Mr D Vergara v Plowman and Partners — 2019

Mr Vergara worked as a cleaner for Plowman and Partners from 10 February 2010 to 5 November 2018 on hours of 6pm to 9pm Monday to Friday. The tribunal found that his timekeeping had been an issue for some time, including a formal warning in April 2017, an email exchange in July 2018, a first written warning dated 25 September 2018, and a further warning on 17 October 2018. It found that the respondent's disciplinary procedure required a hearing before warnings were issued, but no hearing took place before either warning, and the 17 October document was not a final written warning under the procedure.

At the dismissal hearing on 29 October 2018, the tribunal found that no documentary evidence of the alleged lateness was produced to the claimant in advance, that the evidence before the dismissing managers was unclear, and that it was not established whether the decision-makers were told that there had been no final written warning. Applying section 98 ERA 1996, British Homes Stores Ltd v Burchell, Iceland Frozen Foods Ltd v Jones, Foley v Post Office / Midland Bank plc v Madden, Sainsburys Supermarkets Ltd v Hitt, and Wincanton Group plc v Stone, the tribunal held that the reason for dismissal was conduct but that the process was unreasonable and the decision to dismiss fell outside the band of reasonable responses. It said that, at most, a reasonable employer would have issued a final warning for the alleged lateness on 22 October 2018.

The claim for breach of contract failed because the claimant accepted that he had been paid four weeks' pay in lieu of notice on termination and a further four weeks' payment in March 2019. On remedy, the tribunal awarded a basic award of £789.25 and a compensatory award of £1,815.65, making a total award of £2,604.90. It found a prescribed element of £1,515.65 for recoupment purposes and applied a 25% reduction to the compensatory loss to reflect the chance of a fair dismissal later if the lateness had continued.