In person For the v Respondent — 2021

The tribunal found that the claimant's continuous employment for these proceedings began on 5 March 2016, not 2011, because there was a break between July 2015 and March 2016 when the respondent believed he did not have proof of right to work and there was no agreement that employment continued. It also found that from 2018 onwards part of the claimant's pay was paid in cash, that both parties knew tax was not being paid on that element, and that the claimant knowingly participated in an unlawful arrangement. That illegality mattered to claims that depended on the off-books pay element.

On the discrimination issues, the tribunal rejected the age discrimination claim because there was no evidence that the dismissal was because of age and the claimant was not even the oldest employee. The victimisation claim also failed because the claimant's written complaints and alleged oral complaints did not amount to a protected act alleging age discrimination, and the tribunal found no retaliatory detriment in the way he was asked to return to work. The tribunal did not accept the claimant's account of the basement conditions and found that the health and safety concerns he raised were not genuine or reasonable.

For dismissal, the tribunal found that the respondent's reason for ending employment on 15 January 2021 was the claimant's refusal to return to work on the revised terms offered. It held that the claimant had not shown a reasonable belief in serious and imminent danger under s 100 ERA 1996, so the automatic unfair dismissal case failed. It also found that the later offer of 24 hours per week, with a possible increase to 40 hours when work allowed, was within the scope of the oral contract and that the dismissal was fair in all the circumstances. The unfair dismissal claim was nevertheless dismissed because the claim was presented on 11 February 2021 before the effective date of termination, which the tribunal fixed at 13 February 2021 under the four-week statutory notice period.

The remaining claims also failed. The tribunal held that the claimant was not entitled to notice pay because he was not ready and willing to work during the notice period, and it refused the claim for higher furlough pay because it was based on the unlawful off-books element of his earnings. The Working Time Regulations holiday-pay claim for the 2019/2020 leave year failed because the claimant had a reasonable opportunity to take leave and the coronavirus carry-forward provision did not apply to the period he relied on. The tribunal also found that he had not requested accompaniment to the appeal meeting, and it made no award under s 38 of the Employment Act 2002 because none of his substantive claims succeeded.