 references- Burchell test
- s.98(4) ERA 1996
- Sainsbury's Supermarkets Ltd v Hitt
- section 43B ERA 1996
- section 103A ERA 1996
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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